Freedom of Information: A Comparative Legal Survey - Federation of ...

of the transfer and the 30 days for responding runs from the time the public body to whom the matter
has been transferred receives the request (sections 8 and 7(4)). Where no response is provided within the
appropriate period, the applicant may appeal as though this were a refusal (section 30(3)).
Section 10(2) provides for a number of circumstances where the grant of access to a document may be
deferred. These include situations where publication of a document within a set timeframe is required
by any other law, until that timeframe has passed; where a document is prepared for presentation to
Parliament or a particular person or body, until a reasonable time has been allowed to present it to the
Parliament or that person; or where premature release would be contrary to the public interest, until
such time as release would no longer be contrary to the public interest. Applicants must be informed of a
decision to defer within 14 days of its having been made (section 10(3)).
There are a number of problems with these provisions. While it is reasonable to let legal regimes requiring
publication overrule an access law, this is so only where those regimes include reasonably short timeframes
for publication. Under the rule stated above, even a publication date of years hence would stall disclosure
of documents. The rule allowing deferrals where documents are being prepared for others is relatively
unique. It may be that this is a sort of quid pro quo for the absence of a general ‘internal deliberations’
exception, such as is found in many access laws (see below, under Exceptions). At the same time, it would
be preferable if this ground for deferral at least had a harm component built into it, so that non-disclosure
could be justifi ed only where disclosure would cause harm of some sort. The rule on premature disclosure
being against the public interest is almost an invitation to abuse. In other laws, the public interest may serve
to override exceptions and justify disclosure, not the other way around, as is the case here. Finally, allowing
public bodies to wait 14 days to inform applicants after they have made a decision to defer disclosure is
quite unnecessary; instead, applicants should be informed of this immediately.
Regulation 18 provides for notice to be provided to third parties where their personal privacy may be
affected by granting access to a requested document. Where access is to be granted, the third party is
entitled to a copy.
Notice must be provided to applicants of the decision on their request. Where the decision is to refuse or
defer access, in whole or in part, the applicant must be notifi ed of this fact, along with reasons and the
“options available to an aggrieved applicant”, presumably to seek review of the decision (sections 7(5) and
11(2)). Where access is provided, applicants shall be notifi ed of the manner of access, any fees levied and
the location for any direct inspection of documents (regulation 14(2)).
The Act provides, at section 9, for access to be given in the form specifi ed by an applicant, and listed options
include an opportunity to inspect the document or to listen to or view it; a copy of the document, duly
authenticated (for example with the offi cial stamp of the public body); or a transcript of the words contained
in sounds, images or codifi ed documents. Access may be given in another form where access in the form
requested would be detrimental to the document, inappropriate or constitute an infringement of copyright.
Furthermore, in accordance with regulation 16, where the original document is such that it would yield only
a poor copy, the applicant shall be informed of this and alternatives suggested.
Section 12 of the Act provides that applicants shall bear the cost of reproducing documents, although
the head of the concerned public body may waive or reduce the fee. Section 13, however, provides that
access shall be granted where the “cost incurred by the public authority in granting access has been
paid”, suggesting that other costs may also be charged. However, the Regulations refer repeatedly and
only to reproduction costs (see regulations 10(a), 14(2)(b), 20 and 21(1)) and, in practice, these, along with
dissemination costs, are the only fees charged. Regulation 20 also provides for applications to the Minster
requesting fee reductions or waivers.
Duty to Publish
Section 4 of the Act provides for proactive publication of the information listed in the First Schedule, initially
in accordance with a formula set by the minister. This lists, among other things, a description of the
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