Consulting third parties
Sections 32 and 33 of the FOI Act together provide that an agency is not to give access to a document that contains:
- personal information about an individual;
- information concerning the trade secrets of a person;
- information (other than trade secrets) that has a commercial value to a person; or
- information concerning the business, professional, commercial or financial affairs of a person;
unless it has taken such steps as are reasonably practicable to seek the views of the third party as to whether that information is exempt under clause 3 (personal information) or clause 4 (trade secrets, commercial or business information) of Schedule 1 to the FOI Act.
There is no requirement to ‘consult’ if:
- the agency does not propose to grant access; or
- the agency releases the document with the relevant personal, commercial or business information deleted from the document (under section 24).
If an agency 'takes such steps as are reasonably practicable' and does not receive a response from a third party, the agency must go ahead and make its decision on access based on the information and facts before it.
If the views of a third party are obtained, and the third party objects to disclosure, the onus remains with the agency’s decision-maker to decide whether the information is actually exempt. A third party’s objection to disclosure is not sufficient of itself to justify an exemption claim. A third party does not have a power of veto over an agency’s decision to release documents.
However, a third party does have review rights if the agency decides to give access to documents contrary to the third party’s claims that the document or information is exempt (section 34).