Part 3Access to documents

Part 3—Access to documents 12—Right of access to agencies' documents A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. 13—Applications for access to agencies' documents An application for access to an agency's document— (b) must specify that it is made under this Act; and (c) must be accompanied by such application fee as may be prescribed; and (d) must contain such information as is reasonably necessary to enable the document to be identified; and (e) must specify an address in Australia to which notices under this Act should be sent; and (f) must be lodged at an office of the agency, and may request that access to the document be given in a particular way. 14—Applications to be dealt with by certain persons and within certain time (1) An application will be dealt with on behalf of an agency by an accredited FOI officer of the agency. (2) An application must be dealt with as soon as practicable (and, in any case, within 30 days) after it is received. 14A—Extension of time limit (1) The principal officer of an agency that is dealing with an application may extend the period within which the application would otherwise have to be dealt with under section 14 if satisfied that— (a) the application is for access to a large number of documents or necessitates a search through a large quantity of information and dealing with the application within that period would unreasonably divert the agency's resources from their use by the agency in the exercise of its functions; or (b) the application is for access to a document in relation to which consultation is required under Division 2 and it will not be reasonably practicable to comply with Division 2 within that period. (2) An extension under subsection (1) must be for a reasonable period of time having regard to the circumstances. (3) The extension must be effected by giving written notice of the extension to the applicant within 20 days after the application is received. (4) Such a notice must specify— (a) the period of the extension; and (b) the reasons for the extension; and (c) the rights of review conferred by this Act. (5) An extension under subsection (1) is a determination for the purposes of this Act. 15—Incomplete and wrongly directed applications An agency must not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information. 16—Transfer of applications (1) An agency to which an application has been made may transfer the application to another agency if the document to which it relates— (a) is not held by the agency but is, to the knowledge of the agency, held by the other agency; or (b) is held by the agency but is more closely related to the functions of the other agency. (2) An agency that transfers an application to another agency must, if it holds the document to which the application relates, forward a copy of the document to the other agency together with the application. (3) An agency that transfers an application to another agency must forthwith cause notice of that fact to be given to the applicant. (4) Such a notice must specify the day on which, and the agency to which, the application was transferred. (5) An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document. (6) An application that is transferred from one agency to another is to be taken to have been received by the other agency— (a) on the day on which it is transferred; or (b) 14 days after the day on which it was received by the agency to which it was originally made, whichever is the earlier. 17—Agencies may require advance deposits (1) If, in the opinion of an agency, the cost of dealing with an application is likely to exceed the application fee, the agency may request the applicant to pay to it such reasonable amount, by way of advance deposit, as the agency may determine. (2) If, in the opinion of an agency, the cost of dealing with an application is likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such reasonable amount, by way of further advance deposit, as the agency may determine. (3) The aggregate of the application fee and the advance deposit or deposits requested under this section may not exceed the agency's estimate of the cost of dealing with the application. (4) A request for an advance deposit must be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated. (5) The amount of an advance deposit requested by an agency in respect of an application must be paid to the agency within such period as the agency specifies in the request. (6) The period between the making of a request under this section and the payment of an advance deposit in accordance with the request is not to be taken into account in calculating the period within which the relevant application is to be dealt with. 18—Agencies may refuse to deal with certain applications (1) An agency may refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved in dealing with it within the period allowed under section 14 (or within any reasonable extension of that period under section 14A) would, if carried out, substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of its functions. (2) An agency must not refuse to deal with such an application without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of its functions. (2a) An agency may refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information. (3) An agency may refuse to continue dealing with an application if— (a) it has requested payment of an advance deposit in relation to the application; and (b) payment of the deposit has not been made within the period specified in the request. (4) If an agency refuses to continue dealing with an application under subsection (3)— (a) it must refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application; and (b) it may retain the remainder of those deposits. (5) An agency that refuses to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant. (6) Such a notice must specify— (a) the reasons for the refusal; and (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based. (7) An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document. (8) A refusal to deal with, or to continue to deal with, an application under this section is a determination for the purposes of this Act. 19—Determination of applications (1) After considering an application for access to a document, an agency must determine— (a) whether access to the document is to be given (either immediately or subject to deferral) or refused; and (b) if access to the document is to be given—any charge payable in respect of the giving of access; and (c) any charge payable for dealing with the application. (2) If— (a) — (i) the principal officer of an agency has, under section 14A, extended the period within which an application must be dealt with by the agency; and (ii) the agency fails to determine the application within the period as so extended; or (b) in any other case—an agency fails to determine an application within 30 days after receiving the application, the agency is to be taken to have determined the application by refusing access to the document to which it relates for the purposes of the provisions of Division 3 and Part 5. (2a) However, nothing prevents an agency from making a determination to give access to a document on an application after the period within which it was required to deal with the application (and any such determination is to be taken to have been made under this Act). (3) This section does not require an agency to determine an application if the agency has, in accordance with this Act, transferred the application to another agency or refused to deal with, or to continue to deal with, the application. 