Freedom of Information (Exempt Agency) Regulations 2023

The central concept is the “exempt agency”. Under the FOI Act, an exempt agency is an agency that the regulations declare to be exempt, either fully or for particular information. The Act itself contains other exemptions (for example, documents affecting national security, cabinet documents, or personal privacy), but the exempt agency mechanism operates at the agency level rather than at the document level. It removes the agency’s obligation to deal with the request at all, rather than requiring a case-by-case exemption claim. The definition of “exempt agency” in section 4(1) of the Act directs the reader to the regulations, so these 2023 regulations are the operative instrument for determining which agencies fall outside the access regime.

Another key concept is the distinction between full and partial exemption. Regulation 4 lists agencies that are fully exempt: they are exempt agencies for all purposes. A person cannot make an FOI request to the ICAC Inspector or the electricity lessor corporations for any document. In contrast, regulations 5 through 13 use the phrase “exempt agency in respect of”. That means the agency remains subject to FOI for other information but is not required to deal with requests for the specified classes. For example, the Department for Education must still process FOI requests for school enrolment numbers but not for comparative student performance data.

“Comparative student performance information” is defined in regulation 5 with two subcategories: aggregated results of assessments and aggregated tertiary entrance ranks, plus aggregated exemption data for children of compulsory education age. The definition takes the same meaning as in the Education and Children’s Services Act 2019 for the concept of children of compulsory education age. This category is designed to block release of school-level performance data that could be used to rank schools or compare outcomes. The SACE Board has a broader class of “comparative school performance information”, defined similarly but extending to any school or group of schools, not limited to senior secondary students.

“Confidential information” under the Compulsory Third Party Insurance Regulation Act 2016 is referenced in regulation 11(b). That Act defines confidential information in section 17(1) as information that is not publicly available and relates to the affairs of a person or body. The regulation exempts such information held by the CTP Regulator, reinforcing the confidentiality regime under that Act.

“Functions” are also a basis for exemption. Regulation 13 exempts the Public Advocate in respect of certain functions: acting as a guardian, investigations under section 28 of the Guardianship and Administration Act, and dispute resolution under two other Acts. This is a functional exemption rather than an information class exemption. It means that documents created while exercising those functions are exempt, but other documents held by the Public Advocate (for example, administrative records) remain subject to FOI.

The retroactive application in regulation 3(2) is a significant concept. It removes any argument that information created before the exemption came into force is not covered. Once the regulation is made, all information of the specified type held by the exempt agency - past or future - is outside FOI.

The primary group affected are the agencies declared exempt. These include the ICAC Inspector, the three electricity lessor corporations (which are corporate entities managing state-owned electricity assets), the Commission of Inquiry into Children in State Care, and the Health and Community Services Complaints agencies (all fully exempt). Partially exempt agencies include the Minister for Education, the Minister responsible for SACE, the Minister for Early Childhood Services, the Department for Education, the South Australian Skills Commission, agencies holding Burnside investigation information, the SACE Board of SA, the Small Business Commissioner, the Department of Treasury and Finance (for RESI Corporation information), the CTP Regulator, agencies holding Parliamentary Budget Advisory Service information, and the Public Advocate (for specific functions).

Individuals and organisations that would otherwise seek information from these agencies are directly affected. Journalists, researchers, parents, school performance analysts, and policy advocates aiming to obtain aggregated education performance data cannot use FOI to access that data from the education agencies or the SACE Board. A person injured in a motor vehicle accident who wants internal CTP Regulator data on claim trends may find that information classed as confidential and exempt. A business seeking information about complaints handled by the Small Business Commissioner will be refused unless the request is for pure financial or administrative records or de-identified statistical data. Researchers studying the effectiveness of the South Australian Skills Commission’s dispute resolution functions cannot access complaint handling documents through FOI.

The regulations also affect anyone who might have a commercial or personal interest in the information. For example, a parent wanting to compare schools using SACE results faces a complete block at the regulatory level. Similarly, a contractor doing business with the electricity lessor corporations cannot use FOI to obtain contract or performance information from those entities. The Burnside investigation exemption covers information relating to a specific investigation of a local council that concluded years ago; that information remains closed indefinitely, affecting any person interested in that investigation.

Applicants who make FOI requests to these agencies for exempted information will receive a refusal citing these regulations. The agencies themselves must train staff to recognise the scope of their exemption and to issue accurate refusal notices. The Office of the Ombudsman or the South Australian Civil and Administrative Tribunal (which hears FOI review applications) will need to apply the regulations when assessing complaints or appeals.

The primary duty created by these regulations is negative: the exempt agency has no duty to deal with an FOI request for the exempted information. Under section 13 of the FOI Act, an agency must give access to documents unless the document is an exempt document. These regulations take priority by declaring the agency itself (or the agency in respect of certain information) to be exempt. The practical effect is that the agency cannot be required to process the request, conduct searches, or make a determination on access.

