Operational Procedure: ACNC information publication scheme

This Operational Procedure is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework, which sets out the scope, context and definitions common to our policies.

Context statement

This Operational Procedure sets out how the ACNC will comply with the requirement of Part II to the Freedom of Information Act 1982 (Cth) (FOI Act) to establish and maintain an Information Publication Scheme (IPS).

Consistent with the Operational Procedure for reviewing ACNC policies, this OP shall be reviewed every three years. In order to ensure compliance with the ACNC’s broader IPS obligations, a review of this OP shall coincide with a review of the ACNC IPS Agency Plan (Agency Plan, which is Attachment A to the Operational Procedure) and completing a self-assessment of IPS compliance.

Individual directorates are primarily responsible for information which is published that relates to the work of that directorate. Each review should be used as an opportunity for directorates to review published material to ensure that it is accurate and up-to-date.

Procedure

1. As detailed in the Agency Plan, the FOI Act requires that agencies publish certain information as part of their IPS, and that agencies ensure the published information is accurate, up-to-date and complete.
2. The Freedom of Information (FOI) Contact Officer (under the supervision of the Director of Legal & Policy) has primary responsibility for leading the ACNC’s work on IPS compliance. This Operational Procedure guides how:
   1. ACNC staff are to identify documents that may be required to be published under the IPS
   2. the FOI Contact Officer will consider whether a document should be published
   3. the ACNC will maintain an accurate, up-to-date and complete IPS, and
   4. the ACNC will conduct reviews of its IPS.

Key responsibilities for all staff

3. All staff should be aware that certain classes of information are required to be published as part of the IPS. Staff should refer to the list at paragraph 9 of this procedure to guide their assessment of whether a document falls within a category that would require the document to be published.
4. If a staff member believes that a document falls within one of those classes, they should alert their director, and then contact the FOI Contact Officer to confirm whether publication is required.
5. When a staff member forms the view that a document should be published under the IPS, but believes there are good reasons not to publish the document, they must still seek the view of the FOI Contact Officer. They must clearly explain to the FOI Contact Officer why they do not consider that the document should be published. The FOI Contact Officer will then consider whether the document falls within a class of documents that are required to be published, and whether any exemptions apply that would allow the ACNC to decide not to publish the document.
6. Once the FOI Contact Officer has confirmed that the document should be published and the IPS category under which it should be published, the FOI Contact Officer will advise the directorate that owns the document. That directorate must liaise with Education and Public Affairs (EPA), using the procedures set out by EPA, to arrange for the document to be published on the ACNC website within a reasonable time.
7. Where a document will be located on the website should be determined by EPA and the directorate that owns the document. Its location should be logical and it should be situated with related materials. EPA may request minor changes to the document for publishing purposes (such as the removal of footnotes or font changes). This is acceptable, as long as the substance and spirit of the document remains the same.

Documents that are required to be published

8. The list below indicates the directorates most likely to be responsible for each class of information.
9. The following information must be published under the IPS:
   1. Agency Plan – this sets out what information the ACNC will publish, how and to whom it will publish information, and how the ACNC otherwise proposes to comply with Part II of the FOI Act (Legal & Policy).
   2. Details about the ACNC’s structure (for example, its organisational chart) (Corporate Services).
   3. Details about the ACNC's functions and powers – this would include functions that are established by legislation, a decision of government or an executive action (Legal & Policy).
   4. An annual report, or information contained in an annual report – prepared by the ACNC to be laid before the parliament (EPA).
   5. Details about the Commissioner’s appointment and the appointments of advisory board members (EPA).
   6. Details of consultation arrangements for members of the public to comment on specific matters (Relevant directorate).
   7. A document that is routinely provided through FOI requests (under Part III of the FOI Act) (Legal & Policy).
   8. Information that is routinely provided to Parliament (EPA).

Operational information

10. Staff should familiarise themselves with the definition of ‘operational information’, as this is the class of documents that is most likely to be required to be published and updated on a regular basis.
11. Operational information is defined in section 8A(1) of the FOI Act as:

"information held by the agency to assist the agency to perform or exercise the agency's functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities)."

