Part 3: Processing and deciding Freedom of Information requests

Administering the FOI Act — general considerations

Key principles

3.1The Freedom of Information Act 1982 (FOI Act) specifies the way agencies and ministers process FOI requests for access to documents. Further information about the agencies subject to the FOI Act and the documents available for access under the FOI Act is in Part 2 of these Guidelines.

3.2In addition to the detailed guidance in this Part, agencies and ministers should have regard to the principles that underpin the right to obtain access to documents held by government (see Part 1 of these Guidelines). These include that:

• subject to the FOI Act, every person^[1] has a legally enforceable right to obtain access to government documents (s 11(1))
• a person’s reasons for seeking access to a document, or an agency or minister’s belief about a person’s reasons for seeking access, are not relevant (s 11(2))^[2]
• the functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4))
• the FOI Act does not limit any power to give access or publish to information or documents under other legislative or administrative arrangements (s 3A(2)).

3.3 The OAIC has developed a ‘Self-Assessment Tool’ to assist agencies understand the effectiveness of their information access systems and the extent to which these comply with the FOI Act. The Self-Assessment Tool includes sections on proactive release of government held information and processing requests for access and can be found on the OAIC website.^[3] The Self-Assessment Tool can be used in conjunction with these Guidelines.

3.4 Part 3 of the FOI Guidelines provides agencies and ministers with guidance on processing and deciding requests for access under s 15 of the FOI Act. Guidance on applying charges can be found in Part 4 ; applying exemptions in Part 5; applying conditional exemptions in Part 6; amendment and annotation of personal records in Part 7; internal review in Part 9; review by the Information Commissioner in Part 10; investigations and complaints in Part 11; vexatious applicant declarations in Part 12; the Information Publication Scheme in Part 13; the disclosure log in Part 14 and reporting in Part 15.

Access to government information — administrative release

3.5 An agency or minister may choose to provide administrative access outside the formal FOI Act request process.^[4] This may be as informal and flexible as providing information or documents when requested by a member of the public, or collating and releasing data or statistics following receipt of a specific FOI request. Alternatively, an agency or minister may choose to establish, and notify on its website, an administrative access arrangement that is to operate alongside the FOI Act, either generally or for specific categories of information or documents.^[5]

3.6 Administrative release can offer benefits to agencies, ministers and members of the public. The advantages of administrative release include that it:

• advances the objects of the FOI Act by facilitating public access to information promptly and at the lowest reasonable cost
• encourages flexibility and engagement with the public
• can rely on technology to facilitate easy collation, integration and distribution of information
• can offer a lead-in to the FOI process by enabling a person to clarify the type of information they wish to access from an agency
• aligns with the broader movement in public administration to facilitate dialogue and negotiation between parties before formal legal processes are used
• potentially offers cost benefits and quicker processing times.

3.7 Administrative access arrangements should be tailored to the size of an agency, its work, the FOI requests it typically receives, and its regular procedures for public contact and access.^[6]

3.8 To facilitate early discussion and promote the use of administrative access schemes, agencies should promote all forms of access to the information they hold. As well as proactively publishing information and making information available through administrative access schemes, agencies may encourage members of the public to contact them to discuss the best way to obtain relevant information, before a formal FOI request is made.

3.9 Administrative access arrangements should operate alongside FOI Act processes. Importantly, there should be an efficient process for referring administrative requests to the formal FOI process where FOI is more appropriate or where the FOI applicant would prefer to apply under the FOI Act.^[7] Agencies must comply with obligations arising from the formal FOI process, including the obligation to provide reasons for its decision within the stipulated timeframe when responding to an administrative access request. In circumstances where the FOI applicant has requested documents under the FOI Act, but the agency is minded to release documents under administrative access arrangements, it is expected that the agency will seek the FOI applicant’s consent, and withdrawal of the FOI request, before releasing the documents administratively. ^[8]

3.10 Administrative release of an individual’s own personal information must also comply with the minimum requirements set out in Australian Privacy Principle (APP) 12 of the Privacy Act even if the agency has separately formalised a process for applying for access and correction under the Privacy Act. Similarly, arrangements that allow for correction of personal information must comply with the minimum requirements set out in APP 13.^[9]

3.11 Agencies should also be mindful of s 15A of the FOI Act which provides that where the agency has established procedures for employees to access their personnel records, the employee cannot make a request under s 15 of the FOI Act unless:

• they first make a request under s 15A and
  • they are not satisfied with the outcome of the request or
  • they have not been notified of the outcome of their request within 30 days.

Further information about the operation of s 15A can be found in Part 2 of these Guidelines ([2.91]).

3.12 Giving employees access to their personnel records outside of the FOI Act allows agencies to more quickly and efficiently provide access to this category of personal information without the formal requirements of processing an FOI request under s 15 of the FOI Act.

