Third party rights under the FOI Act : Office of the Information Commissioner

A person may apply to an agency for access to documents that include information about you.  If this happens, you are known as a ‘third party’ to the access application.

The information may be of two kinds:

• personal information about you; or
• commercial, business, professional or financial information about you, your company or your business.

If the personal information is about you as a private individual, that information is likely to be exempt and people would not usually be able to get access to it (clause 3).  If you are a government officer and the information relates to what you do in your job, people are likely to get access to that information.  If the information is about your business, that information may be disclosed depending on the consequences of giving it out (clause 4).

If an agency is proposing to give another person access to a document containing information about you, before doing so it must take steps to seek your views about whether the information is exempt (sections 32 and 33).

If the agency decides to give a person access to your information against your wishes, it must inform you in writing of the reasons for its decision and of your rights to have its decision reviewed (section 34).  You have the right to apply for review of the agency’s decision.  There are time limits associated with applying for review of a decision. The agency must not give access to the documents until the time for you to exercise your rights of review has expired. 

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). 

Who is a third party under the Freedom of Information Act 1992?

You are a third party if:-

• Personal information about you is contained in documents held by a government agency and an application has been made by someone else seeking access to those documents.

OR

• Commercial or business information about you, your company or your business is contained in documents held by a government agency and an application has been made by someone else seeking access to those documents.

Before any decision is made to release a document containing personal information about you or commercial or business information about you, your company or your business, an agency must consult you and take into account your views.

An agency does not have to consult with you if it decides to deny access to the documents.  You may be advised that an application has been made, but normally in such cases the agency advises the applicant direct that the documents are exempt.

How will I know if an agency is considering the release of documents involving me or my business?

The agency will contact you and ask whether you consent to the disclosure of the documents, or if you consider the documents contain matter that is exempt.

What must I do if I am consulted by the agency?

The agency will require you to respond either by telephone or in writing, within a specified time.  If you do not consent to disclosure of the documents, you must tell the agency why and give your reasons.  Discussion with the agency may assist you to explain your views fully.

If you do not respond within the time specified, your rights as a third party no longer apply and the agency will proceed to make a decision and advise the applicant.  You will no longer be involved or advised of the outcome.

What does the agency do after consulting me?

The agency will take your views into consideration before issuing a formal notice of decision on whether or not to grant access to the applicant.

What are my rights as a third party?

If the agency decides to grant the applicant access to the documents against your wishes, you will be advised, and informed of your rights of review.

The agency must not release the documents until the time for you to “appeal” against that decision has expired, and if you do appeal, the documents cannot be released until the process is completed.

How do I “appeal” against an agency’s decision?

In the first instance you apply to the agency for an internal review which will be conducted by someone senior to the person who made the initial decision.

After internal review, if you are still dissatisfied with the agency’s decision you can lodge a complaint in writing with the Information Commissioner.

The Information Commissioner is appointed by Parliament to provide an independent avenue of review of agency decisions, and seek conciliation where possible.

There are no costs to you for internal review (by the agency) or external review by the Information Commissioner.

You have the right to apply for review of the agency’s decision if an agency decides to give access to your personal or business information contrary to your views.  There are time limits associated with applying for review of a decision. The agency must not give access to the documents until the time for you to exercise your rights of review has expired.

For information about exercising your review rights, refer to Review of Agency Decisions.