Access to Reference Material Policy
In the course of a reference, the Australian Law Reform Commission (ALRC) creates or receives many documents containing information of relevance to the reference. The ALRC may draw upon this information in developing recommendations for reform. In some cases the documents may be directly cited as a source of information in a consultation paper or report.
Some of this information is provided in confidence and may be sensitive information that requires careful handling. Other information may already be in the public domain. This policy aims to assist in determining how to handle a request for access to information created or received as part of an ALRC reference.
GENERAL PRINCIPLES
The ALRC has a commitment to open access to information. Wherever appropriate, the ALRC will make information it relies upon available to the public upon request, following the completion of a reference.
At the same time, the ALRC must protect sensitive information provided in confidence. This ensures that the public and key stakeholders will continue to have the confidence to provide sensitive information to the ALRC with the knowledge that it will be handled appropriately.
The ALRC must also protect its ability to make full use of submissions to inform its deliberations, until such time as it completes a reference.
Where a person requests a significant volume of information, the ALRC may seek to recover the reasonable costs of providing the information but will not impose charges unless required to do so by law.
SUBMISSIONS MADE TO THE ALRC
All submissions received are to be considered to be in the public domain following the completion of a reference, unless the submitter indicates that they wish it to be a confidential submission.
Each reference group is to ensure that all submitters are aware of this policy by:
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providing a summary of the policy in all consultation papers seeking submissions;
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upon receipt of a submission, providing the submitter with a letter setting out the ALRC policy and providing an opportunity to clarify that the submission should be treated as confidential.
Non-confidential submissions can be made available to the public upon request following completion of a reference. It is not necessary for the member of the public to make an application under the Freedom of Information Act 1982 (Cth).
For the purposes of this policy, an inquiry is considered to have been completed when the final report is tabled in Parliament.
Requests for access to submissions made to past references should be forwarded to the Receptionist, who will organise access in consultation with the Research Manager. Requesters will be charged the cost of retrieving submissions from the National Archives (if applicable), and standard photocopying, postage and handling costs.
CONFIDENTIAL SUBMISSIONS
If a member of the public is seeking access to a confidential submission, access will only be considered in conjunction with an application under the Freedom of Information Act 1982 (Cth) (FOI Act). In most cases access will be required to be denied to the document in accordance with the breach of confidence exemption in the FOI Act (s 45). However, consideration should be given to the age and content of the document and whether it would be appropriate to seek clarification from the submitter about whether the content is, or remains, confidential and known to only a limited number of people.
ADVISORY COMMITTEE MINUTES
The ALRC encourages open communication at Advisory Committee meetings. Meetings are run according to the Chatham House Rule, and any comments made at these meetings are not attributed to individuals in ALRC publications. This is to be made clear at the commencement of Advisory Committee meetings.
Due to the sensitive nature of minutes documenting Advisory Committee meetings, and the need for the ALRC to ensure continuing open communication at such meetings, requests for access to Advisory Committee minutes will only be considered in conjunction with an application under the FOI Act.
Where the minutes relate to an ongoing reference, the documents may be considered to be exempt under s 36 of the FOI Act as documents reflecting active deliberative processes. Where the minutes relate to a past reference, consideration should be given as to whether the s 45 breach of confidence exemption is applicable.
CONSULTATION MINUTES
Minutes of meetings held between the ALRC and key stakeholders or members of the public may contain information that was provided in confidence, or may be information appropriate for public release. This will depend upon the content of the meeting and the understanding between the ALRC and the others attending the meeting as to whether the meeting was held in confidence.
Reference teams address the issue of confidentiality as part of a consultation meeting, and document any agreement or understanding in the minutes of the meeting.
To support the ALRC’s goal of seeking open communications with stakeholders, access to minutes of consultation meetings will only be considered in conjunction with an application under the FOI Act. Where the document is clearly an in-confidence document, it will generally be appropriate to exempt the document under the s 45 breach of confidence exemption. Where the document is not clear, it will be necessary to approach those who participated in the meeting to ascertain its status.
CORRESPONDENCE
It is not always clear from the face of correspondence (including letters, faxes and emails) whether the information has been provided in confidence or whether it is publicly known information.
To support the ALRC’s goal of seeking open communications with stakeholders, access to correspondence will only be considered in conjunction with an application under the FOI Act. Where the document is clearly an in-confidence document, it will generally be appropriate to exempt the document under the s 45 breach of confidence exemption. Where the document is not clear, it will be necessary to approach the correspondent to ascertain its status.