Right of access

3.13 Every person has the legally enforceable right to obtain access to a document of an agency or an official document of a minister (s 11(1)). An FOI applicant does not have to reside in Australia or be an Australian citizen.^[10] The term ‘person’ also includes a body politic or body corporate, such as a company.^[11]

Reasons for a request

3.14 A person’s right of access is not affected by any reasons they give for seeking access, or an agency’s or minister’s belief as to the reasons for seeking access (s 11(2)). In general, any use an applicant might make of the documents is not relevant to the decision whether to grant them access. In the decision of ‘FG’ and National Archives of Australia, the Information Commissioner explained that s 11(2) is to be read as meaning that a person’s right of access is not to be adversely affected or diminished by their stated or assumed reasons.^[12] However, the Information Commissioner in ‘FG’ also explained that an applicant’s reasons for requesting the information may be a relevant consideration for the purposes of considering whether disclosure would be unreasonable where required under an exemption or for the purposes of the public interest test for a conditional exemption.^[13] For example, when deciding whether the disclosure of personal information about a person under s 47F(1) would be unreasonable, an agency or minister may take into account the likelihood of an FOI applicant publishing the personal information in an article.^[14]

3.15 Nothing in the FOI Act limits what an applicant may do with the released documents (although other legal restrictions such as copyright will still apply, see [ 3.326]—[3.331]). A decision to give a person access should therefore be made in the knowledge that they may share the content of the documents with others, or publish them to a larger audience.^[15]

3.16 However, it would be incorrect for an agency or minister to proceed on the basis that disclosure under the FOI Act is always the same as ‘disclosure to the world at large’.^[16] Although the FOI Act does not limit further dissemination by the FOI applicant, agencies and ministers should be aware that not every applicant will disseminate information obtained through an FOI request. Agencies and ministers should ensure that each FOI request is examined on its own merits when deciding whether disclosure of the information would be unreasonable under a particular exemption, where unreasonableness is a relevant consideration.

3.17 In addition, the disclosure log provisions require documents released in response to FOI requests to be published on a website within 10 working days of them being released to the FOI applicant, subject to limited exceptions for personal, business and other information (see Part 14 of these Guidelines). Agencies and ministers are encouraged to provide advance notice to FOI applicants and third parties that, if released, the documents will be published in a disclosure log subject to certain exceptions.^[17]

The applicant’s identity

3.18 The FOI Act does not require an applicant who is a natural person to disclose or provide proof of their identity, nor does it require a body corporate or politic to establish that it is a legal entity. The FOI Act does not prevent a natural person from using a pseudonym.^[18]

3.19 An FOI applicant’s identity can nevertheless be relevant in deciding if requested documents are exempt from disclosure. For example, where a person has submitted an FOI request for their own personal information, or documents relating to their business affairs, an agency or minister should be satisfied of the FOI applicant’s identity before giving them access to the documents, particularly where the FOI applicant purports to seek access to their own personal or business information. The protections under ss 90–92 of the FOI Act for officers disclosing documents in good faith may not apply if an agency or minister’s office has been negligent in failing to make appropriate enquiries (see [ 3.326 ]—[ 3.331 ]). If the identity of the FOI applicant cannot be verified, the agency may decide that disclosure of personal information would be unreasonable and contrary to the public interest in all the circumstances.

3.20 However, it will not generally be necessary to confirm the identity of the FOI applicant when deciding an FOI request seeking access to non-personal information. Circumstances in which identification may be necessary include where the requested information includes personal or business information, or where it may be subject to secrecy provisions that prohibit release except to certain persons or in certain circumstances.

3.21 The OAIC encourages agencies to make online FOI request forms available to increase the timely and efficient processing of FOI requests. Online forms can capture relevant contact details for consultation, assist with triage, registration and acknowledgement and can also help applicants understand how to identify the documents they want to access. However, while an agency may choose to make an FOI request form available on its website, agencies cannot refuse to process an FOI request form submitted by other means such as by email or post).

3.22 The rise in the use of Artificial Intelligence (AI) brings with it the potential for FOI requests to be made without human intervention. As noted above, the FOI Act does not prevent the use of a pseudonym and an FOI request is not invalid on this basis. It follows that an FOI request is not invalid on the basis that the identity of the requestor is not apparent.

3.23 However, the legally enforceable right of access in s 11 of the FOI Act is conferred on ‘every person’. Section 2C of the Acts Interpretation Act 1901 extends the definition of ‘person’ to include ‘a body politic or corporate as well as an individual’. Without a person or corporate entity making an FOI request (even if assisted by AI), there is no right of access under the FOI Act. To reduce the possibility of ‘bot’ generated FOI requests, agencies may consider publishing an online FOI request form that includes technology that can identify whether the user is a robot. Such a request will not be a valid request under the FOI Act. However, as noted at [3.21] above, the FOI Act does not require any particular form to be completed to make a valid request, or for people to identify themselves. Agencies should be open to receiving FOI requests from people in ways other than by using an online form.

3.24 If a need arises to establish an FOI applicant’s identity, an agency or minister should only seek personal information that is reasonably necessary for the purpose of deciding the FOI request (consistent with APP 3 in the Privacy Act). The minimum amount of personal information required will vary depending on the nature of the documents sought by the applicant and whether the documents contain sensitive material. An FOI applicant’s identity should not be provided to any third party without prior consultation and agreement by the FOI applicant. This also applies if there is a request consultation process under ss 26A, 27 or 27A, or if another agency is consulted. Nevertheless, knowing an FOI applicant’s identity may help a third party more easily decide whether to object to disclosure and to frame any specific objections, and this issue can be raised in consultation with an FOI applicant.

Requests by agents and groups

3.25 An FOI request may be made by one person on behalf of another person (who may be a natural person or a body corporate), by an organisation on behalf of a client, or by a person as the agent or representative of a group of individuals or corporate bodies. This is acknowledged in s 29(5)(a), which refers to payment of an FOI charge causing financial hardship ‘to a person on whose behalf the application was made’.

