20321ab7_nformation_Commissioner___OAIC_reedom_of_Information_Act_1982_Issue_description
[FOI Act Part] Part IV — Exempt documents [FOI Act section] 38(1A) [Recommended action] Section 38(1A) should be amended to relate to s 38(1) in the same way that s 47F(3) relates to s 47F(1): that is, s 38(1A) should provide that a document is not exempt under s 38(1) if its disclosure to the person who has requested it is not prohibited by the enactment concerned or any other enactment. [Issue description] 
Section 38(1A) provides that a person's right of access is not affected merely because the document is an exempt document because of a secrecy provision in another enactment where disclosure to that person is not prohibited by that enactment or any other enactment. The obvious intention of s 38(1A) - to give certain people access to documents that cannot be accessed by others - would have been more simply achieved if s 38(1A) had provided that a document is not exempt if its disclosure to the person who has requested it is not prohibited. (This simpler approach is used in s 47F in relation to documents containing personal information.) Because of the way s 38(1A) is drafted, even if there is no prohibition on the disclosure of a particular document to a particular person: (1) if that person requests access to that document, a minister or an agency is not required to disclose it to that person (s 11A(4)); (2) if that person seeks IC review of a decision to refuse them access to that document, the Information Commissioner does not have the power to decide that the document should be disclosed to that person (s 55L); and (3) if that person seeks review by the Tribunal of an IC review decision to refuse them access to that document, the Tribunal does not have the power to decide that the document should be disclosed to that person (s 58(2)). These consequences do not sit comfortably with the obvious intention of s 38(1A) that a person can be granted access to a document that cannot be accessed by others, if there is no prohibition on the disclosure of that document to that person. (See 'A' and Department of Health and Ageing [2011] AICmr 4, [13]–[16].)
Review of freedom of information legislation| Office of the Australian Information Commissioner - OAIC
Issue description