Right to Information Act 2009Training Presentation

Prepared by: Department of JusticeMarch 2010 Version 1.3

This presentation has been prepared for registered attendees at RTI Implementation sessions only  Although all due care has been taken in the preparation of the presentation, it is only to be used as a guide and attendees are advised to carefully read the Right to Information Act 2009 and to seek their own specific advice as required.

The Crown in right of the State of Tasmania, its officers, employees and agents do not accept liability however arising, including liability for negligence, for any loss resulting from the use of or reliance upon any representation, statement, opinion or advice contained within this presentation.

Disclaimer

……everyone’s right to know

The Right to Information Act 2009

An outcome of the review of the Freedom of Information Act 1991

Your chance to understand the Right to Information Act 2009

Presented by:Dale Webster

Please feel free to make notes and

please ask questions

Module 1

Right to Information Overview

Introduction

In this module (the first of four) we will explore together the underlying conceptsin the Right to Information Act 2009 including:

• the fundamental principles.• the key terms used.

• the types of disclosures defined and proactive disclosure.• what happens when information is not available proactively.

•Relationship to other legislation. (Current FOI, PIP Act and Archives Act)

Future modules go into the decision making processes related to assessed disclosureand look at the Archives Office in some detail.

Section 3

The underlying aim of the Act - to improve the operation of democracy in the State by increasing the accountability of Government to the people, and by increasing the ability of the people to participate in government decision-making.

The underlying principle is that the information held by Tasmanian public authorities of all kinds belongs to the people of the State, and has been collected for them and on their behalf.

Everything in the Act should be read with this aim and principle in mind.

Defining the RTI Direction – the Objects

Fundamental considerations

It is central to understanding the RTI Act that you keep in mind 4 key considerations:

1. Section 7 is central to the operation of the Act.

2. The Right is a right to information, not documents (S.5).

3. The Right does not extend to exempt information.

4. Assessed disclosure (similar to old style FOI requests) follows all other types of disclosure.

Information is defined in Section 5

- it refers to every means by which we record words, figures, letters or symbols and any means by which we lodge information so we can reproduce it.

But it is then limited by defining “information in the possession of…”(see section 5 also) which excludes :•Information that does not relate to official business;•Information only possessed for forwarding or collating to a body which is not a public authority.

What is information

All “public authorities” are included.

• The definition of "public authority“, is defined in Section 5 and is wider than that of the expression "prescribed authority" in the FOI Act.

• Inclusion of State-owned and council-owned companies.

Who’s in

.

Who’s out

Section 6 allows for exclusion of certain public bodies and public authorities.

But Section 6 does not apply to the “administration” of the relevant public authority.

For Example: a court is excluded if a request relates to a judge’s

notes on a case, but not in respect of information about a request regarding the cost of fixing the roof of the building.

Section 7 creates a general right to information which is then explained in the sections which follow:

• (s8) Information provided by “outsourcing providers” is included.• (s9) Information that can be viewed in accordance with another Act or which can be purchased is excluded. •(s10) Access to information held electronically is limited in some circumstances (see also Schedule 3).

* Routine searching of back up systems or for information disposed of under Archives Act is not required.•(s11) How access is gained to information of a Public Authority which is in the Archives Office is outlined.

Right to information – explanatory sections

A purpose of RTI is to avoid the formal, time consuming and expensive process of making and responding to applications.

Section 12 creates the legislative requirement for principal officers to design mechanisms to disclose information without the need for these formal applications. A proactive approach to the disclosure of information by Government is sometimes referred to as a "push model".

The other side of this is that if the information is otherwise available then a formal application can be refused without further processing.

Proactive disclosure

.

Required disclosure

Is disclosure which is required by law, including under an enforceable agreement?

An example is the requirement to publish an annual report or to publish a decision made under an enactment.

Routine disclosure

Is the disclosure of information which a public authority decides may be of interest to the public?

Examples of this might be submissions in relation to a proposal for statutory reform or publishing performance data such as the DHHS Progress Chart or the Schools Improvement Report.

