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3 Processing the Documents
Upon receipt of the documents the FOI officer reviews each of them to see if all or part of each document contains exempt material and, if it does, whether the document can be released with the exempt material deleted.
An applicant is entitled to access a document unless the document is exempt. However, if it is possible to release a document with exempt sections deleted, an agency is obliged to do so. While documents should be released with exempt material deleted wherever practicable this should not be done if the document subsequently released would be meaningless, misleading or unintelligible.
More than one exemption may apply to a single document.
Exempt documents are listed in Part IV of the Act. The more commonly used exemptions are listed below. Please note that this list does not provide a comprehensive explanation of how the exemptions are applied and is not a substitute for specialist advice. It is provided to highlight the issues which should be considered by the FOI decision makers when considering exemptions as part of processing the documents.
Cabinet Documents (section 28)
Cabinet documents are:
- prepared by or for the Minister or by an agency for the purpose of submission for consideration by the Cabinet; or
- prepared for a Minister in relation to issues to be considered by Cabinet; or
- documents that would disclose a Cabinet decision or a deliberation of Cabinet.
This exemption does not apply to documents which contain purely statistical, technical or scientific material unless the disclosure would reveal any deliberation or decision by Cabinet.
Internal working documents (section 30)
Documents attracting this exemption include those prepared by an officer, a Minister or a member of Council which relate to the deliberative processes of the agency or Government, if the release of those documents would be contrary to the public interest. Examples of documents which may attract this exemption include Ministerial briefs, internal memoranda, consultants’ reports, drafts. However, each document needs to be assessed on an individual basis. This exemption does not apply to documents containing purely factual material.
Law enforcement documents (section 31)
Documents which, if released, would be reasonably likely to prejudice the investigation of breach of a law (including both civil and criminal law), prejudice the fair trial of a person or the impartial adjudication of a case, disclose the identity of a confidential source of information, disclose the methodology of investigations or endanger the lives or physical safety of persons involved may, subject to some public interest exceptions, be exempt under this section.
The decision maker must comply with the consultation and notification requirements in section 31.
Legal Professional Privilege (section 32)
Documents prepared for the purpose of seeking or receiving legal advice by the agency or for litigation.
Personal Affairs (section 33)
Documents are exempt if they would unreasonably disclose information relating to the personal affairs of a third party. ‘Personal affairs’ includes information that discloses or identifies any person, their address or location or from which such things can be reasonably determined. The decision maker must also consider whether the disclosure of the information would be reasonably likely to endanger the life or physical safety of any person. There are also specific provisions applicable to requests for health records.
The decision maker must comply with the consultation and notification requirements in sections 33 and 33A.
Commercial information of a third party (section 34(1))
Documents acquired by an agency from external undertakings (e.g. consultants, businesses) that contain trade secrets, or business, commercial or financial information are exempt where disclosure would be likely to expose the undertaking unreasonably to disadvantage. The decision maker must comply with the consultation and notification requirements in section 34.
Examples of documents which may attract this exemption include tender documents, contracts and documents detailing charging information.
Commercial information where the agency is engaged in trade and commerce (section 34(4))
Documents that contain trade secrets or commercial information of an agency where the agency is engaged in trade and commerce and release would expose it unreasonably to disadvantage.
Documents containing material obtained in confidence (section 35)
Documents which, if released, would:
- impair the agency’s ability to acquire such information in future; or
- disclose information that would be exempt if generated by the agency, are exempt documents under section 35.
The decision maker must comply with the consultation and notification requirements in section 35.
Documents to which secrecy provisions apply (section 38)
When a document is protected from disclosure by another Act, that provision is maintained under the FOI Act.
Council documents (section 38A)
Documents which are official deliberations or decisions of a closed meeting of a local Council are exempt from release.