Are they Exempt? Exempt Agency Documents
LG Leader November 2017
The Freedom of Information Act 1991 defines an agency to include a council. This means that documents held by councils are subject to the FOI Act. Exempt agencies do not fall within this definition and are excluded from the operation of the FOI Act.
An exempt agency is (i) a person or body referred to in Schedule 1 to the FOI Act or (ii), one that is declared by regulation to be an exempt agency, or (iii) a person or body referred to in the Schedule (or declared by regulation) in respect of functions or classes of information specified in the Schedule or regulation. Exempt agencies include the Independent Commissioner Against Corruption, the Office for Public Integrity, the Auditor-General, the Ombudsman and the Local Government Association. This means that these persons and/or bodies are not subject to the provisions of the FOI Act so a person cannot make an application to request disclosure of documents from them.
But, what happens if a council is in possession of documents that have been created by an exempt agency or where there has been an exchange of information or a chain of correspondence between a council and an exempt agency? What is the status of the documents held by the council?
The FOI Act does not provide for documents conveyed by an exempt agency to a council being exempt documents for the purposes of Schedule 1 to the FOI Act. This means that, just because documents have been created or provided by an exempt agency they are exempt from disclosure.
The practical effect is that if a council receives an FOI application seeking access to documents that have been provided to it by an exempt agency the matter contained within the documents will need to be assessed to see if it falls within an exemption under Schedule 1 to the FOI Act. There will usually be a relevant clause that deems a document to be an exempt document but, a recent experience has proven, that this will not always be the case. Accordingly, if there is not a relevant clause, schedule 1 to the FOI Act means the documents (that could be from an exempt agency) will not be exempt and will need to be disclosed.