Active disclosure

Is the disclosure of information in response to a request made other than by way of an application for assessed disclosure?

An example is the provision of information to someone in response to a letter or phone call.

An application for assessed disclosure is:

a formal application for information in the possession of a Minister for release of information which is not otherwise available (s 13)

which leads to a formal decision (s 22) as to whether the application should be granted.

Such a decision is open to review under Part 4 of the Act.

assessed disclosure should only occur as a last resort - public authorities and Ministers are expected to put processes in place to make information freely available to the public : s 12(3).

Assessed disclosure

The application:• Must be in writing;• Must contain a minimum level of information*;• Does not have to be exact;• Must be accompanied by a fee or request for waiver

(s16).Public Authorities must:• Assist the person to make a complying application;• Let potential applicants know about the processes in the

agency for dealing with assessed disclosure*; and• Give a general outline of information held by the PA to

assist the person making the application in defining their application.

*Regulations will be promulgated prior to commencement of the Act.

Making an application (s13)

The application process in Section 13 is designed to assist public authorities to understand what is being asked for by the applicant by giving the applicant the best chance to define what they are asking for…

It also recognises that sometimes this will not happen and therefore allows for the public officer to have a dialogue with the applicant and to negotiate an understanding of what information the applicant would like to have disclosed.

Negotiation

Passing on the application

The applicant will make their application to the Minister or Public Authority that they believe holds the information they would like disclosed.

Section 14 allows for the application to be transferred to a Minister or Public Authority if the subject of the application is more closely related to them than the Minister or Public Authority which received the application.

All or part of the application can be transferred and the originator of the transfer can also make information they have available as part of the transfer.

Time limits

Application Accepted

Notify Applicant of decision

Once fee paid or decision to waive fee and after negotiation period to a maximum of 10 days (if required).

As soon as practicable, but not later than 20 days after application accepted unless: Applicant agrees to extend; or Time extended on application to Ombudsman (S15(4)(b)); orTime extended to 40 days by need to consult third party; orTime further extended by third party exercising right to review.

You can defer disclosure of information beyond the time limits if:

The information will become available within a maximum of 12 months from the date of an application as a required disclosure or a routine disclosure; orIf the information is to be presented to Parliament within 15 sitting days of the application of it being presented to the Minister.

Section 17

Deferment

Refusal

An application for assessed disclosure can be refused:

S12 – the information is otherwise available or will become available as a required or routine disclosure within a specified period not exceeding 12 months.

S19 – processing of the application will unreasonably divert resources. - Schedule 3 also relevant to this.

S20 – the application is a repeat application or vexatious or remains lacking in definition.

Disclosing the information

Section 18 sets up the rules for providing information to an applicant:

(1)Inspection, transcript, copy, hear or view.(2)If exempt information deleted then a note to be

included that copy is not complete.(3)If information relevant to application is embedded

in other information then information to be extracted.

(4)If information requested in a form which is a form which is available then make it available that way.

(5)Some information may be provided via a “registered medical practitioner” (see ss(6)).

Role of the Principal Officer (s23 and S24)

• Develop policies and procedures for their Public Authority about RTI.

• Publish policy and procedures and details of how a person exercises the right to information in respect of their Public Authority.

• Publish annual list of information available as required or routine disclosures.

• Publish annual details about assessed disclosures.• May be assisted in above -

Make decisions on assessed disclosures and internal reviews (also role of Minister)

May delegate decision making powers to any person who is trained for up to 3 years (also role of

Minister)

Exemptions - Overview

The right provided by s 7 does not extend to "exempt information".

This expression is defined by s 5, as meaning "information which is exempt information by virtue of a provision of Part 3".

Part 3 contains two Divisions, which deal separately with two different types of exempt information:

1. Those exempt by the nature of the information.

2. Those that are exempt if it can be shown that it is contrary to the public interest.

Exemptions

Processing an assessed disclosure requires an assessment of the information relevant to the application against the legislation to see if the information contains exempt information.