20—Refusal of access (1) An agency may refuse access to a document— (a) if it is an exempt document; or (b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge; or (c) if it is a document that is usually and currently available for purchase; or (d) if it is a document that— (i) was not created or collated by the agency itself; and (ii) genuinely forms part of library material held by the agency; or (e) if it is a document that came into existence before 1 January 1987. (2) Subsection (1)(e) does not permit an agency to refuse access to— (a) a document that contains information concerning the personal affairs of the applicant; or (b) a document that is reasonably necessary to enable some other document (being a document to which the agency has given access under this Act) to be understood; or (c) a document if 20 years have passed since the end of the calendar year in which the document came into existence. (4) If— (a) it is practicable to give access to a copy of a document from which the exempt matter has been deleted; and (b) it appears to the relevant agency (either from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy, the agency must not refuse to give access to the document to that limited extent. 21—Deferral of access (1) An agency may defer access to a document— (a) if it is a document that is required by law to be published but is yet to be published; or (b) if it is a document that has been prepared for presentation to Parliament but is yet to be presented; or (c) if it is a document that has been prepared for submission to a particular person or body but is yet to be submitted. (1a) A State Government agency may defer access to a document— (a) if it is a document that has been designated by the responsible Minister for the agency as appropriate for presentation to Parliament, but is yet to be presented; or (b) if it is a document that has been designated by the responsible Minister for the agency as appropriate for submission to a particular person or body, but is yet to be submitted. (2) Access to a document to which subsection (1)(a) applies may not be deferred beyond the time the document is required by law to be published. (3) Access to a document to which subsection (1)(b), (1)(c), (1a)(a) or (1a)(b) applies may not be deferred for more than a reasonable time after the date of its preparation. 22—Forms of access (1) Access to a document may be given to a person— (a) by giving the person a reasonable opportunity to inspect the document; or (b) by giving the person a copy of the document; or (c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device—by making arrangements for the person to hear or view those sounds or visual images; or (d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound—by giving the person a written transcript of the words recorded in the document; or (e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form—by giving the person a written transcript of the words contained in the document; or (f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document—by giving the person a written document so reproduced. (2) If an applicant has requested that access to a document be given in a particular way, access to the document must be given in that way unless giving access as requested— (a) would unreasonably divert the resources of the agency (or, if the document is in the custody of State Records, the resources of State Records) from their use for other official purposes; or (b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate; or (c) would involve an infringement of copyright in matter contained in the document, in which case access may be given in some other way. (2a) If a document is in the custody of State Records, the determination as to the way in which access is given to the document must be made by or jointly with the Manager of State Records. (3) If an applicant has requested that access to a document be given in a particular way and access is given in some other way, the applicant is not required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given as requested. (4) Subject to subsection (2a), this section does not prevent an agency from giving access to a document in any way agreed on between the agency and the person to whom access is to be given. (5) An agency may refuse to give access to a document if a charge payable in respect of the application, or giving access to the document, has not been paid. 23—Notices of determination (1) An agency must notify an applicant in writing— (a) of its determination of his or her application; or (b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document. (2) Such a notice must specify— (a) the day on which the determination was made; and (b) — (i) the name and designation of the officer by whom the determination was made; and (ii) the rights of review conferred by this Act; and (iii) the procedures to be followed for the purpose of exercising those rights; and (c) if the determination is to the effect that access to a document is to be given (either immediately or subject to deferral)—the amount of any charge payable in respect of the giving of access; and (d) if the determination is to the effect that the document is an exempt document and that access is to be given to a copy of the document from which exempt matter has been deleted—the fact that the document is such a copy and the provision of Schedule 1 by virtue of which the document is an exempt document; and (e) if the determination is to the effect that access to a document is to be given subject to deferral— (i) the reason for the deferral; and (ii) if applicable—the likely period of deferral; and (f) if the determination is to the effect that access to a document is refused— (i) the reasons for the refusal, including— (A) the grounds for the refusal under section 20(1); and (B) if a ground for the refusal is that the document is an exempt document—the particular provision of Schedule 1 by virtue of which the document is an exempt document and, if under the provision disclosure of the document must, on balance, be contrary to the public interest in order for the document to be exempt, the reasons why disclosure of the document would be contrary to the public interest; and (ii) the findings on any material questions of fact underlying the reasons for the refusal, together with a reference to the sources of information on which those findings are based; and (g) the amount of any charge for dealing with the application, together with— (i) a statement of any amount payable by the applicant; or (ii) a statement of any amount refundable to the applicant, in relation to the charge, having regard to the sum of any advance deposits paid in respect of the application. (3) Where an applicant applies for access to a document that is an exempt document for reasons related to criminal investigation or law enforcement, the notice may be given in a form that neither admits or denies the existence of the document and, if disclosure of the existence of the document could prejudice the safety of a person, the notice must be given in that form. (4) An agency is not required to include in a notice any matter if its inclusion in the notice would result in the notice being an exempt document. 24—Division to be read subject to Division 2 This Division has effect subject to the provisions of Division 2.