The objects of the Freedom of Information Act 1991 (FOI Act) are to promote openness and accountability in government and to facilitate public participation in the making and administration of laws and policies (section 3). These objects encourage disclosure of information over non-disclosure.
However, access is subject to exemption provisions contained within the Act. These are critical to balancing government openness and accountability with the need protect business and personal affairs and the proper working of government.
There are two types of exemption provisions:
Absolute exemptions can be applied to the whole or a part of a document. An accredited FOI officer has no discretion to assess whether an exemption should be applied, nor can they apply a weighing test to see if disclosure would be against the public interest. This is because absolute exemptions protect third parties’ interests, not the agency.
For example, a minute from the Crown Solicitor would constitute legal professional privilege and be exempt under clause 10. The exemption protects the third party.
Discretionary exemptions have a test involved – referred to as the Public Interest Test. These exemptions should only be claimed where the disclosure of information would cause genuine harm. Access needs to be determined if it can be demonstrated that disclosure would be contrary to the public interest.
An example would be clause 9, internal working documents. After establishing a document fits the criteria of an internal working document, the public interest test would then need to be applied.
Public interest
The public interest is considered to be something that is of serious concern or benefit to the public. It is an interest that is common to the community as a whole (or a substantial part of it).
The term ‘public interest’ appears in several exemption clauses in the FOI Act. However, there is no statutory definition for ‘the public interest’ with a number of FOI reviews finding it is difficult to define due to the influence of varying external factors.
An accredited FOI officer must determine whether or not the benefit of disclosure to the public outweighs other public interest considerations of non-disclosure. This is commonly known as the ‘public interest test’.
The public interest test
The following information is provided to assist agencies determine why disclosure of a document may be in the public interest or not, however agencies must consider each document on a case-by-case basis.
This list of factors is a starting point only and should not limit the agency in considering other factors. You may also consider consulting the applicant to identify any additional factors that could be considered.
Public interest factors in favour of disclosure
The District Court in South Australia (SADC) held the objects of the FOI Act impose a bias in favour of providing access to documents. Therefore meeting the objects of the Act should be considered as a public interest factor to be weighed in favour of disclosure (Moore v Registrar Medical Board SA (2001) SADC 106).
Allowing access to information about issues currently being considered by government is vital for public participation and informed debate.
It is important the operations of government and the thinking processes behind government decision-making are open to scrutiny so the government can be held accountable for its decision-making.
Disclosure of information about issues of general concern to the community can assist individuals make decisions about their own activities.
Providing information about government spending, public health and safety, education or infrastructure initiatives, protection of the environment and the enforcement of the law, can be of significant value to the community.
Providing information about possible deficiencies in government can help bring about valuable improvement and necessary change.
Providing individuals with the information government holds about them and allowing them to seek amendment if they consider the information is incomplete, incorrect, out-of-date or misleading is an essential right of all members of the public.
There may be a public interest in allowing individuals with a special interest in a particular matter to obtain information of relevance to them. For example, there may be a public interest in a complainant accessing information about how their complaint was handled.
Providing access to research information will often allow reuse of the information that could provide opportunities for economic, science or social development or medical research
Public interest factors that may favour non-disclosure
Satisfying the elements of one or more exemption clauses that contain a public interest test may be an indication that disclosure would not be in the public interest, especially where the elements are easily satisfied.
However, satisfying the elements of an exemption clause is not enough on its own to argue that releasing the document would be contrary to the public interest.
It may not be in the public interest to disclose information that would adversely affect the efficient and effective conduct of government functions. For example, documents in draft form, which could impair the integrity and/or viability of the agency’s decision-making process if released.
It should be noted once a decision has been made within such documents, the argument not to provide access is weakened and public interest may now be in favour of disclosure to show how the decision was developed (see Ipex Info Tech v Dept of Info Tech Services (1997) SADC 3618 (16 June 1997) Lunn J).
The privacy of an individual’s personal information (other than the applicant) may outweigh the public interest in the applicant having access to the information they seek (Barbaro v Liquor Licensing Commissioner (1995) SADC D3240 (6 April 1995) Noblet J).
The confidentiality of information of a commercial nature held by government may need to be maintained.
It is important to ensure disclosure of information does not interfere with or threaten the way law enforcement or other regulatory authorities perform their functions.
This factor has been given little judicial weight in South Australia. However, while the FOI Act provides a legally enforceable right to access information held by government it also balances this with the adverse impact release of some documents could have on the conduct of public affairs. That is, it recognises that access to documents may need to be refused where it can be demonstrated that ‘free and frank expression of opinions’ will be restricted, particularly by those who provide advice to government. This advice can originate from within and external to government.
Consideration of this factor would usually relate to decision making and policy development at highest levels of government where candour and freedom to explore options are paramount to the proper workings of government. Release of information should not discourage public servants from providing unfettered advice to Ministers.
Claiming disclosure of certain information would not be in the public interest because it would prevent free and frank advice to government must be considered on a case-by-case basis and supported by factual evidence of the harm and damage it could cause to government.
Weighing the Public Interest
Where an agency is considering use of an exemption that has a public interest test, it cannot provide or refuse access without first assessing the relevant factors for and against disclosure. The public interest must be assessed each time an exemption with a public interest test may apply. This may mean testing on numerous occasions within the one document.
Where applicable, the FOI Act requires the test to assess if “disclosure would, on balance, be contrary to the public interest”.
The reference to ‘on balance’ indicates the need to weigh up competing public interest factors before making a decision. When ‘weighing up’ it is critical to:
- assess factors both for and against disclosure
- include an explanation of the specific harm that may occur as a result of disclosure when assessing factors against disclosure
- remember that factors may be weighted differently in different circumstances.
Some of the factors in favour of disclosure may appear to contradict the factors favouring non-disclosure. Such contradictions are unavoidable given the interests of individuals and communities often differ. This is why applying the public interest test can be difficult, complex and requires case-by-case consideration.
An example of weighing and considering public interest factors is where an applicant (a small private business) seeks access to all submissions to a tender they were unsuccessful in winning concerning the provision of services to agencies.
The following factors must be considered for each submission:
Factors in favour of disclosure | » Meeting the objects of the FOI Act as the Act favours disclosure. » Promoting public participation in government by providing information about how government funds are spent to ensure the government remains accountable for its expenditure and decision-making processes. » Providing information about possible deficiencies in the way the Department handled the tender process may help bring about valuable improvement in the process » The applicant has a ‘special interest’ in knowing why they were not successful. |
Factors favouring non-disclosure | » Some of the information requested satisfies the first two criteria of the exemption clause 7(1)(c) (Business affairs). » Protecting the sensitive commercial information of the other businesses to ensure businesses will continue to provide services to the government in the future, particularly where releasing such information could have a detrimental impact on their market position or future profitability. » Disclosing the way tenders are evaluated and assessed may interfere with the effective conduct of government functions and may provide unfair advantages to some businesses in the future regarding the tender process. |
In this example the promoting public participation in government contradicts ensuring the efficient and effective conduct of government functions.
You need to make an assessment based on the facts in question and the context of the matter to determine which factor carried more weight. Additionally, just because there are four factors in favour of disclosure and three for non-disclosure does not mean disclosure should occur. The severity of each factor may also differ and should be considered accordingly.
Finally, a high-level summary of this public interest assessment needs to be included in the Notice of Determination provided to the applicant.