3.26 The FOI Act does not directly state whether a request must be made by a single entity or whether it can be made by a group, a partnership or an unincorporated association. A logical consequence of the principle that a request can be made by a person using a pseudonym (see [ 3.18 ]) is that a request may be made by a group of individuals or corporate bodies or an unincorporated association.^[19] The expression in s 15 is that 'a person' may request access to a document. The presumption is that words in an Act 'in the singular number include the plural', unless there is a contrary legislative intention (see ss 2C and 23 of the Acts Interpretation Act 1901).

3.27 Further, the FOI Act is to be administered ‘as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). That object will best be met if, wherever practicable, agencies and ministers accept and respond to FOI requests without any threshold enquiry as to the identity or legal personality of the applicant: the agency or minister’s focus should be on the FOI request, not the requester.

3.28 Nor is it exceptional that the administrative law rights of request, complaint and review can be exercised by unincorporated groups or associations.^[20]

3.29 It may nevertheless be problematic to process (or continue processing) an FOI request that is not made singly by an individual or body corporate unless the agency or minister can obtain further information or the name of a contact person. The following is a non-exhaustive summary of those circumstances.

3.30 Firstly, as discussed at [ 3.20 ], the identity of an FOI applicant can be relevant when the requested documents contain personal or business affairs information or are subject to secrecy provisions that prohibit release except to certain persons or in certain circumstances. Where an FOI applicant seeks access to a document on behalf of another person, and the document contains information pertaining to that other person, it may be necessary for the FOI applicant to demonstrate that they have the authority of that person to obtain access and, if necessary, to confirm their right to the information under a secrecy provision (see [5.134]—[5.143]).

3.31 Secondly, an FOI applicant can apply under s 29(5) of the FOI Act for payment of a charge to be reduced or not imposed on the basis that payment of the charge would cause financial hardship to the FOI applicant or to a person on whose behalf the request is made. If an FOI request is made by a group of people, it may be difficult for an agency or minister to decide that issue without receiving more information about the members of the group.

3.32 Thirdly, where the FOI applicant has an affiliation with an organisation but leaves that organisation while the request is being processed (for example, a journalist who leaves a media organisation), it may be necessary to ascertain whether the request was made in a personal or a representative capacity (noting that this should be done when the FOI request is first received by the agency or minister), and whether the FOI applicant wishes the processing of the request to continue. This issue may become more important if a charge is payable, the request has reached the stage of internal or IC review, or a third party objects to disclosure under ss 26A, 27 or 27A of the FOI Act.

The formal requirements of an FOI request

3.33 A request for access to documents under the FOI Act must meet the following formal requirements:

• The FOI request must be in writing (s 15(2)(a)).^[21]
• The FOI request must state that it is a request for the purposes of the FOI Act (s 15(2)(aa)). This requirement distinguishes an FOI request from a simple enquiry requesting administrative access. Agencies and ministers should nevertheless take a flexible approach when assessing whether an applicant has met this requirement. For example, if a person sends an email to an FOI mailbox requesting access to agency documents, the agency may take s 15(2)(aa) as being met because the intention to make an FOI request is clear. If an applicant’s intention is not clear, the agency or minister should contact them to confirm whether the request was intended to be made under the FOI Act.
• The FOI request must provide such information as is reasonably necessary to enable a responsible officer of the agency or the minister to identify the document that is requested (s 15(2)(b)) (see [ 3.194 —3.196]). Before refusing a request for failing to meet this requirement an agency or minister must undertake a ‘request consultation process’ (see [ 3.223 ]—[ 3.229 ]).
• The FOI request must give details of how notices under the FOI Act may be sent to the applicant (s 15(2)(c)). The return address may be a physical, postal or electronic address (such as an email address).^[22]
• The request must be sent to the agency or minister. This may be done by:
  • delivery of the request in person to a central or regional office of the agency or minister as specified in a current telephone directory
  • sending of the request by pre-paid post to an address of the agency or minister as specified in a current telephone directory; or
  • sending by electronic communication to an email or fax address specified by the agency or minister^[23] (s 15(2A)).

3.34 The FOI Act requires an FOI request to be made in writing. Although the FOI Act does not require an FOI applicant to complete a particular form to make a valid FOI request, there can be advantages for agencies in promoting the use of an online form or smartform on their website. These forms can assist in capturing information relevant and necessary to the FOI request, including whether the request relates to an existing application or request, proof of identity for requests seeking access to the applicant’s own personal information or authority to act if made by a representative. Agencies should be careful not to require more personal information than is needed to process the FOI request, for example, by requiring proof of identity when non-personal/policy documents are requested. Further, such forms can incorporate technology to help identify whether a request has been artificially generated.

3.35 An agency is required, under s 15(3), to take reasonable steps to assist a person to make an FOI request that complies with the formal requirements in s 15(2). This may include situations in which an individual has expressed a wish to make an FOI request to an agency or minister (s 15(3)(a)), or where an individual has made a request that does not comply with s 15(2) (see s 15(3)(b)). This requirement is addressed in further detail below.

Taking reasonable steps to assist an applicant

3.36 An agency may only refuse an FOI request that does not meet the formal requirements in s 15(2) and 15(2A) after it has taken reasonable steps to assist a person to make a request that complies with the FOI Act (s 15(3)).

3.37 This duty to take reasonable steps applies both when a person wishes to make an FOI request and when they have made a request that does not meet the formal requirements of the FOI Act (s 15(3)(b)).

3.38 This duty may arise, for example, where a person has expressed a wish to make an FOI request but is prevented from doing so, or would find it difficult to do so, because of their particular circumstances (including health, age or disability; geographical, technological or social isolation; or limited English skills). This duty may also arise where a person has made an FOI request that does not meet all the formal requirements in s 15(2)), for example, where the request does not state that it is a request made under the FOI Act.