The exemptions are broadly the same as the FOI Act with some language clarified and the Public Interest Test standardised and detailed (S33 and Schedules 1 and 2).

Exemptions

Major Differences to FOI:

• Deliberative Information of an Agency now split into two categories: Internal Briefing Information (S27)

Internal Deliberative Information (S 35)

• Closed Meetings of Council moved into legislation.(s32)

Decisions - Overview

The decision must be made by an authorised person: - the relevant Minister;- the relevant principal officer; or - a delegated officer.

The Decision maker is to act impartially.Section 21

To deliberately obstruct or unduly influence the decision maker is an offence.

To deliberately fail to disclose information which is not exempt information is an offence.

Section 50

Decisions – Reasons

Written notice of decision is required if there is a decision that• some or all of the information is exempt information;• if application is deferred;• or if application is refused.

Written notice must state reasons, say who made decision and outline review rights.

If relevant to the decision making then the reasons must also state public interest factors relied on in decision making.

Not required to release exempt information, or confirm or deny its existence via the reasons.

Section 22

Decisions - Review

Internal Review is similar to FOI Act, that is to the Principal Officer or Minister if the decision was made by a delegated officer - 15 working days to make decision

Section 43

On external review the powers of the Ombudsman are now more directive and determinative.

Section 44

PIP Act has been amended.

Requires Personal Information Custodian to make information available to the person who the information is about.

If the PIC refuses to release the information the person can then make an application for assessed disclosure of the information under the RTI.

Processing of the application is then under RTI Act with all review rights.

Intersection with the Personal Information Protection Act 2004

A request for information lodged prior to the commencement of the RTI Act (1 July 2010) will continue to be processed as though the Freedom of Information Act 1991 is still in operation.

This includes right to internal and external review and the applicable timelines under that Act.

Transition from FOI to RTI

•It is essential RTI processes that Public Authorities have adequate ability to maintain information and to search it.•Public Authorities also have an extraordinary amount of information in the Archives Office – a large proportion of which is already available publicly.•Disposal of records other than in accordance with the Archives Act is an offence. (There are Guidelines to assist in understanding “disposal”).•Some information is disposed of as it fits a general category defined by Archives, but most can only be disposed of in accordance with a defined “disposal schedule”.•Only information which is “disposed” of is outside of the RTI, that is if it should have been and hasn’t it is still may be subject of an assessed disclosure.

The Archives Act and Records Management

Information Security Frameworks

Some public authorities, including state service agencies, have adopted, or are about to adopt, classification systems where all information is given a classification based on the level of security which should be placed on its treatment and storage.

These systems are not related to exemptions, for instance personal information should be stored with a high security rating, but may be made available to the person it relates to without a need for assessed disclosure

Summary

RTI Act encourages release of information without the need for formal process – “push model”.

The RTI Act defines the types of disclosures which must be adopted by Public Authorities and requires them to develop procedures for ensuring greater disclosure of information without the need for applications from the public.

More Public Authorities are included in the scope of the RTI act, including all state and council owned companies.

There is still a mechanism for assessing information, but it should only be used in rare circumstances.

The RTI also allows for a negotiation to refine the application, clarifies the timeline for processing applications and allows for refusal of an application in some circumstances.

The RTI Act acknowledges that there is still a small amount of information which needs to be protected to ensure the proper functioning of Government – “exempt information”.

The public interest test applying to some exemptions is defined within the RTI Act.

Section 49: The Ombudsman will:

•Issue and maintain guidelines.•Issue and maintain a Manual.•Provide oral or written advice to Ministers or Public Authorities.

And may publish decisions and reasons for decisions.

The Ombudsman is also likely to provide training on a fee for service basis.

