Freedom of Information Act 1991

This

Act may be cited as the Freedom of Information Act 1991.

The objects of this Act are, consistently with the principle of the

Executive Government's responsibility to Parliament—

to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State;

and

to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.

The means by which it is intended to achieve these objects are as follows:

ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of

Parliament; and

conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and

enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.

Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.

It is the intention of the Parliament—

that this Act should be interpreted and applied so as to further the objects of this Act; and

that a person or body exercising an administrative discretion conferred by this Act exercise the discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.

Agencies are to give effect to this Act in a way that—

assists members of the public and Members of Parliament to exercise rights given by this Act; and

ensures that applications under this Act are dealt with promptly and efficiently.

In this Act, unless the contrary intention appears—

accredited

FOI officer, in relation to an agency, means—

the principal officer of the agency; or

an officer of the agency who—

has completed training of a type approved by the Minister for an accredited FOI officer; and

has been designated by the principal officer of the agency as an accredited FOI officer of the agency; and

—

in relation to an administrative unit of the Public Service—is an executive employee or an employee who usually reports to an executive employee; or

in relation to South Australia Police—is an officer in South

Australia Police; or

in relation to any other agency—is employed in a position that usually reports to the principal officer of the agency or to the deputy or immediate delegate of the principal officer;

agency means—

a

Minister of the Crown; or

a person who holds an office established by an Act; or

an administrative unit of the Public Service; or

South

Australia Police; or

a council; or

an incorporated or unincorporated body—

established or continued in existence for a public purpose by an Act; or

established or continued in existence for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or

subject to control or direction by the Governor, a Minister of the Crown or other instrumentality or agency of the Crown or a council (whether or not the body is established or continued in existence by or under an Act); or

an assessment panel appointed or constituted under Part 6 Division 2 of the Planning,

Development and Infrastructure Act 2016;

or

a person or body declared by the regulations to be an agency, but does not include an exempt agency;

council means a municipal or district council;

court includes a justice;

document includes anything in which information is stored or from which information may be reproduced;

exempt agency means—

a person or body referred to in Schedule

2 or a person or body referred to in that Schedule in respect of functions or classes of information specified in that Schedule; or

an agency declared by regulation to be an exempt agency or declared by regulation to be an exempt agency in respect of functions or classes of information specified in the regulation;

exempt document means a document that is an exempt document by virtue of Schedule

1;

government includes local government, and intergovernmental has a corresponding meaning;

member of the public includes an incorporated or unincorporated body or organisation;

officer of an agency includes—

a member of the agency;

the principal officer of the agency;

any person employed in, or for the purposes of, the agency;

personal affairs of a person includes that person's—

financial affairs;

criminal records;

marital or other personal relationships;

employment records;

personal qualities or attributes, but does not include the personal affairs of a body corporate;

policy document, in relation to an agency, means—

a document containing interpretations, rules, guidelines, statements of policy, practices or precedents; or

a document containing particulars of any administrative scheme; or

a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme; or

a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme; or

any other document of a similar kind, that is used by the agency in connection with the exercise of such of its functions as affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject, but does not include a legislative instrument;

principal officer, in relation to an agency, means—

if the agency consists of a single person (including a corporation sole but not any other body corporate)—that person;

if the agency consists of an unincorporated board or committee—the presiding officer;

in any other case—the chief executive officer of the agency or a person designated by the regulations as principal officer of the agency;

responsible

Minister in relation to a State Government agency means the Minister responsible for administration of the agency or the legislative instrument under which it is established and, if there is no such

Minister, a Minister designated by the regulations as the responsible Minister or, in the absence of such a designation, the

Minister responsible for the administration of this Act;

restricted document means a document that is an exempt document by virtue of Part

1 of Schedule

1;

SACAT means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

State includes Territory;

State

Government agency means an agency other than a council or a prescribed person or body;

State

Records means the office of State Records established under the State

Records Act 1997;

tribunal means any body (other than a court) invested by the law of the State with judicial or quasi-judicial powers.

The holder of an office or a body that forms part, or is established for the purposes, of an agency is not to be regarded as constituting a separate agency.

A reference in this Act to documents held by or in the possession of an agency is, where the agency is a Minister, a reference only to such of those documents as relate to agencies for which the Minister is responsible.

An agency is to be taken to hold a document if the agency has an immediate right of access to the document.