3.39 An agency has a separate duty to take reasonable steps to assist a person direct their FOI request to the appropriate agency or minister (s 15(4)). This duty may arise, for example, if the document requested is not in the possession of the agency but is known or likely to be in the possession of another agency or minister. An agency or minister may also transfer an FOI request to another agency or minister under s 16 of the FOI Act if it does not have the document in its possession, or the document requested is more closely connected with the functions of the other agency or minister (see [ 3.58 ]—[ 3.80 ] below).

3.40 While the FOI Act places an obligation only on agencies, ministers are encouraged to adopt a similar approach to assisting applicants.

What are reasonable steps?

3.41 What constitutes ‘reasonable steps’ will depend on the particular circumstances, including the person’s ability to comply with the formal requirements. It is the responsibility of an agency to be able to justify that reasonable steps have been taken in each instance.

3.42 Factors that may be relevant in determining what constitutes reasonable steps in the circumstances may include:

• the nature of the request
• the extent of detail required to clarify the scope of the request
• the FOI applicant’s knowledge (or lack of knowledge) of the structure of government and the functions of agencies
• whether the FOI applicant needs special assistance because of language or literacy issues or because of a disability.

3.43 For example, a reasonable step may include offering to transcribe a verbal request from a person who is unable to submit a written request to the agency so as to record and submit a written FOI request on their behalf.

3.44 Where the person has limited English skills, a reasonable step may include contacting the person using a translation services provider, who can then relay the person’s FOI request to the agency in English.

3.45 If a person has not yet made an FOI request and contacts an agency to ask whether they hold particular information, it is appropriate to explain the agency’s functions and the type of information that is held. A person should be advised if the FOI request relates to information that the agency has already published in its disclosure log, or as part of the Information Publication Scheme (IPS) (see Parts 14 and 13 of these Guidelines respectively).

3.46 An agency should also be flexible in assisting an applicant to provide the details necessary for a request to fulfil the formal requirements of the FOI Act (for example, notifying the FOI applicant of a missing detail by telephone or email). This contact can be made either before or after an FOI request is formally acknowledged. It should rarely be necessary to require the submission of a fresh written FOI request if only a minor detail, such as a date relevant to a particular document or the applicant’s return address, has been omitted from the FOI request. Once the further information is provided, the agency or minister’s office should inform the FOI applicant that their request meets the statutory requirements and that the timeframe for deciding the FOI request has commenced.

3.47 It is important to keep good records of contact with FOI applicants, such as file notes of conversations, so that the agency can demonstrate, if required, that it has taken reasonable steps in accordance with s 15(3) or (4).

3.48 The requirement to take reasonable steps also arises under s 24AB(4) of the FOI Act, which requires that an agency or minister take reasonable steps to assist the FOI applicant revise their FOI request when a practical refusal reason exists, so that the practical refusal reason no longer exists (s 24AB(3)). Reasonable steps might include providing a breakdown of the time estimated for each step to process the request and suggesting what would be a reasonable request in the circumstances.^[24] Further information about the requirements under the request consultation process is outlined below at [3.223]—[3.229].

3.49 If, after taking reasonable steps to assist an applicant make a valid request, the request still does not comply with the formal requirements in s 15 of the FOI Act (except for s 15(2)(b) which requires a request consultation process under s 24AB – see [3.50] below) the agency may treat the request as invalid.

3.50 If an FOI request does not comply with s 15(2)(b) (identification of documents) it is the agency’s duty to take reasonable steps to assist the person make a request than complies with s 15(3). Failure to provide sufficient information about a requested document so that a responsible officer of an agency, or the minister, can identify it, is listed as a practical refusal reason in s 24AA(1)(b) of the FOI Act. Further, the note to s 15(3) states that an agency or minister may refuse to deal with a request if satisfied that a practical refusal reason exists, after undertaking a request consultation process. As a result, both agencies and ministers must undertake a request consultation process, as set out in s 24AB of the FOI Act, before refusing a request on the basis that it does not satisfy the identification of documents requirement in s 15(2)(b). Agencies and ministers cannot simply tell the applicant the request is invalid because it does not satisfy s 15(2)(b) and refuse to deal with it.

Interpreting the scope of a request

3.51 In making a decision about release of documents, it is implicit that the decision-maker must first make findings about the scope of the FOI request and the documents in the agency’s or minister’s possession that fall within that scope.

3.52 The starting point for determining the scope of the FOI request is the wording of the request.^[25] An FOI request should be interpreted as extending to any document that might reasonably be taken to be included within the description the FOI applicant has used.^[26] An FOI request for a ‘file’, including a historical or archived file, should be read as a request for all the documents contained in that file, including the inside and outside of a file cover in the case of a physical document.

3.53 An FOI request for all documents relating to a particular subject will also include any document or print which lists the names of all the files the agency or minister may consider relevant to the request. An agency or minister will need to exercise care in relation to any sensitive material, such as personal names, that may appear on the list. If in doubt, the agency or minister should consult the FOI applicant to discuss what documents they seek. Other considerations relevant to construing the scope of a request are discussed below at [ 3.195 ].

3.54 FOI requests must be read fairly by an agency or minister. A narrow or pedantic approach to construction is not acceptable.^[27] Although a request under the FOI Act must be for ‘documents’ rather than for ‘information’, a request may be phrased with reference to the information that a document contains. This may be an effective and concise way for an FOI applicant to identify documents.