Advice and Training in the future

……everyone’s right to know

The Right to Information Act 2009

An outcome of the review of the Freedom of Information Act 1991

Your chance to understand the Right to Information Act 2009

Presented by:Dale Webster

Please feel free to make notes and

please ask questions

Module 2

Exploring the Exemptions

In this module (the second of four) we will explore together Part 3 of the Right to Information Act 2009 including:

•The broad types of exemptions

•How to apply the Public Interest Test

•The elements of each exemption•Case Studies – your experiences

Future modules go into the writing decisions related to assessed disclosure and look at the Archives Office in some detail.

Introduction

In addition there are two mostly discrete Divisions, which deal separately with two different types of exempt information.

Division 1

• Deals with information which is exempt by its nature. • Each section in it declares by its opening words that

the type of information with which it deals is exempt. • Exemption in each of these cases is not subject to any

public interest test.

• There are eight exemptions in this Division, one of which crosses over and has an element of “public interest” applied (see s30).

Construction of Part 3

Division 2

As s 33(1) of the Act explains, deals with information which is only exempt if the principal officer of the public authority or Minister considers, after taking into account all relevant matters, that it is contrary to the public interest to disclose the information.

There are 9 exemptions in this Division.

Construction of Part 3

The "public interest" here refers to the wider public good, not to what the public might find interesting.

S 33 explains how one determines whether it is contrary to the public interest to disclose the information in question. The decision-maker must -•consider all relevant matters : s 33(1)•consider all the matters in Schedule 1 : s 33(2)•disregard as irrelevant all the matters in Schedule 2 : s 33(3).

The approach taken to the public interest in RTI Act is a major point of difference between this Act and the Freedom of Information Act 1991.

The Public Interest Test

Aligning with the Object

Note

Section 33 is founded on the principle that the disclosure of the types of information covered by Division 2 of Part 3 must occur unless this would be contrary to the public interest.

This is in line with the objects of the Act expressed in s 3.

•Schedule 1 – the non exhaustive list of factors which must be considered – 25 factors are listed

• Schedule 2 – the list of factors that must not be considered – 4 factors are listed

The RTI Act refers to these schedules in two places:

The main reference is in Section 33 as explained earlier, but they are also to be used in respect of s30.

Public Interest Schedules

In considering the use of each exemption it is important to consider each as a series of criteria – the exemptions may fall into one of four types:

1. To satisfy an exemption you must only show that the information meets the description in the section. (for example - Section 26)

2. To satisfy an exemption you must show that the information meets both the description in the section; and Satisfy the “harm” factor in the section where there is an expectation of damage if the documents were to be disclosed. ( for example – Section 29)

3. To satisfy an exemption you must show the information meets the description; and be satisfied that disclosure would be contrary to the public interest. (for example - Section 35)

4. To satisfy an exemption you must show all three elements, that is description, harm factor and disclosure would be contrary to the public interest (for example - Section 37)

The exemption criteria

This is Type 1 – Description of information only.For a valid claim under Section 26 the information, usually a document in this case, must be a record that:

•Is one of these:• has been submitted to Cabinet for its consideration ( or a copy);

or • is proposed by a Minister to be so submitted (or a copy); or• A record of a deliberation or decision which has not been

officially published;

•And is brought into existence for the purpose of submission for consideration by Cabinet;•And is not purely factual in nature; •And if purely factual must not disclose a deliberation or decision of Cabinet•And is not more than 10 years since it was first considered by Cabinet.

Exemption criteria - Cabinet Information

Exemption Criteria – Affecting National Security et al

Type 2 – for example Section 29

Description = Any Information in the possession of a PA or Minister

Harm test = would or would likely to• Endanger Security of Commonwealth, State or Territory; or• Endanger Defence of Commonwealth; or• Adversely affect International relations of Commonwealth;

or• Divulge location of dangerous substances or dangerous

goods.

Exemption Criteria – Internal Deliberative Information

Type 3 – Section 35Description = Is one of:

• An opinion advice or recommendation prepared by an officer of PA; or• A record of consultation between officers; or• A record of consultation between officers and Ministers

Which is for the purpose of the deliberative processes related to the official business of a PA, Minister or the Government;

And Is not purely factual information;And is not a record of or a statement of reasons about a final

decision, ruling or order connected with an adjudicative function;And was not created more than ten years ago.AndPublic Interest = The Information then is in the category, but

whether it is exempt or not requires that you establish that the release of the documents is contrary to the public interest by including a balancing of all public interest factors, whether in favour of or against the disclosure.

