IGIS role in FOI and Archives matters

The Freedom of Information Act 1982 (FOI Act) sets out various exemptions to the requirement for government agencies to provide documents. One of the exemptions applies to documents affecting national security, defence or international relations. Before deciding that a document is not exempt under this provision the Administrative Appeals Tribunal (AAT) and the Information Commissioner are required to seek evidence from the IGIS. There are equivalent provisions in the Archives Act 1983 for the AAT.

In this reporting period the IGIS was called on once by the Information Commissioner to give evidence in an FOI matter.

The IGIS was notified by the AAT of two new cases where the IGIS may be required to give evidence. At the end of the reporting period the IGIS had not been called to give evidence in either case. In addition, one case in which there was a possibility the IGIS may need to give further evidence was carried over from the previous reporting period. In that case, Fernandes and National Archives of Australia [2014] AATA 180 (2 April 2014), the IGIS had given evidence about a number of documents. The AAT's decision that two parts of one contested document could be released was appealed to the Federal Court. On 17 November 2014 the Federal Court remitted the matter to the AAT for reconsideration. The AAT decided it did not need to call upon the IGIS to provide further evidence. On 26 May 2015 the AAT decided that the relevant material should remain exempt.

The number of cases referred to the IGIS by the Information Commissioner and the AAT is similar to previous reporting periods. If the Freedom of Information Amendment (New Arrangements) Bill 2014, currently before the Senate, is passed by Parliament the AAT would have sole jurisdiction for external merits review of FOI decisions which would impact on the IGIS's future role in these matters.