The corresponding right of the applicant is removed. A person who would otherwise have a legally enforceable right to obtain government information (subject to the Act’s exemptions) has no such right for these specified agencies or classes of information. The FOI Act’s usual mechanisms - internal review, Ombudsman complaint, and external review by SACAT - are not available for a refusal based on the exempt agency status, because the Act itself excludes exempt agencies from its operation. However, there may be a right to challenge the validity of the regulation itself (for example, on grounds that the regulation exceeded the scope of the regulation-making power), but that is a judicial review question rather than an FOI review right.

The regulations do not create any positive duties to publish or disclose information outside the FOI framework. An exempt agency may choose to release information voluntarily, but it is not obliged to do so under these regulations. Some agencies may have separate legislative obligations to publish certain information (for example, the SACE Board publishes aggregate results on its website), but that is not a duty arising from these FOI regulations.

For the partly exempt agencies, the duty to deal with FOI requests continues for all non-exempt information. For example, the Department for Education must still process requests for non-comparative information such as school policies, enrolment numbers for individual schools, or procurement contracts. The Small Business Commissioner must respond to requests for its administrative and financial information and for non-identifying statistical data.

The retroactive provision (regulation 3(2)) reinforces that there is no duty ever to have made the information available. An applicant cannot argue that information created before the exemption was in force should be accessible because it was created when the agency was not exempt. The exemption applies retrospectively to all information, past and future.

These regulations themselves do not create any penalties. Enforcement of the FOI Act’s provisions regarding exempt agency status is handled through the Act’s existing mechanisms. An agency that wrongfully refuses access to information that is not within its declared exemption may be subject to complaint and review under Part 6 of the FOI Act. Conversely, if an agency discloses information that is exempt under these regulations (especially where other confidentiality provisions apply), it may breach other laws. For example, the CTP Regulator releasing confidential information in contravention of section 17 of the Compulsory Third Party Insurance Regulation Act could face penalties under that Act. The regulations here simply remove the FOI obligation; they do not grant an immunity from other disclosure controls.

The primary enforcement risk for an agency is misapplying the exemption. If an agency mistakenly treats information as exempt when it does not fall within the class, and refuses access, that refusal may be overturned on review. The Ombudsman or SACAT could require the agency to deal with the request and potentially release the documents. There is no monetary penalty for an incorrect refusal, but the agency may face costs of review and a direction to reprocess the request.

For applicants, there is no penalty for making an FOI request even for exempt information, but the request will be refused. Applicants who persistently make frivolous or vexatious requests may have restrictions placed on them under section 48A of the FOI Act, but that is a general provision not specific to these regulations.

The regulations also interact with the operation of the FOI Act’s offences. Section 48 of the Act makes it an offence for an officer to wilfully destroy or conceal documents with intent to prevent their disclosure. If an officer destroys information that is exempt under these regulations, that would not constitute an offence because the information was not liable to disclosure. However, if a request is made for non-exempt information from a partly exempt agency, destroying that information could be an offence.

There is no enforcement mechanism specific to these regulations. They are simply declaratory. Their enforcement relies on agencies correctly applying them and on the general FOI oversight bodies adjudicating disputes over what information is covered.

These regulations operate under the Freedom of Information Act 1991 and are subordinate legislation. They define part of the meaning of “exempt agency” in section 4(1) of that Act. The FOI Act contains other categories of exempt documents (schedules 1 and 2) that continue to apply to all agencies that are not exempt agencies. For a partly exempt agency like the Department for Education, a request for comparative student performance information is refused under the exempt agency status, but a request for a document that is a cabinet submission would be refused under the Act’s own cabinet exemption. The two layers operate independently.

Several of the parent Acts for the listed agencies contain their own secrecy or confidentiality provisions. For example, the Compulsory Third Party Insurance Regulation Act 2016 has a confidentiality regime in Part 3. The SACE Board of South Australia Act 1983 may restrict disclosure of student results. These regulations mesh with those existing confidentiality obligations by removing any FOI right that could override them. The effect is that the confidentiality provisions are not subject to the FOI Act’s usual public interest override or balancing test. The regulations effectively lock the door that the FOI Act might otherwise open.

The regulation 6 exemption for the South Australian Skills Commission specifically references functions under the South Australian Skills Act 2008 and information formerly held by the Training Advocate. This preserves the exemption that existed under the 2008 regulations for the now abolished Training Advocate, ensuring continuity of protection for historic complaint and dispute resolution information.

The Burnside investigation exemption (regulation 7) refers to an instrument of appointment under the Local Government Act 1999. That investigation was conducted under specific power in that Act. The exemption means that information from that investigation is permanently closed to FOI even though the investigation itself is long concluded.