Exemption Criteria – Business Affairs of a third party

Type 4. Section 37Description – information related to the business

affairs of a third party; AndHarm Test – likely to expose the third party to

competitive disadvantage;AndPublic Interest Test - requires that you establish that

the release of the documents is contrary to the public interest by including a balancing of all public interest factors, whether in favour of or against the disclosure.

Consultation

Section 36 and 37 mandate consultation with third parties and then give those third parties review rights. These are administrative actions we must follow before deciding the harm test in each of these cases.These processes extend timeline by 20 days. Also information cannot be released during review.

Section 36:• Decide if you could reasonably expect release to be of concern – if no, do not consult – if yes and if practicable then consult.• 15 working days to respond - if no response, proceed to decision, if response, consider and provide them with outcome.

Section 37:•Decide if you could reasonably expect release to be of concern – if no, do not consult – if yes then consult about “likely to expose third party to substantial harm to competitive position”.• 15 working days to respond - if no response, proceed to decision, if response, consider and provide them with outcome.

Executive Council – Section 25

Type One

• Is one of these:• Official record of decision or deliberation of Governor or

Executive Council (or Copy); or• A record prepared for the purpose of being submitted to

the Governor or Executive Council for consideration (or Copy); or

• A record of a deliberation or decision which has not been officially published

• And is brought into existence for the purpose of submission for consideration by the Executive Council or Governor;

• And is not purely factual in nature; • And if purely factual must not disclose a deliberation

or decision of Executive Council or Governor

Internal Briefing Information of a Minister – Section 27

Type 1 – Must meet the defined descriptionIs one of:

• An opinion advice or recommendation prepared by an officer of PA or a Minister; or

• A record of consultation between officers and Ministers

And which is created in the course of and for the purpose of the briefing the Minister about official business of PA, Minister or Government; or in connection with the Minsiter parliamentary duty

And was brought into existence for submission to Minister for a briefing

And Is not purely factual information;And if purely factual must not disclose content of

briefing;And was not created more than ten years ago.

Information related to law enforcement – Section 30(1)

Information related to law enforcement - Section 30(2)(3)and (4)

Information Related to closed meetings of council – Section 32

This is Type 1 – Description of information only.For a valid claim under Section 32 the information,

usually a document in this case, must be a record that:

• Is one of these:• the official record of a closed meeting of Council (CMOC)• has been submitted to CMOC for its consideration ( or a copy); or • is proposed by a Officer or Councillor to be so submitted (or a

copy); or• A record of a deliberation or decision which has not been officially

published; • And is brought into existence for the purpose of submission for

consideration by CMOC;• And is not purely factual in nature; • And if purely factual must not disclose a deliberation or decision

of CMOC;• And is not more than 10 years since it was first considered by

CMOC• CMOC defined in Local Govt Regs.

Section 28 and 31

Both Type One and straight forward:

S 28 – Information held by Minister not related to official business of Minister, eg minutes of local branch of party.

S 31 – Legal professional privilege, eg opinion from SG about how to handle a defamation case. For this one you should consult the lawyer who drew up the advice.

Information Communicated by other jurisdictions – Section 34

Personal information of person – Section 36

Information related to business affairs of a public authority – Section 38

Information obtained in confidence – Section 39

Type 4Description:Information divulged in confidence by a person or

government to a PA or Minister andNot described in subsection (2)AND“harm factor”Would be exempt if PA or Minister’s information or

likely to impair ability of PA ir Minister to obtain similar info in future.

AND“public interest test”

Information on procedures and criteria used in certain negotiations – Section 40

Information likely top affect State economy – Section 41

Type 4 – three elements in deciding if information is exempt. In the category, meets the harm test in Section and would be contrary to the public interest:

Information about proposed action or inaction in the course of or for the purpose of managing the State economy or part there of.

