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Refusal of FOI access request for practical refusal reason

Refusal of FOI access request for practical refusal reason

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland.

Introductory note

This precedent is a refusal of FOI access request for practical refusal reason. Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names.

The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act). State and territory Acts are:

• Freedom of Information Act 1989 (ACT); • Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW);

• Right to Information Act 2009 (Qld);

• Freedom of Information Act 1991 (SA);

• Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

Circumstances in which access may be refused

Commonwealth

In certain circumstances the Cth FOI Act allows an agency or the Minister to refuse to grant access to documents if a practical refusal reason exists in relation to the request.

A "practical refusal reason" is defined in section 24AA of the Cth FOI Act and includes:

• in the case of an agency, where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations: section 24AA(1)(a)(i); and

• in the case of a Minister, where the work involved in the request would substantially and unreasonably interfere with the performance of the Minister's functions: section 24AA(1)(a)(ii).

In determining these matters, relevant considerations include the resources that would have to be used in identifying, locating or collating the documents within the filing system of the agency or office of the Minister concerned: section 24(2)(a).

These provisions (and state or territory equivalents) are designed to ensure that the operations of government agencies are not unduly impeded by agencies having to deal with unreasonably voluminous applications. Applicants must work co-operatively with an agency and an element of reasonableness must be implied in the process.

A decision to refuse access on the ground of an unreasonable diversion of resources is not one to be made lightly.

There is no reason to ignore the circumstance that, by reason of the voluminous nature of a particular request, an agency's ability to process other requests is or may be impaired.

Access to a document may be refused if a document cannot be found or does not appear to exist: section 24A. A respondent must have done all that could reasonably be required of it to find the documents in question before access can be denied on this ground. A "thorough" search is or may be required. Or a "reasonable and sufficient" search. But there is no requirement that an agency examine all documents in its possession: it needs only to do all that can reasonably be done to locate documents.

A claimed inability to find documents may be in truth a refusal (and accordingly reviewable on that basis) or the matter may be remitted for further searches if power to do so exists. The exception allowing for a request for voluminous documents to be refined is one which will be read strictly because the legislation provides for and prescribes disclosure.

States and territories

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) section 23 is in similar terms to the Cth FOI Act section 24AA. The matters to be taken into account are set out in section 23(2). There is no equivalent to section 24A of the Cth FOI Act.

Northern Territory: The Information Act 2002 (NT) section 25(1) provides that a public sector organisation may decide to refuse access because providing access would unreasonably interfere with the operations of the organisation. By section 27(1) an organisation must notify to the relevant effect if, after taking all reasonable steps, that information cannot be identified or found or does not exist.

New South Wales: The Government Information (Public Access) Act 2009 (NSW) section 60(1) states that an agency may refuse to deal with an application for access: • that would require an unreasonable and substantial diversion of the agency's resources; • if it has previously decided a substantially similar application; or • if it is information which is available as a result of it having been produced in compliance with a subpoena or court order. By section 53(2) an agency must undertake reasonable searches to find any government information applied for.

Queensland: The Right to Information Act 2009 (Qld) section 41(1) is to the same effect as Cth FOI Act section 24AA. The prerequisites for the application of section 41(1) are set out in section 42. Applications for the same documents sought previously are dealt with in section 43. By section 27(1) an access application is taken only as applying to documents that are or may be in existence on the day the application is received.

South Australia: The Freedom of Information Act 1991 (SA) section 18(1) is also to the same effect as Cth FOI Act section 24AA. By section 18(2a) an agency may refuse to deal with an application if it is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information. An agency may refuse to give access to a document that was not created or collated by the agency and genuinely forms part of library material held by it: section 20(1)(d).

Tasmania: The Right to Information Act 2009 (Tas) section 19(1) is substantially also to the same effect as Cth FOI Act section 24AA. Repeat or vexatious applications may be refused under section 20.

Victoria: Repeated requests are dealt with in Victoria in the Freedom of Information Act 1982 (Vic) section 24A. However, the previous request must be one where the decision was reviewed externally: section 24A(1)(b). The Act section 25A is substantially to the same effect as Cth FOI Act section 24AA.

Western Australia: A substantial and unreasonable diversion of a position of an agency's resources is also a ground for refusal under section 20(1) of the Freedom of Information Act 1992 (WA). Documents that cannot be found or do not exist are dealt with under section 26 of the Act.