49 Contrary to public interest

OIC note: The public interest balancing test is explained in the Annotation to section 47(3)(b) of the RTI Act. Specifically, for more detailed information about how the public interest test has been applied in particular contexts or in relation to particular documents, please see the ‘Public interest test applied - contexts’ part of that Annotation. In addition, the ‘Public interest test applied - factors’ part of that Annotation provides links to decisions which have considered particular public interest factors listed in schedule 4, as well as links to FOI Act Annotations where FOI Act provisions operated in a similar way to the current RTI Act public interest factors.

(1) If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.

(2) This section sets out the steps, and, in schedule 4, factors, the Parliament considers appropriate for deciding, for types of information (other than exempt information), whether disclosure would, on balance, be contrary to the public interest.

(3) If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the public interest, the agency or Minister must undertake the following steps—

(a) identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information (an irrelevant factor);

(b) identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including any factor mentioned in schedule 4, part 2;

(c) identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including any factor mentioned in schedule 4, part 3 or 4;

(d) disregard any irrelevant factor;

(e) having regard to subsection (4), balance any relevant factor or factors favouring disclosure against any relevant factor or factors favouring nondisclosure;

(f) decide whether, on balance, disclosure of the information would be contrary to the public interest;

(g) unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act.

(4) The factors mentioned in schedule 4, part 4 are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.

(5) However, despite an agency or Minister being able, under section 47(3)(b), to refuse access to all or part of a document, the agency or Minister may decide to give access.