ANDLikely to give any person unfair advantage or expose

someone to unfair advantage and would reasonably be expected to effect the ability to manage the economy of the State or any part of it.

ANDDisclosure would be contrary to the public interest

Information likely to affect cultural, heritage and natural resources – Section 42

Type 4 – three elements in deciding if information is exempt. In the category, meets the harm test in Section and would be contrary to the public interest:

Any InformationAND

In one of 4 categories of harm (a) or (b) or (c) or (d) of section

ANDDisclosure would be contrary to the public interest

Case Studies

Exploration of your cases

Summary

The RTI Act allows for assessed disclosure to allow for assessment of the information against defined categories of exemption as a last resort.

Exempt information falls into information exempt by nature and information exempt only after an assessment results in a decision that to disclose the information would be contrary to the public interest.

To be exempt information the information must meet all tests/administrative actions which apply in the relevant section.

In applying the tests to decide if the information is exempt information the decision maker must take into account the object of the RTI Act.

……everyone’s right to know

The Right to Information Act 2009

An outcome of the review of the Freedom of Information Act 1991

Your chance to understand the Right to Information Act 2009

Presented by:Dale WebsterNicola Norton

Please feel free to make notes and

please ask questions

Module 3

Writing Reasons

In this module (the third of four) we will explore together Section 22 and Parts 4 and 5 of the Right to Information Act 2009 including:

•The reasoning process•Putting reasons into writing

•Powers of the ombudsman on review

•Case Studies – your experiences

•The Other bits.

The final module looks at the Archives Office in some detail.

Introduction

Reasoning

reasoning

• 1. the act or process of someone who reasons.

• 2. the process of drawing conclusions or inferences from facts or premises.

• 3. the reasons, arguments, proofs, etc., resulting from this process.

Bibliography: The Macquarie Dictionary Online © Macquarie Dictionary Publishers Pty Ltd

Reasoning

A good decision will have reasons that explain and justify it.

The key objectives of public administration and administrative law hinge on decision makers basing their decisions on set criteria and then being able to show how that was done.

Benefits of reasoned decision making

Fairness- knowing why is basic individual right

Rationality- achieved by looking closely at the relevant

criteriaTransparency

- mystery and suspicion undermine integrityConsistency

- comparison shows similarity and contrasts change

Accountability- knowledge creates opportunity to question

Bibliography: Good Decision Making for Government – © Clayton Utz 1999

Putting your reasons in writing

Section 3 – the Object of RTI

Providing reasons for decision is wholly consistent with the object of the legislation.

“by increasing the accountability…”

“…ability…to participate in their governance”

The easiest and fairest way to do that is to record your reasons at the time you are making your decision.

Requirement for written reasons in RTI

Section 22

Section 43(5)

Section 47(1)(n)

Formal requirements – Section 22

The following elements constitute the formal statutory requirements of a Statement of Reasons :

• a notice in writing of the decision;• the name and designation of the decision maker; • the reasons for the decision to not disclose

information, refuse access or to defer access;• if the decision involves or relies upon consideration

of the public interest, state the public interest considerations on which that decision was based; and

• appropriate information about rights of review.

When is a statement of reasons required

In relation to a primary decision or a decision on internal review that:

the information is exempt from releasepart of the information is exempt from releaseaccess to the information has been deferred because it will become

available as a routine or required disclosure within the next 12 months

access to the information has been deferred because it will be tabled in parliament

the application has been refused as it will substantially or unreasonably divert the resources of a public authority from its other work

the application has been refused as it will interfere substantially or unreasonably with the performance of a Minister other functions

the application is repeat applicationthe application is a vexatious applicationthe information has not been sufficiently identified following

negotiations

Or as required by a direction of the Ombudsman.

Last resort

As assessed disclosure is required to be the type of disclosure of last resort the

statement may also need to state the reasons why the information has not been

released by other defined forms of disclosure or

indeed released other than under the RTI Act.