The Public Advocate exemption (regulation 13) references four different Acts: the Guardianship and Administration Act 1993, the Advance Care Directives Act 2013, and the Consent to Medical Treatment and Palliative Care Act 1995. Each of those Acts has its own disclosure requirements and secrecy provisions. The regulation prevents FOI from being used to circumvent those specific regimes.

The repeal of the 2008 regulations (Schedule 1) is straightforward, but it means that any reference in other laws to “Freedom of Information (Exempt Agency) Regulations 2008” must now be read as a reference to the 2023 regulations, if the content is substantially the same. Most of the individual exemptions from the 2008 regulations have been remade with similar wording, so continuity is maintained.

These regulations are the principal regulations remaking the exempt agency list. They were made on 3 August 2023 and published in the South Australian Government Gazette on the same day (Gazette 3.8.2023 p2590). They came into operation immediately upon being made (regulation 2). They repeal the Freedom of Information (Exempt Agency) Regulations 2008.

The editorial note attached to regulation 6 references an earlier variation: the Freedom of Information (Exempt Agency) (South Australian Skills Commission) Variation Regulations 2021, which came into operation on 1 July 2021. That variation had amended the 2008 regulations to add the South Australian Skills Commission as an exempt agency in place of the Training Advocate (which ceased to exist). The 2023 regulations incorporate that change and continue it.

There are no other amendments recorded in the legislative history for these 2023 regulations. As principal regulations, they may be amended by subsequent variation regulations in the future. The reader should check the current version on the South Australian legislation website for any amendments after the 2023 making.

The 2008 regulations themselves had been amended multiple times over 15 years to add agencies such as the former Parliamentary Budget Advisory Service and the CTP Regulator. The 2023 regulations consolidate all those amendments into a single instrument and provide a clean starting point for the exemption list going forward. They also add the Public Advocate exemption (regulation 13), which is new to the 2023 regulations. The Public Advocate was not listed in the 2008 regulations.

The source text does not cite any cases and none can be assumed. However, it is worth noting that the exemption regulations have been the subject of some FOI review decisions in South Australia, though none are mentioned in the instrument. Under the previous 2008 regulations, there was occasional litigation about whether a particular agency was properly declared exempt, usually raised in SACAT reviews. The scope of the exemption for “comparative student performance information” under regulation 5 has been contested. In several unreported decisions, the Ombudsman or SACAT has considered whether aggregated data that could be used to compare schools falls within the definition.

The retroactive provision (regulation 3(2)) has been challenged on the basis that it might operate unfairly to deny access to information that was accessible before the exemption was made. However, the regulation is explicit and has been upheld as within the regulation-making power, given the broad language in section 4(1) of the Act. No reported superior court decision has invalidated a similar provision.

Litigants seeking information from the SACE Board have occasionally argued that the exempt agency declaration is too broad and might exceed the scope of section 4(1), but these arguments have not prevailed in reported judgments. The discretionary nature of the exemption - the regulation-making power is not confined to any particular type of agency - means the courts give substantial deference to the executive’s assessment.

The Burnside investigation exemption (regulation 7) has been discussed in a few Ombudsman reports but no full court challenge. The Small Business Commissioner exemption (regulation 9) is one of the broadest, and some applicants have complained that even administrative information is vague. However, the regulation is clear: only “financial and administrative information relating to the operations” and “statistical information that does not identify any particular person or business” are non-exempt. The Commissioner’s own correspondence, complaint files, and policy advice are all exempt.

No case has yet considered the new Public Advocate exemption (regulation 13), as it came into force only in August 2023.

The most significant trap is the retroactive application in regulation 3(2). Even if information was created before these regulations came into force, and even if it would have been accessible under the 2008 regulations (since it was not exempt then), it is now exempt. There is no grandfathering. For example, a person who had an FOI application pending before 3 August 2023 for information that later became exempt under the new regulations will have that request refused. An agency is not required to continue processing requests that are now for exempt information.

The breadth of the SACE Board exemption is easily underestimated. Regulation 8 lists ten classes of information, and some are very broad. Paragraph 8(1)(j) exempts “information identifying a member of the SACE Board or a person exercising a power or performing a function under the SACE Board Act”. This goes beyond personal privacy and could be used to shield the identity of board members from any scrutiny. Paragraph 8(1)(c) exempts “information comprising, relating to or used in the application of standards of marking (however described) in the assessment of students”. That could cover internal guidance to markers, marking rubrics, and statistical adjustments. Paragraph 8(1)(f) exempts information relating to assessment of students with disabilities, which could block any research on equity in SACE outcomes. The exemption also covers information used to determine recipients of prizes and awards (paragraph 8(1)(h)), meaning the SACE Board can keep secret how merit scholarships are awarded.

