Premier & Cabinet

Type:
Premier's Memorandum
Identifier:
M2004-06
Status:
Archived

M2004-06 Freedom of Information (FOI) and Counter Terrorism

Description

superseded by M2007-11

Detailed Outline

As you will be aware, the Freedom of Information Amendment (Terrorism and Criminal Intelligence) Act 2004 (the Act) was recently passed by Parliament. It came into effect on 28 May 2004.

The purpose of the Act is to better protect the public by improving the security of counter terrorism and other sensitive law enforcement information.

The Act amends the Freedom of Information Act 1989 to create a simple and comprehensive counter terrorism exemption. The new counter terrorism exemption will prevent the release under FOI of documents that could reasonably be expected to facilitate the commission of a terrorist act, or to prejudice terrorism prevention, preparedness, response or recovery.

Ministers and agencies should carefully examine FOI requests in light of the new counter terrorism exemption. The types of documents that may be covered by the exemption include:

  • agencies' security and risk management plans, including plans for private and public critical infrastructure;
  • information about the location and number of police officers, emergency services' equipment and personnel, and medical supplies in the event of a terrorist attack;
  • agencies' plans for terrorism prevention, preparedness, response or recovery; and
  • other documents, where their release may facilitate terrorism.

When applying this exemption, Ministers and agencies will need to consider whether the release of the documents could reasonably be expected to facilitate the commission of a terrorist act, or to prejudice terrorism prevention, preparedness, response or recovery. If so, access to the documents may be refused under the Freedom of Information Act. There is no requirement to apply a 'public interest' test.

In considering whether documents are covered by this exemption, Ministers and agencies will also need to keep in mind that information released under the Freedom of Information Act is free to be disseminated to the public at large. Release of information under FOI cannot be restricted to the particular applicant.

The Ombudsman and/or the Administrative Decisions Tribunal will be able to review decisions made on the basis of the counter terrorism exemption. The Act does not, of course, prevent the release of counter terrorism material on a voluntary basis.

Agencies are reminded that section 15 of the Freedom of Information Act permits agencies to delete exempt material from copies of policy documents that are required to be made available to the public (unless the material is merely exempt on the basis of the 'internal working documents' or 'legal professional privilege' exemptions). Agencies should review their policy documents in light of the new provisions to ensure that counter terrorism and other sensitive law enforcement information is properly protected.

It would be appreciated if you would inform all agencies within your administration of the passage of this legislation and its implications for their responsibilities under the Freedom of Information Act.


Bob Carr MP
Premier

____________________________________

superseded by M2007-11

Overview

Compliance

Not Mandatory

AR Details

Date Issued
Jun 1, 2004
Review Date
Jul 5, 2016
Replaces
Replaced By

Contacts

Contact
Contact us
Phone
02 9228 5555
Publishing Entity
Department of Premier and Cabinet
Issuing Entity
Department of Premier and Cabinet