12. Operational information should be published so that members of the public can be informed about the framework of rules, policies, principles and procedures that the ACNC applies when it makes decisions that may affect the public. Publication helps to ensure that no-one is disadvantaged by not understanding how the ACNC operates.
13. Operational information includes:
    1. Commissioner’s Policy Statements, which explain how the ACNC interprets, approaches and administers the ACNC Act
    2. Corporate Policies that contain information directed at guiding or influencing decision making or recommendations that impact members of the public, and
    3. Operational Procedures that define responsibilities within the ACNC, and/or set out how decisions are made.
14. Corporate Policies and Operational Procedures that do not contain operational information as defined in section 8A(1) of the FOI Act do not have to be published. However, in line with the ACNC’s preference for disclosure, directorates may choose to publish them if they may be of interest to the public.
15. Work Instructions, which explain how a process is to be implemented will not generally meet the definition of ‘operational information’ and will not need to be published. Work Instructions are usually specific to a team, and set out the mechanics of how we perform some of our functions, but they would not illuminate the public on how we make decisions that affect them.
16. Section 10 of the FOI Act establishes that a person should not be disadvantaged if they do something which they may not have done if they had had access to operational information which was not published.

Documents that are exempt from publication

17. Some classes of information are exempt from publication as part of the IPS. Section 8C of the FOI Act details the relevant exemptions as follows:
    1. A document which is exempt under Part IV of the FOI Act, which sets out exceptions to the disclosure of documents through FOI requests, and
    2. information that is restricted or prohibited from publication by an enactment (for example, information that is protected by the ACNC secrecy provisions).
18. Where a document contains both exempt and non-exempt material, an edited copy of the document should be prepared and published

FOI Contact Officer - Considering whether a document should be published

19. Once a document has been identified as potentially requiring publication under the IPS, the FOI Contact Officer must identify whether the document falls within a class of documents that are required to be published, whether any relevant exemptions apply and whether, if the document is not required to be published, the document should nevertheless be published, in accordance with the aims of the FOI Act and the pro-disclosure culture of the ACNC. This pro-disclosure position is backed up by subsection 8(4) of the FOI Act – agencies may publish any information, even if they are not required to.
20. The FOI Contact Officer will consult with relevant ACNC staff when considering whether a particular document should be published.
21. If the FOI Contact Officer considers that there is a risk to the ACNC, the government or any government body, or a third party if the information is published, and it is unclear whether an exemption applies, the matter must be discussed with the Director of Legal & Policy.

FOI Contact Officer - Ongoing Obligations

22. The FOI Contact Officer is responsible for ensuring that the ACNC complies with its obligations under the FOI Act in relation to the IPS. To achieve this, the IPS should be updated on an ongoing basis, since new information is produced and existing information is constantly revised. The FOI Contact Officer is required to:
    1. provide information and assistance to staff about the IPS requirements
    2. ensure directors regularly review documents they have published on the website, and
    3. stay informed about any updates to the law or guidance provided by the Office of the Australian Information Commissioner (OAIC) or other relevant government agency.

FOI Contact Officer - Review of the IPS

23. The FOI Contact Officer is to conduct regular reviews of the IPS. Under the FOI Act, the ACNC must review the operation of the IPS within the agency at least every five years. The ACNC will exceed this benchmark. At least every three years, the FOI Contact Officer will co-ordinate an ‘IPS Review’, which will comprise:
    1. a review of this procedure
    2. a review of the ACNC IPS Agency Plan, and
    3. completing an IPS Self-Assessment, using the template provided by the OAIC, to identify and take steps to correct any shortfalls.
24. An IPS Review can be also be conducted before three years has passed since the preceding review – indeed, an IPS Review should be conducted whenever it is considered necessary. If an IPS Review is conducted ahead of schedule, the three-year review cycle resets with that review.
25. At each review, the directors will be asked to assess the documents held by their directorate against the categories of information required to be published as part of the IPS. Directors will be asked to check that:
    1. information which is published that relates to the work of their directorate is current, and
    2. new documents generated since the last IPS review that are required to be published have been forwarded to the FOI Contact Officer for consideration.
26. Directors will also be encouraged to consider whether their directorate holds any additional documents that should be published to further the objects of the FOI Act or the ACNC Act.