3.55 An FOI applicant may not know exactly what documents exist and may describe a class of documents, for example, all documents relating to a particular person or subject matter; or all documents of a specified class that contain information of a particular kind; or all documents held in a particular place relating to a subject or person. In all these circumstances, where the FOI request is framed by the FOI applicant in terms that are different to the way an agency or minister records, categorises and stores information, the agency has a responsibility to assist the FOI applicant understand what information is in the relevant documents. This may assist the FOI applicant refine the scope of their FOI request to match a specific set of documents. The agency may suggest a revised scope and should work with the FOI applicant to arrive at an appropriate scope of the request.^[28]

3.56 The fact that a person may already have a copy of the document they have requested is not a relevant consideration when considering the scope of a person’s FOI request. However, an agency or minister may choose to consult the FOI applicant to seek their agreement to exclude such material from the scope of their request.

3.57 There have been instances of agencies using s 22 of the FOI Act to delete the names of government officials below the Senior Executive Service (SES) rank on the basis that those names are irrelevant to the scope of an FOI request. There is no apparent logical basis for treating the names of SES officials as being within the scope of a request, but other officials as being irrelevant to the request.^[29] Without further explanation as to why the names of government officials are irrelevant to the scope of a request, it is unlikely that the application of s 22 is appropriately justified. The appropriateness of the deletion of public servants’ names and contact details under s 22 of the FOI Act is discussed further at [3.166].

Transferring FOI requests to other agencies

3.58 Section 16 provides for the transfer of FOI requests between agencies, and between agencies and ministers.^[30] A transfer can occur in some circumstances by agreement between agencies and ministers; in other circumstances a transfer is mandatory (see [ 3.79 ]). As noted at [ 3.39 ], an agency also has a duty under s 15(4) to take reasonable steps to assist a person direct their FOI request to the appropriate agency or minister, and this enables the agency to discuss where a request could be directed with the FOI applicant.

3.59 An agency or minister may partially or wholly transfer an FOI request (s 16(3A)). When an agency or minister receives an FOI request for documents, some of which are in the possession of different agencies, the request is notionally divided into different FOI requests. Each agency or minister then has an obligation to make their own decision on the FOI request in accordance with the FOI Act. Information about reporting FOI requests that are transferred, either in full or in part, can be found in the FOI Statistics Guide on the OAIC’s website.^[31]

3.60 The transfer of an FOI request under s 16 can facilitate access by avoiding the need for the FOI applicant to make a new FOI request to another agency or minister and by providing a whole of government approach to making information available to the public. Transfer of an FOI request also allows the decision to be made by the agency or minister best placed to make an informed assessment about disclosure of relevant documents.

3.61 Because the transfer of an FOI request under s 16 affects the obligations of agencies and ministers, consultation between them is essential. Informal consultation is particularly important in the case of complex FOI requests or FOI requests where the FOI applicant has requested the same documents from numerous agencies or ministers. Agencies and ministers’ offices are encouraged to consult each other as soon as possible and, where an FOI request may contain more than one part, agree promptly as to who will be responsible for each part.

3.62 A decision to transfer an FOI request under s 16 is not open to external review because it is neither an access refusal nor an access grant decision.

3.63 If an agency’s practice is to process FOI requests on behalf of their minister, rather than transfer the request to the minister under s 16, the agency should publish this arrangement on its website, because it is relevant to the requirement to publish information about its functions and decision-making powers affecting members of the public (under s 11(2) of the FOI Act).

3.64 When there is a change of minister, both the outgoing minister and the incoming minister have responsibilities under the FOI Act if undecided requests or reviews and appeals remain on foot. These responsibilities may give rise to the transfer of documents and are dealt with in more detail in Part 2 of these Guidelines.^[32]

3.65 The agency or minister that first receives an FOI request is referred to in the following paragraphs as the ‘transferring agency’, and the agency or minister that receives the transferred FOI request is referred to as the ‘receiving agency’.

Relevant considerations when deciding to transfer an FOI request under s 16

3.66 If a request is deemed to have been refused because it was not decided within the relevant statutory processing time, it cannot be transferred under s 16 of the FOI Act. This is because s 16 provides for transfer of ‘a request’ (defined in s 4 to mean ‘an application made under subsection 15(1)’). If a decision has already been made (including if a decision is deemed to have been made under s 15AC(3)), it is no longer ‘a request’ to which s 16 applies.^[33]

3.67 For a valid transfer to be made, the grounds identified in s 16 need to be met. It is not appropriate to transfer an FOI request on grounds outside those identified in s 16. For example, an agency or minister cannot transfer an FOI request on the basis that it does not have the resources to deal with it or would prefer that another agency that shares possession of the requested document deal with the FOI request.

3.68 It is also a requirement of s 16(1) that the agency or minister to whom an FOI request is made obtains the agreement of the receiving agency before transferring it (s 16(1)). If the receiving agency does not agree to accept the FOI request on transfer, the preconditions in s 16(1) are not met and any purported transfer will be ineffective. The requirement for agreement does not apply with respect to transfers under ss 16(2) or 16(3) (mandatory transfers).

3.69 Agencies and ministers should assess FOI requests promptly to ascertain whether it may be appropriate to transfer a request under s 16 so as not to disadvantage the FOI applicant, or the receiving agency, by impacting on the available time to process the request (with additional work potentially required by the receiving agency to apply for an extension of time to decide the request) or causing undue pressure on the receiving agency (because when a request is transferred to an agency, the request is taken to have been received by the receiving agency on the day it was first received by the transferring agency (s 16(5), see [3.73] below).

