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Making submissions to the Information Commissioner

  • When a complaint has been made to the Information Commissioner about an agency’s decision under the FOI Act, the Information Commissioner will usually require written submissions from the agency concerned to support the decision made by it. If a complainant has been refused access to documents because they are exempt, the agency must persuade the Information Commissioner that the documents are exempt for the reasons given.

  • Each exemption clause has a number of parts or elements which must be satisfied if the exemption is to apply. It is essential that the reasons given by an agency support each part of the exemption clause. If the reasons are too general or speculative and do not support a claim for exemption, then the documents will not be exempt.


Questions for Decision-makers

For each exemption claimed:

  • Have you clearly identified the documents or parts of documents in question?

  • Have you read and understood previous decisions made by the information Commissioner that deal with the particular exemption and how it should be applied?

If the exemption clause requires that a particular harm or consequence could follow from disclosure:

 

  • Have you described the expected consequences in detail?

  • Have you provided material to support your claim that the particular harm or consequence is one that can reasonably be expected?

If the exemption clause requires that a document be prepared for a specific purpose:

  • Have you described the factual circumstances surrounding the creation of the document to show that it was prepared for that purpose?

If the exemption requires that a document or information be confidential:

  • Have you described the circumstances in which the document or information was obtained or received?

  • Do the circumstances establish an express or an implied understanding of confidentiality?

  • Is the document or information still confidential, or has confidentiality been eroded over time?

If an exemption requires that a document belong to a class of documents that are exempt:

  • Have you described the document or the circumstances surrounding its creation and established that it is a document of the kind described?


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