M2009-18 Agency Responsibility for FOI Determinations

This Memorandum only applies to freedom of information (“FOI”) applications made to agencies. It does not apply to FOI applications made to Ministers' offices.   A recent investigation by the Ombudsman suggests that it is timely to remind Ministers, Ministers' offices and agencies of their obligations in relation to FOI determinations.   Determinations under the Freedom of Information Act 1989 (“the FOI Act”) must be made in accordance with the FOI Act. FOI determinations must be made by agencies on their merits, based solely on the criteria set out in the FOI Act. Additional guidance for agencies is provided in the FOI Manual, available at www.dpc.nsw.gov.au.   Agencies are not subject to the direction or control of their Ministers in relation to the content of FOI determinations.   Ministers and Ministers' offices are not entitled to be provided with draft FOI determinations. Agencies must not provide their Minister or Minister's office with draft FOI determinations, or seek advice or comment from their Minister or Minister's office about FOI determinations that have not been finalised. Ministers or Ministers' offices might appropriately be involved in FOI matters in the following circumstances:

• where the Minister or Minister's office staff are consulted under the third-party consultation provisions in the FOI Act because the FOI application seeks or catches information concerning their personal affairs; or
• where the FOI application cannot be understood by the agency without clarification from the Minister or Minister's office (for example, because the FOI application seeks information about a comment made by the Minister and the agency needs to obtain details of the comment and the circumstances in which it was made in order to process the FOI application).

It is also appropriate for agencies to advise their Minister and Minister's office about FOI applications on hand, and to provide them with copies of FOI determinations once they have been made.

It is also appropriate for Ministers and Ministers' offices to request, and for agencies to provide, any additional briefing material in relation to FOI determinations. It is not acceptable, however, for agencies to delay making FOI determinations because they are preparing additional briefing material for their Minister or Minister's office.

Nathan Rees MP

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