3.70 It is good practice for ministers to check whether they hold the document(s) requested as soon as they receive a new FOI request (or whether a portfolio department or other agency holds the requested documents). This is because the time for assessing whether a document is an ‘official document of a minister’ is to be made at the time the FOI request is received.^[34] If the relevant document is in an agency’s possession, that document is a ‘document of an agency’. A document cannot be both a document of a minister and a document of an agency.^[35]

3.71 A transfer under s 16 can only be made to an agency or minister, as defined in the FOI Act (s 4). Therefore this excludes State government authorities, private sector organisations and any other persons. Transferring an FOI request under s 16 is also considered a ‘disclosure’ under the Privacy Act, and therefore it needs to be authorised or required under the FOI Act (in this case, s 16) to be permitted under the Privacy Act (APP 6.2(b)). The lawfulness of a transfer (disclosure) made under s 16 can therefore be considered in the context of a complaint made to the Information Commissioner under the Privacy Act (s 36(1)).

3.72 Where the requested document, or information in the document, originated with, or was received from, a State government authority, agencies and ministers should instead use the consultation provisions under s 26A of the FOI Act if they consider the State government authority might reasonably wish to contend that the circumstances in s 26A(1)(c) apply.^[36]

Timeframe

3.73 A transferred request is deemed to have been received by the receiving agency at the time it was received by the transferring agency (s 16(5)(b)). In other words, the decision-making period commences when the FOI request was originally received. The receiving agency or minister is not given extra time as a result of the transfer. It is therefore important that agencies and ministers give early consideration to whether an FOI request should be transferred. This will enable the notices to the applicant under s 15(5)(a) (acknowledgement of receiving an FOI request) and s 16(4) (transfer of FOI request) to be combined and to ensure the receiving agency or minister is not disadvantaged by delay. In these circumstances, the receiving agency may also consider seeking an extension of the processing period under s 15AA, with the agreement of the applicant. For the extension to be valid, the agency must ensure that the requirements under s 15AA are followed. Further information about the timeframes for notifying a decision under the FOI Act is at [ 3.243 ]—[3.251].

Notifying the applicant

3.74 The transferring agency must advise the FOI applicant that their FOI request has been transferred (s 16(4)). The notification should state when the request was transferred and why, and the name and contact details of the agency or minister to which the request was transferred. Particular care needs to be taken in relation to certain documents whose existence should neither be confirmed nor denied (see [ 3.181 ]—[3.191]). Where it is necessary to enable the receiving agency to deal with the FOI request, the transferring agency should also send a copy of the relevant document to the receiving agency (s 16(4)). As noted at [3.68], when requests and documents are transferred under s 16(1), the receiving agency must agree to the transfer for it to be effective.

3.75 An agency or minister that receives an FOI request may transfer the request, or part of the request, to another agency or minister with their agreement if:

• the document is not in the agency’s or minister’s possession but is to their knowledge in the possession of another agency or minister or
• the subject matter of the document is more closely connected with the functions of another agency or minister (s 16(1)).

3.76 It is implicit in these requirements that an FOI request cannot be transferred solely as a matter of administrative convenience, or because another agency or minister produced the document requested or also has a copy of it. Equally, before a decision is made to transfer an FOI request, an agency or minister should take whatever reasonable steps are necessary to ascertain whether they have the document that meets the description in the FOI request.^[37]

3.77 Part 2 of the FOI Guidelines has more detailed information about the transfer of FOI requests when there is a change of government (see [2.73]—[2.85]).

3.78 Documents generated by the joint activities of a number of agencies (such as an interdepartmental committee) might be ‘more closely connected’ with the agency that chaired the committee or which initiated the production of the document.

Mandatory transfer of requests

3.79 Sections 16(2) and 16(3) provide for the mandatory transfer of certain types of FOI requests, as specified in Table 1 below. These sections relate to requests for access to documents held by an agency but which originated in, or have been received from, agencies exempt from the operation of the FOI Act or agencies that are exempt in respect of specific documents, and the documents are more closely connected with the functions of that other agency. This requirement partially overlaps with s 7, which provides that all agencies and ministers are exempt from the operation of the FOI Act in relation to intelligence agency documents and defence intelligence documents (see Part 2 of these Guidelines).

Transfer of requests without revealing the existence of documents

3.80 Where appropriate, the transferring agency should consult the receiving agency about the possible application of s 25 before completing a transfer. Section 25 makes it clear that an agency or minister does not have to confirm or deny the existence and characteristics of certain documents, that is, documents that are exempt under s 33 (national security, defence or international relations), 37(1) (law enforcement or public safety) or 45A (Parliamentary Budget Office documents). Consultation with the receiving agency is particularly important to prevent inadvertently confirming to an FOI applicant the existence of such a document before the decision-maker has had the opportunity to consider whether to rely on s 25.

Consultation

3.81 Prompt and effective consultation with relevant parties involved in dealing with an FOI request is essential to good administration.

Consultation with other agencies

3.82 Each agency or minister is required to make their own decision in relation to an FOI request. However, before making a decision about release of a document it is good practice to consult other relevant agencies, even if the FOI Act does not require consultation and when the agency does not intend to disclose the document. Through consultation the decision-maker may discover that another agency has already disclosed the document in response to an FOI request, or made it publicly available. Consulting other agencies will also assist in managing requests where an FOI applicant has requested access to the same or similar documents from several agencies.