What’s in written reasons?

A statement of reasons can follow a standard format – in effect be modelled on a pro-forma or shell.

BUT

It must, however, be a genuine statement of the actual reasons that were relied upon at the time the decision was made

The Shell – 1. The Decision

• The decision that has been made should be accurately described.

• Refer to relevant sections of RTI Act.- “I am refusing this application for assessed disclosure in accordance with Section 12 subsection (3)(c)(i) of the Right to information Act 2009 (the RTI Act) as it is information which is otherwise available.”

• Refer to relevant sections of other legislation.- ”I am prevented from releasing the personal details of the person who made this statement as to do so would be a breach of Section 16 of the Child, Young Persons, and their Families Act 1997”

• Outlines special conditions (if any).- “In accordance with the discretion provided by Section 18 of the RTI Act I am releasing this information to the applicant by way of inspection of the information at our offices ……”

The Shell – 2. The Decision-Maker

RTI decisions should only be made by persons who are properly authorised under section 21 of the RTI Act to do so.

The Statement of Reasons for a decision must state the name and designation of the person who made the decision.

The Statement of Reasons should refer to the authorisation details.

For example:- “This decision was made by Dale Webster, a delegated officer of the principal officer of the Department of Justice, appointed by an instrument of delegation in accordance with section 24 of the Right to Information Act 2009.”

The Shell – 3. The process

This outlines the main steps by which you take in coming to your decision it needs to include the application of the legislative criteria, the regulations (if required) and the guidelines (if required).

The process by which you make the decision is the process by which you apply the criteria.

“I was unable to find information related to the application in on our current records system and there is no reference to the information in our publications or on our website, however I undertook a search of the Archives Office Open Access system and located all of the information which forms part of this application, therefore I am refusing this application for assessed disclosure in accordance with Section 12 subsection (3)(c)(i) of the Right to information Act 2009 (the RTI Act) as it is information which is otherwise available.”

As we know from exploring the exemptions we must consider each exemption as a series of criteria

The exemptions may fall into one of four types:

1. To satisfy an exemption you must only show that the information meets the description in the section.

2. To satisfy an exemption you must show that the information meets both the description in the section; and Satisfy the “harm” factor in the section where there is an expectation of damage if the documents were to be disclosed.

3. To satisfy an exemption you must show the information meets the description; and be satisfied that disclosure would be contrary to the public interest.

4. To satisfy an exemption you must show all three elements, that is description, “harm” factor and disclosure would be contrary to the public interest

The exemption criteria - reminder

Refer to Handout 1

Section 39. Information obtained in confidence:Type 3Description:Information divulged in confidence by a person or

government to a PA or Minister andNot described in subsection (2)AND“harm factor”Would be exempt if PA or Minister’s information or

likely to impair ability of PA ir Minister to obtain similar info in future.

AND“public interest test”

The Shell – 4. The main facts and findings

You need to state the main factual basis for a decisions

Either self evident or inferences

“the findings on material questions of fact”

For each inference the evidence to support it should be set out

The final point is to check the facts and findings against the legislation to ensure only relevant matters are considered.

The Shell – 5. The Reasons

The statement needs to fulfil its purpose of informing the person why a decision was made.

Stating reasons drawn from the evidence, the facts and the findings is a way of concluding the statement or bringing it together.

This may be explaining that based on the facts as found only one conclusion can be reached for example, it is Cabinet information as described.

OrIt may be a choice open to a balancing of the factors

you have found as in a choose between Public Interest Factors

Refer Handout 2

The Shell – 6. The right of review

The applicant must be given ‘appropriate’ information concerning the applicant’s rights of review of the decision and the procedure for the exercise of those rights. This includes information for internal review and external review.

• the name, location, postal and the telephone and facsimile numbers, of the review authority

• how applications for review are to be made and any time limits applying to them

• any time limits within which the review authority must review the decision

• whether or not a particular level of review constitutes a statutory prerequisite to any further review.