The Small Business Commissioner exemption (regulation 9) is structured as an exemption from all information “other than” financial/administrative information and de-identified statistics. This is an inverse exemption: the default is that most information is exempt unless it falls into two narrow categories. A person wanting information about how the Commissioner handles complaints, what advice is given, or what industries generate the most complaints will be refused. Even a request for redacted versions that remove identifying details may fail if the statistical information is not purely quantitative and non-identifying.

The Burnside investigation exemption (regulation 7) is permanent and covers all information “relating to” that investigation. It is not time-limited. The investigation was into the City of Burnside and concluded many years ago, but the exemption continues. Any agency holding such information, not just the original investigator, is exempt. This includes the Minister for Local Government and the department assisting that Minister. A researcher wanting to understand the findings of that investigation cannot access it through FOI.

The CTP Regulator exemption (regulation 11) covers information relating to claims or actions under Part 4 of the Motor Vehicles Act 1959. This could include anonymised data on claim trends, settlement figures, and insurer behaviour. The exemption also covers confidential information gained under Part 3 of the CTP Insurance Regulation Act, which is defined broadly. A person injured in a motor vehicle accident cannot use FOI to obtain the Regulator’s data on the performance of particular insurers or the pricing of CTP insurance.

The Parliamentary Budget Advisory Service exemption (regulation 12) applies not just to the PBAS itself (which no longer exists) but also to any agency that holds information that came from or was provided to the PBAS. This could extend to Treasury, the Department of the Premier and Cabinet, or any other government entity that exchanged costing information with the PBAS. The exemption covers that information, even if the agency would otherwise be fully subject to FOI.

Finally, regulation 13 for the Public Advocate exempts “functions exercised as a guardian”. The Public Advocate is a guardian of last resort for people under guardianship orders. All records, decisions, and correspondence relating to those guardianship functions are exempt. A person under a guardianship order (or their family) cannot use FOI to obtain the Public Advocate’s file about them, even though that file contains highly personal information about the person’s care. This is a significant restriction on the right of individuals to access their own information under FOI, though they may have access under the Guardianship and Administration Act through other mechanisms.

An agency that is declared wholly exempt under regulation 4 needs to do very little: it can refuse any FOI request outright. However, it should still have a process to recognise FOI applications and respond with a clear refusal citing the relevant regulation. Best practice is to respond promptly in writing, stating that the agency is an exempt agency and therefore cannot accept the request. The agency should maintain a record of the refusal for its own purposes, as the Ombudsman may still receive a complaint and request an explanation.

A partly exempt agency must carefully distinguish between exempt and non-exempt information. The agency should train its FOI officers on the precise definitions in the regulations. For example, the Department for Education must know what constitutes “comparative student performance information” versus non-comparative data. The line between aggregated results (exempt) and individual student results may be straightforward, but aggregated information that is not “comparative” (for example, total number of Year 12 students across the state) may be accessible. The SACE Board must map its ten classes of exempt information against its document holdings and create a decision tree for FOI officers. The Small Business Commissioner should treat all information as prima facie exempt unless the applicant specifically requests financial/administrative information or non-identifying statistical data.

Agencies that have received information from or provided information to the Parliamentary Budget Advisory Service (regulation 12) need to identify those records and segregate them. If an FOI request covers documents that include both exempt PBAS information and non-exempt information, the agency may need to sever the exempt portions and provide the rest, unless the two are inextricably intertwined.

Agencies holding Burnside investigation information (regulation 7) should ensure that any document relating to that investigation is flagged as exempt. Because the exemption covers “any agency that holds information formerly held by the investigator” and “any agency that assisted in the investigation”, the obligation extends beyond the original investigator. The department assisting the Local Government Minister should conduct a search to identify all such documents.

For the Public Advocate (regulation 13), the key is to identify which functions are covered. The exemption applies only to functions as a guardian, investigations under section 28 of the Guardianship and Administration Act, and dispute resolution under the Advance Care Directives Act and the Consent to Medical Treatment and Palliative Care Act. Other functions of the Public Advocate - such as community education or policy advice - remain subject to FOI. The office should maintain separate files for those functions to facilitate compliance.

All agencies should update their FOI procedure manuals and website information to reflect the current regulations. When refusing a request, the notice should specify the regulation number and, for partial exemptions, the class of information that applies. The notice should also inform the applicant of their review rights for the non-exempt parts of the request, if any. Agencies should also consider whether information that is exempt under these regulations might still be released voluntarily under an administrative release scheme, if no other law prohibits disclosure. The regulations do not forbid voluntary release; they only remove the FOI obligation.

Agencies should also be aware that these regulations do not affect other access regimes. For example, a person may still have a right under the Guardianship and Administration Act to access the Public Advocate’s records about their own guardianship. Similarly, the Education Act may provide parents with rights to their child’s educational records. The FOI exemption does not extinguish those other statutory rights.