3.83 In some cases, more than one agency will be involved in creating a document, such as through an inter-agency working group. In such circumstances, agencies should ensure there are procedures in place at the time a document is created to determine whether it will be published under the IPS (see Part 13 of these Guidelines) or released in response to an FOI request. This may lessen the need for consultation if an FOI request is later received.

Consultation with the applicant

3.84 Various provisions of the FOI Act require contact with the FOI applicant. However, agencies and ministers’ offices are encouraged, as a matter of good administrative practice, to contact an FOI applicant to discuss their FOI request as soon as practicable after receiving it. This contact provides an early opportunity to assist the FOI applicant address any formal requirements that have not been met (see [ 3.33 ] above). Early consultation can also lead to greater efficiency in processing the request. The agency or minister can discuss with the applicant the scope of their request, particularly if a preliminary assessment indicates there may be a practical refusal reason [3.192], or where estimated charges may be high (see Part 4 of these Guidelines). In many cases, an FOI applicant may not be aware of the nature and volume of the agency’s records and as a result their request may be expressed in wider terms than is necessary.

3.85 An agency or minister may also wish to seek the FOI applicant’s agreement to extend the processing period (including the period as extended under ss 15(6) or (8)) by no more than 30 days to deal with the request (s 15AA).

Consultation with third parties

3.86 An agency or minister may need to consult a third party where requested documents affect Commonwealth-State relations (s 26A), contain business information (s 27) or are documents affecting another person’s privacy (s 27A).

3.87 In deciding whether to undertake third party consultation, an agency or minister must first decide if consultation is required by making a judgement about whether a third party might reasonably wish to contend that the requested document is exempt from disclosure. In doing so, there is no obligation on the decision-maker to search for things not apparent from the face of the document to which access is sought, or not known to the decision-maker, before deciding whether consultation is needed.^[38]

3.88 There must be some rational basis which the agency or Minister can discern, based on the face of the document, or from something else actually known to the decision-maker, indicating that disclosure of the document would, or could be expected to, unreasonably affect the person adversely in relation to his or her personal information, lawful business or professional affairs.^[39] Consultation is only required where there is some rational basis upon which the person involved could reasonably seek to rely on the actual terms of the exemption (as distinct from, for example, a mere preference or even a strong preference, for document or information not to be disclosed). The mere appearance of a person’s name in the document, in the absence of anything more, may not be sufficient for it to be apparent that a person might reasonably wish to make an exemption contention.^[40] The decision-maker is not otherwise obliged to make inquiries or search for some basis upon which it might appear that a person might reasonably wish to make an exemption contention.^[41]

3.89 As discussed in Chris Drake and Australian Transaction Reports and Analysis Centre (Freedom of information^[42]the consultation requirements in ss 27 and 27A are designed to ensure that third parties are given an opportunity to make submissions in support of a contention that a relevant exemption applies. The same considerations apply to the consultation requirement in s 26A.

3.90 In Drake, the Freedom of Information Commissioner said that the consultation requirement does not apply if the agency has itself formed the view that a relevant exemption or exemptions apply such that access should be denied.^[43] While that reasoning arose in the context of a practical refusal reason, when making other access decisions Drake permits agencies not to consult if they have formed the view that they will not give access to the requested documents. However, it does not prevent consultation to test their thinking, or to elicit further information to inform the FOI decision.

3.91 Where an agency or minister finds that disclosure of a document would likely affect Commonwealth-State relations, the agency or minister must not decide to give the applicant access to the document unless consultation has taken place in accordance with arrangements entered into between the Commonwealth and the State about consultation under s 26A.

3.92 One of the conditions that must be met for consultation between the Commonwealth and a State under s 26A, is that arrangements have been entered into between the Commonwealth and a State about consultation (s 26(1)(a)). This condition has been satisfied as arrangements have been entered into between the Commonwealth and the States to facilitate Commonwealth-State consultation under s 26A of the FOI Act.

3.93 The terms of these arrangements, which are held by the Attorney-General’s Department,^[44] are outlined below:

Administrative arrangements with regard to consultation with State Governments

Arrangements have been put in place to facilitate consultation with State Government agencies where consultation is required pursuant to section 26A.

Agreement has been obtained from the States that all correspondence and communication should, at first instance, go through the delegated FOI contact officer of the particular agency and not directly to the author or action officer whose name may appear on the document. This procedure has been put in place to ensure FOI requests are appropriately received and monitored, and to minimise inconsistency across jurisdictions where an applicant makes FOI requests across several Commonwealth and State agencies.

3.94 As noted at [3.91] above, s 26A(2) of the FOI Act provides that an agency or minister cannot decide to give access to a document unless consultation with a State has taken place in accordance with the arrangements entered into under s 26A of the FOI Act. To avoid confusion as to whether consultation has taken place if a State does not respond to the consultation notice, agencies and ministers are advised to include in the consultation notice a due date for response and advice to the effect that if no response is received it will be assumed the State has no objection to release of the document, and that a decision may be made on that basis.

3.95 The consultation requirements in relation to documents that are business documents (s 27) or documents affecting personal privacy (s 27A) only require an agency or minister to undertake consultation if it is reasonably practicable to give that person a reasonable opportunity to make submissions in support of the exemption contention (ss 27(5) and 27A(4)). In determining whether it would be reasonably practicable to consult, the agency or minister should have regard to all circumstances, including the time limits for processing the request.