This might be a separate statement, or embedded in reasons, or embedded in a covering letter.

Putting it all together: Refer Handout 3

Application Received – what for?

Fee or waived?

Transferred or part transferred?

Other from of disclosure?

Negotiation? and outcome

Search result

Criteria for decision

Facts and Findings

Evidence

Reasons

Legislation

Decision

Decision Maker

Review Rights

A schedule

The Ombudsman prefers that the information which is relevant to the application be outlined in a schedule.Commenced at search stage and completed at decision stage.For complex or multi-faceted applications it will help you in ensuring that your reasons are complete.Not a substitute for a full and complete statement of reasons

Headings:•Date of information•File/folio (or other location) reference•Creator/Author/Addressee of each piece of information where applicable•Brief description of each piece of information•Decision on disclosure•Summary reasons for decisions

Case Study

In pairs examine the case study and fill in the blanks in the Statement of Reason.

Report back:

Decision

Key facts/Findings

Reasons

Internal Review – Section 43

Application for review

Application made within 20 working days of receipt of a notice of decision under Section 22

External Party application within 10 working days of receipt of notice under Section 36(3) or 37(3)

Decision

Principal Officer

As soon as possible – but before 15 working days have elapsed (44(1)(b)(ii)

Review and make a fresh decision

Internal review can be undertaken by a delegated officer

Written notice of outcome in same way as original decision

External Review – Section 44

Application for external Review following internal review can be made within 20 days of:

• Receipt of decision on internal review

Or

• 15 working days elapsing from making of application for external review

Other applications for Review – Section 45

a) Section 43 does not applyb) Decision information not in existencec) Decision to give access other than as requested

(not copyright)d) Decision information not in possessione) Belief, on reasonable grounds, that insufficient

searchf) Time has expired on original decisionWithin 20 days if notice of decision given

Also – decision not to consult or adversely affected by outcome of internal review.

Review where decision delayed – Section 46

Time expired as defined in Section 15 then decision taken to be made on last day of relevant timeframe

Therefore must make application for external review within 20 days of that last day

If a decision is then made by PA or Minister then application can be treated as an application to review that decision

PA or Minster can ask for extension of time, which if granted by Ombudsman can be granted with conditions

Powers of the Ombudsman – Section 47

Are extensive including:• Direct the PA or Minister to make a decision if one

not made in time• Direct an internal review if one not undertaken• Early Resolution• Make decision that could be made by PA or Minister• Decline to review, if vexatious, lacks substance or

not actively progressed• Decline to continue if applicant refuses direction• Direct better reasons• Direct PA implement decision on a review• Can decide review if onus of proof is not discharged

Decision of the Ombudsman – Section 48

Must consult PA or Minister prior to finalising adverse decision

May consult other parties

Once finalised may only reconsider to correct accidental mistake or omission

Must provide a statement of reasons

Must not disclose exempt information

May or may not confirm or deny existence of information

Advice and Training in the future:

Section 49: The Ombudsman will:

•Issue and maintain guidelines.•Issue and maintain a Manual.•Provide oral or written advice to Ministers or Public Authorities.

And may publish decisions and reasons for decisions.

The Ombudsman is also likely to provide training on a fee for service basis.

Part 5

Part 5

Section 50 – Offences

Section 51 – Protection against actions for defamation or breach of confidence

Section 52 – Protection in respect of criminal offences under other Acts

Section 53 – ReportingSection 54 – RegulationsSection 55,56 and 58 – Administration, Legislation

repealed and rescinded

Summary

Handout 4 – Checklist for statement of reasons

Application for internal review must be received within 20 days of decision and must be completed within 15 days of receipt

Application for external review must be received within 20 days of decision on internal review.

Some matters not subject of internal review may still be reviewable by Ombudsman

Ombudsman has extensive powers to resolve reviews

……everyone’s right to know

The Right to Information Act 2009

An outcome of the review of the Freedom of Information Act 1991