Table of Contents

Text of Section 21

21.­(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to­

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,

(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff), or

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body.

(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

When should Section 21 be considered?

Section 21 may be invoked to protect records prejudicial to the functions and negotiations of a public body. It is likely to be considered when the decision maker is concerned that a record would damage the functions or negotiations of its own organisation or those of another public body. Such functions would include:

· the conduct of tests or examinations
· the conduct of investigations, audits or inquiries
· the management of personnel or industrial relations matters
· the management of resources or of the operations of a public body
· the conduct of negotiations.
Section 21 does not apply if, in the opinion of the head "the public interest would, on balance, be better served by granting than by refusing to grant the request".

KEYWORDS AND PHRASES

"could reasonably be expected to" - a more detailed explanation of this phrase is contained in the section of the manual concerning Section 27(1)(b) of the Act.

"have a significant, adverse effect" - In order for this condition to be met, the decision maker would have to identify what effect the release of the record would have on the point at issue. The decision maker would then have to make a reasonable and sustainable argument that such an effect was both significant and adverse.

"the public interest" - a more detailed explanation of this phrase is contained in the part of this manual concerning Section 20(1) of the Act.

ELEMENTS OF THE SECTION

The three conditions under which access may be refused under this section are:-

Section 21(1)(a)

21.­(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to­

prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,

Section 21(1)(a) may be invoked where disclosure could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits or the procedures or methods employed for their conduct. These headings could include:

· tests, e.g. aptitude tests, product testing, psychological tests. etc.
· examinations e.g. State examinations, recruitment competitions, etc.
· investigations, e.g. investigations of fraud or misconduct, etc.
· audits, e.g. internal financial audits, taxation audits, efficiency audits, criteria for selection of persons or areas for audit, certain audit techniques or methods, etc.
· inquiries e.g. internal disciplinary inquiries, preliminary inquiries carried out as a prelude into the conduct of an investigation

In considering whether to apply this exemption, the following issues may be of relevance:

· the extent to which release would disclose information prejudicial to the effectiveness of the audit, investigation or examinations in question,
· the extent to which disclosure would lead to inequity or unfairness
· the extent to which disclosure would divulge procedures or methods employed, or otherwise undermine the control functions of its own organisation or those of any public body
· the stage of the process i.e. whether the investigation, inquiry, audit, etc. is ongoing or has been completed
· the extent to which the information is generally known or is available from other sources e.g. past examination papers

Section 21(1)(b)

This provision may be invoked if release would:

have a significant adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff).

This provision requires that release of the records in question must be liable to have a significant adverse effect on the performance by a public body of its management functions.

The threshold for claiming this exemption is heightened by the requirement to demonstrate a significant adverse effect. "Significant" in this context is likely to be given its ordinary meaning i.e. "important" or "noteworthy". When invoking this provision, the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. In support of such claims, they must show how those conclusions were derived and the sources of evidence to support the argument.

What are functions relating to management?

The purpose of this particular provision is to protect information where its disclosure could compromise the ability of management to effectively carry out its core functions. These include management of the personnel and industrial relations functions in public bodies, as well as functions relating to management of operational matters, financial resources, strategic planning, etc.

This provision may be appropriate to protect sensitive information generated within a public body: e.g. where confidentiality is required for a specific purpose relating to effective management, such as where disclosure would prejudice the conduct or an internal or administrative investigation.

What is the position in relation to personnel records?

The Department of Finance has recommended that all personnel records created from 1 January 1998, including assessments of performance, staff appraisals and promotion evaluations should be prepared on the basis of open access by staff. Following from this, staff should be routinely able to access such material on request (CPU Notice No. 2 refers).

With regard to earlier records, access to personnel records created from 21 April, 1995 onwards may be sought under the Act. In addition, earlier records may be sought where they are being used or are proposed to be used in a manner or for a purpose that affects, or may affect, adversely the interests of the person concerned.

Where a public body believes it necessary to protect personnel records, sections 21(1)(b) and/or 28(3)&(4) may be relevant. These provisions should only be considered in exceptional and specific circumstances where the release of the information in question would either have a clear and demonstrable adverse effect on the ability of management to effectively discharge their functions or the information might be prejudicial to the health, well-being or emotional condition of the requester. In the case of the latter, the requester has the right to nominate a health professional with expertise in the subject matter of the record to whom access to the record must be offered.

Section 21(1)(c)

This provision may be invoked if release would:

disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

This is a strong protection for negotiating positions, etc. as the only requirement for the exemption to be met is that release of records would disclose such positions, etc. There is no requirement that disclosure would have an adverse effect on conduct by a body of its negotiations. Records relating to past, present or future negotiations may be protected.

This exemption would, for example, apply to records relating to the conduct of pay negotiations. Such negotiations clearly require confidentiality to enable parties to put forward options for a settlement, without revealing their bottom line position. Records of this type enjoying protection may include background briefing material, position papers, evaluations of the proposals of the other parties, etc.

Public Interest (Section 21(2))

Subsection (2) provides that a head may decide to release records even when any or all of the above three conditions are met if, in his or her opinion, "the public interest would, on balance, be better served by granting than by refusing to grant the request".

Application of the "public interest test" is set out in general terms in the part of this manual which deals with Section 20 of the Act. The following public interest factors may be relevant in relation to this exemption:

· protects the efficient and effective management of a public body
· ensuring FOI is not used to the detriment of the equitable treatment of individuals
· accountability and objectivity in the decision-making processes.
· there may be a public interest, favouring disclosure, of particular matter to a particular applicant in a particular case, as opposed to disclosure to any person3
As with all public interest considerations, there is no set formula or checklist of considerations. Each situation will have to be addressed on its merits, based on considerations that are relevant at the time the decision is made.

Records prejudicial to another public body's functions

It is to be expected that a decision-maker will inform him/her self as to the likely consequences, if any, for the performance of functions in other public bodies arising from the release of a record.

Section 21(1) can be invoked in respect of a record that a decision-maker considers to be prejudicial to the performance of the functions or negotiations of another public body.

Consultation between the relevant decision-maker and the body whose functions/negotiations may be affected is strongly recommended prior to a final decision being made in such a case. While the views of any other body with an interest in the record should be thoroughly considered, the public body in receipt of the request has the final say in relation to the decision. That body will also be responsible for handling any subsequent appeal and must therefore be satisfied that there are sufficient grounds in the Act to support a decision in relation to the record.

Case precedents

1. Re: Harris v Australian Broadcasting Corporation, (1984) 50 ALR 551 at 564, D10/3

2. Re: Dyki and Commissioner of Taxation, (1990), 22 ALD 124 at 129, D259.

3. Re: emberton and The University of Queensland (Information Commissioner Queensland, Decision No. 94032, 5 December 1994) (Re Pemberton)