Where—

an agency holds information in computer storage; and

a particular document is capable of being produced by the computer on the basis of information so stored, the agency is to be taken to hold that document.

An agency is not to be taken to hold a document while the document is held by or in the possession of an exempt agency for which the agency is responsible.

This

Act binds the Crown not only in right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

This

Act does not apply to the Parliament, an officer of the Parliament or a parliamentary committee.

In this section—

parliamentary committee means a committee established under the Parliamentary

Committees Act 1991 or any other committee of either or both of the Houses of

Parliament.

For the purposes of this Act—

neither a court nor a judicial officer of a court is to be regarded as an agency or part of an agency; and

neither a registry or other office of a court nor the members of staff of such a registry or other office are, in relation to matters relating to the court's judicial functions, to be regarded as an agency or

part of an agency.

For the purposes of this Act—

neither a tribunal nor an officer vested with power to determine questions raised in proceedings before a tribunal is to be regarded as an agency or part of an agency; and

neither a registry or other office of a tribunal nor the members of staff of such a registry or other office are, in relation to matters relating to the determination of proceedings before the tribunal, to be regarded as an agency or part of an agency.

If a document held by an agency is delivered into the custody of State

Records, the document is, for the purposes of this Act, to be taken to continue in the possession of the agency by which it was formerly held.

Where an agency takes over the functions of another agency and that other agency ceases to exist, the responsibilities of the continuing agency under this Act will include those of the former agency as if the former agency had merged with, and continued as part of, the continuing agency.

Where an agency ceases to exist, and no other agency takes over its functions, the responsibilities of the defunct agency under this Act will devolve—

if the Minister administering this Act nominates an agency—on the agency so nominated as if the former agency had merged with, and continued as part of, the nominated agency; or

in the absence of such a nomination—on State Records.

The responsible Minister for a State Government agency must, at intervals of not more than 12 months, cause an up-to-date information statement to be published in a manner prescribed by regulation.

An agency (other than a State Government agency) must, at intervals of not more than 12 months, cause an up-to-date information statement to be published in a manner prescribed by regulation.

An information statement must contain—

a description of the structure and functions of the agency (including of any board, committee or other body constituted by two or more persons that is part of the agency or has been established for the purpose of advising the agency and whose meetings are open to the public or the minutes of whose meetings are available for public inspection); and

a description of the ways in which the functions (including, in particular, the decision-making functions) of the agency affect members of the public; and

a description of any arrangements that exist to enable members of the public to participate in the formulation of the agency's policy and the exercise of the agency's functions; and

a description of the various kinds of documents that are usually held by the agency, including—

a description of the various kinds of documents that are available for inspection at the agency (whether as part of a public register or otherwise) in accordance with the provisions of a legislative instrument other than this Act, whether or not inspection of any such document is subject to a fee or charge; and

a description of the various kinds of documents that are available for purchase from the agency; and

a description of the various kinds of documents that are available from the agency free of charge; and

a description of the arrangements that exist to enable a member of the public to obtain access to the agency's documents and to seek amendment of the agency's records concerning his or her personal affairs; and

a description of the procedures of the agency in relation to the giving of access to the agency's documents and to the amendment of the agency's records concerning the personal affairs of a member of the public, including—

the designation of the officer or officers to whom inquiries should be made; and

the address or addresses at which applications under this Act should be lodged.

An information statement—

must identify each of the agency's policy documents; and

must specify the designation of the officer or officers to whom inquiries concerning the procedures for inspecting and purchasing the agency's policy documents should be made; and

must specify the address or addresses at which, and the times during which, the agency's policy documents may be inspected and purchased.

Nothing in this section requires the publication of information if its inclusion in a document would result in the document being an exempt document.

An agency must cause copies of—

its most recent information statement; and

each of its policy documents, to be made available for inspection and purchase by members of the public.

Nothing in this section prevents an agency from deleting information from the copies of a policy document if its inclusion in the document would result in the document being an exempt document otherwise than by virtue of clause 9 or 10 of

Schedule 1.

An agency should not enforce a particular policy to the detriment of a person—

if the relevant policy document should have been, but was not, made available for inspection and purchase in accordance with this section at the time the person became liable to the detriment; and

the person could, by knowledge of the policy have avoided liability to the detriment.

This

Part does not apply to—

an agency that is a Minister (unless the agency is declared by regulation to be one to which this Part applies); or

an agency that is exempted by regulation from the obligations of this

Part (provided that any conditions of the exemption are complied with).