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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Freedom of Information (Miscellaneous) Amendment
Bill 2018
A BILL FOR
An Act to amend the
Freedom
of Information Act 1991
.
Contents
Part 2—Amendment of Freedom of
Information Act 1991
4Amendment of section
3—Objects
13AAcknowledgement
of application
8Amendment of section 18—Agencies may
refuse to deal with certain applications
18ADocuments that
cannot be found or do not exist
10Amendment of section 20—Refusal of
access
11Amendment of section 23—Notices of
determination
12Amendment of section 29—Internal
review
13Amendment of section 39—External
review
49AImproper
direction or influence
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Freedom of Information (Miscellaneous)
Amendment Act 2018.
This Act will come into operation 6 months after the day on which it
is assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Freedom of Information
Act 1991
4—Amendment
of section 3—Objects
(1) Section 3(1)—delete "consistently with the principle of the
Executive Government's responsibility to Parliament" and substitute:
consistently with the principles of representative democracy (including the
Executive Government's responsibility to Parliament)
(2) Section 3(1)(b)—delete "by members of the public in" and
substitute:
, scrutiny, comment and review by members of the public in relation
to
(3) Section 3(1)—after paragraph (b) insert:
and
(c) to recognise that documents held by government are a public resource
to be held on behalf of the public and managed for public purposes by the
government.
After section 8 insert:
8A—Public interest
(1) In deciding whether disclosure of matter contained in a document
would, on balance, be contrary to the public interest for the purposes of this
Act, the following factors must be taken into account:
(a) the general public's need for government information to be
accessible;
(b) whether the disclosure would contribute to or hinder debate on a
matter of public interest;
(c) whether the disclosure would inform a person about the reasons for a
decision;
(d) whether the disclosure would provide the contextual information to aid
in the understanding of government decisions;
(e) whether the disclosure would inform the public about the rules and
practices of government in dealing with the public;
(f) whether the disclosure would enhance scrutiny of government
decision-making processes and thereby improve accountability and
participation;
(g) whether the disclosure would enhance scrutiny of government
administrative processes;
(h) whether the disclosure would promote or hinder equity and fair
treatment of persons or corporations in their dealings with
government;
(i) whether the disclosure would promote or harm public health or safety
or both public health and safety;
(j) whether the disclosure would promote or harm the administration of
justice, including affording procedural fairness and the enforcement of the
law;
(k) whether the disclosure would promote or harm the economic development
of the State;
(l) whether the disclosure would promote or harm the environment and or
ecology of the State;
(m) whether the disclosure would promote or harm the interests of an
individual or group of individuals;
(n) whether the disclosure would prejudice the ability to obtain similar
information in the future;
(o) whether the disclosure would prejudice the objects of, or
effectiveness of a method or procedure of, tests, examinations, assessments or
audits conducted by or for an agency;
(p) whether the disclosure would have a substantial adverse effect on the
management or performance assessment by an agency of the agency's
staff;
(q) whether the disclosure would be contrary to the security or good order
of a prison or detention facility;
(r) whether the applicant is resident in Australia;
(s) whether the matter is related to the business affairs of a person
which if released would cause harm to the competitive position of that
person;
(t) whether the matter is related to the business affairs of a person
which is generally available to the competitors of that person;
(u) whether the matter is related to the business affairs of a person,
other than an agency, which if it were information of an agency would be exempt
information.
(2) The following factors must not be taken into account in deciding
whether access to a document would, on balance, be contrary to the public
interest for the purposes of this Act:
(a) the seniority of the person who is involved in preparing the document
or who is the subject of the document;
(b) that access to the document could result in embarrassment to the
government;
(c) that disclosure would cause a loss of confidence in the
government;
(d) that access to the document could result in any person misinterpreting
or misunderstanding the document.
