Relevant Amendments to the FOI Act

Clause 5(1)(b) of Schedule 1

An amendment Act (Freedom of Information Amendment Act 2004) was assented to by the Governor on 19 November 2004, and amends clause 5(1)(b) of Schedule 1 to the FOI Act by deleting the words “reveal the” and inserting instead the words “prejudice an”. The amending Act comes into operation immediately.


As a result clause 5(1)(b) now provides that matter is exempt “...if its disclosure could reasonably be expected to prejudice an investigation of any contravention or possible contravention of the law in a particular case, whether or not any prosecution or disciplinary proceedings have resulted”.


The effect of this amendment will mean:

  • to establish the exemption it will no longer be sufficient for an agency to show that disclosure of the document in question will merely “reveal” the investigation of a contravention or possible contravention of the law; rather, it will be necessary to show that some harm or damage to an investigation of the relevant kind could reasonably be expected to be caused by disclosure of the information in question.


Relevant Parliamentary debate about this amendment and the reasons for its introduction can be found via this link


This exemption is now similar to that in the FOI legislation of other Australian jurisdictions. A search of cases and FOI legislation published on the Australasian Legal Information Institute site may also assist in interpreting the amended clause (see “FOI and Related Links” on our website).