After section 13 insert:
13A—Acknowledgement of
application
An agency that receives an application under section 13 must, as soon
as practicable after receiving the application, give to the applicant written
notice—
(a) specifying—
(i) the date on which the application was received by the agency;
and
(ii) the name of a contact person within the agency (being an accredited
FOI officer); and
(b) summarising—
(i) the processes that will apply to the application (including whether
the application is to be transferred under section 16 and the time within
which the application must be dealt with); and
(ii) the rights of review and appeal conferred by this Act.
After section 14A insert:
14B—Remittance of fees
If an agency fails to determine an application within 30 days after
receiving the application or, if the period for determining the application is
extended under section 14A, within the period as so
extended—
(a) the agency must refund any fee paid by the applicant in relation to
that application; and
(b) if access is granted to a document in respect of that application
(whether on review or not), no fee may be charged under this Act in relation to
the granting of access to the document.
8—Amendment
of section 18—Agencies may refuse to deal with certain
applications
Section 18—after subsection (2) insert:
(2aa) For the purposes of subsections (1) and (2), an
application that would, if dealt with by 1 person within the agency, be
likely to take more than 40 hours to be so dealt with will be taken to be
an application that would, if carried out, substantially and unreasonably divert
the agency's resources from their use by the agency in the exercise of its
functions.
After section 18 insert:
18A—Documents that cannot be found or do not
exist
(1) An agency may
determine that it is not possible to give access to a document
if—
(a) all reasonable steps have been taken to find the document;
and
(b) the agency is satisfied that the document—
(i) is in the agency’s possession but cannot be found; or
(ii) never existed.
(2) If an agency makes a determination that it is not possible to give
access to a document under
subsection (1)
it must, on making the determination, advise the applicant of the
determination by written notice that sets out details of the efforts made to
locate the document including—
(a) how, when and where searches were conducted; and
(b) the records management systems and databases searched (including a
description of each system or database and the search terms used).
10—Amendment
of section 20—Refusal of access
Section 20—after subsection (1) insert:
(1a) An agency must, in considering whether to refuse access to an exempt
document, act consistently with the objects of this Act in section 3 and
the principles of administration of this Act in section 3A.
11—Amendment
of section 23—Notices of determination
Section 23(2)—after paragraph (g) insert:
and
(h) if the determination is one to which section 29(6)
applies—the reason why the determination is not subject to internal review
under that section (which must, if the determination was made at the direction
of another person, include the name of that other person and the extent of the
direction, such as whether the reasons for the determination were included in
the direction).
12—Amendment
of section 29—Internal review
(1) Section 29—after subsection (2) insert:
(2a) An agency that receives an application for internal review under this
section must, as soon as practicable after receiving the application, give to
the applicant written notice—
(a) specifying—
(i) the date on which the application was received by the agency;
and
(ii) the name of a contact person within the agency (being an accredited
FOI officer); and
(b) summarising—
(i) the effect of subsection (5); and
(ii) the rights of review and appeal conferred by this Act.
(2) Section 29(5)—delete subsection (5) and substitute:
(5) An agency that fails to determine an application made under this
section within 14 days after it is received by the agency—
(a) must refund any fee paid by the applicant in relation to that
application; and
(b) is, for the purposes of this Act, to be taken to have confirmed the
determination in respect of which a review is sought.
13—Amendment
of section 39—External review
Section 39(11)—delete subsection (11) and substitute:
(11) On an application under this section, the relevant review authority
may (based on the circumstances existing at the time of the
review)—
(a) confirm, vary or reverse the determination the subject of the review;
or
(b) remit the determination the subject of the review to the agency for
further consideration.
After section 49 insert:
49A—Improper direction or
influence
A person must not—
(a) direct an accredited FOI officer to make a decision or determination
for the purposes of this Act that the person knows, or ought reasonably to know,
is not a decision or determination that the officer should, in the
circumstances, make; or
(b) improperly influence (whether directly or indirectly) the making of a
decision or determination for the purposes of this Act by an accredited FOI
officer.
Maximum penalty: $5 000.