3.96 Where an agency or minister is required to consult a third party:

• the timeframe for making a decision is extended by 30 days (s 15(6))
• the agency or minister must give the third party a reasonable opportunity to make submissions in support of the exemption contention (ss 27(4)(a) and 27A(3)(a))
• any submissions by the third party must be considered (ss 27(4)(b) and 27A(3)(b))
• the third party must be given notice of the decision and their review rights (ss 27(6) and 27A(5)) and
• the FOI applicant will only be given access to a document when the third party’s opportunities for review have run out (ss 27(7) and 27A(6)).

3.97 The extension of the processing period by 30 days referred to in s 15(6) does not apply to internal review or IC review. Where an agency identifies, during an internal review, a need to consult a third party who had not previously been consulted, the timeframe for processing the internal review request is not extended.

3.98 If an affected third party does not agree that the FOI applicant should be given access to a document, the agency or minister should explain to the third party that a submission^[45] must be made in support of the exemption contention before the third party’s review rights will apply.^[46] If the third party does not make a submission in support of the exemption contention, the agency or minister is not required to provide written notice of the decision to the third party, nor is the agency or minister required to wait until the third party’s review rights have expired before providing access to the document to the FOI applicant (ss 27(8) and 27A(7)).

3.99 If a third party is consulted, they should be told that if a response is not received within the time specified the agency or minister may proceed to make an access grant decision.

3.100 When consulting a third party, the agency or minister should frame the consultation notice in a way that does not suggest a response. The onus should be placed on the third party to frame their own response and provide their own reasons for contending that the relevant exemption applies. For example, this can be done by asking questions such as ‘do you object to disclosure of the document, and why?’, rather than framing the question in a way that invites a particular response, such as ‘do you agree that disclosure of the document would cause damage to your business?’.

3.101 The third party should also be made aware that the agency or minister is generally required to publish documents that are released in response to an FOI request unless an exception to the publication requirement applies (see Part 14 of these Guidelines). Agencies should also be mindful when consulting third parties that consultation is undertaken in accordance with the Privacy Act and that the FOI applicant’s personal information is not provided to the third party without the FOI applicant’s consent.

3.102 More information on consultation with third parties is in Part 6 of these Guidelines.

Decisions on requests for access to documents

Principles of good decision making under the FOI Act

3.103 The public expects agencies and ministers to act fairly, transparently and consistently in their administrative decision making and to be accountable for the decisions they make. The quality of decisions under the FOI Act is particularly important given the integral role FOI requests can have in securing open government.

3.104 Decisions made under the FOI Act must be consistent both with the requirements of the FOI Act and with general principles of good decision making. Those general principles are explained in 5 best practice guides published by the Administrative Review Council (ARC).^[47] The ARC issued new guidance in the form of a Best Practice Guide: Statements of Reasons which should inform the reasons for decisions provided by agencies and ministers.^[48] That guidance contains references to decision making under the FOI Act. This Part discusses how the ARC guidance and principles are relevant to decisions made under the FOI Act.

3.105 In summary, as the ARC guides explain, the general principles require that:

• decisions are lawfully made
• procedural fairness is observed (ss 15(3), 15(5), 24AB and 29(1))
• decisions are based on findings of fact (s 26(1)(a))
• reasons are given for decisions (s 26(1))
• people directly affected by administrative decisions are informed of their review rights (s 26(1)(c)).

Lawfulness

General principle

3.106 A decision that is made under legislation must conform to the requirements of the legislation and be made by an authorised decision-maker. This requirement is explained in further detail in the ARC Best Practice Guide No 1, Decision Making: Lawfulness.^[49]

Decision making under the FOI Act

3.107 The FOI Act specifies in detail how decisions are to be made and the criteria and principles on which decisions are to be based. For example, the FOI Act specifies:

• the agencies and documents to which the FOI Act applies
• the procedure for making and notifying decisions on FOI requests
• the documents to which access may be refused.

These FOI provisions are discussed below and in other Parts of these Guidelines.

3.108 Decision making under the FOI Act must take into account the objects in s 3 of the FOI Act. As discussed in further detail in Part 1 of these Guidelines, the objects embody a policy — or presumption — of open government that is relevant to all FOI decision making. This is emphasised in s 3(4), which states Parliament’s intention ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’.

3.109 Another specific object, stated in s 3A, is that agencies and ministers retain an administrative discretion (subject to other legislation) to provide access to information and documents other than under the FOI Act.

3.110 Decision-makers must also have regard to these Guidelines when making decisions under the FOI Act (s 93A). The Guidelines are not a legislative instrument (s 93A(3)) and, by contrast with the provisions of the FOI Act, do not have binding force. However, it is well established that decision-makers should, at a minimum, have regard to the Guidelines in discharging powers and functions under the FOI Act.^[50]

Authorised decision-makers

3.111 The FOI Act specifies that a decision relating to an FOI request made to an agency may be made by the responsible minister or the principal officer of the agency, or by officers who are properly authorised (s 23(1)).

3.112 FOI instruments authorising staff to make decisions under s 23 of the FOI Act should be in writing. FOI authorising instruments must be published on an agency’s website because they fall within the definition of ‘operational information’ in s 8A( 1) of the FOI Act and so should be included on an agency’s IPS entry. Officers should confirm that they are authorised before making a decision in response to an FOI request.

3.113 Where all FOI decisions are made by the agency head, this needs to be stated on the agency’s website so that it is clear staff are not authorised to make decisions in response to FOI requests.

3.114 A decision on an FOI request made to a court may be made by the principal officer, or an officer acting within their scope of authority (s 23(2)).

3.115 Agencies should ensure a sufficient number of officers are authorised at appropriately senior levels to make both original and internal review decisions. The capabilities and work level standards of APS employees may assist agencies to ensure they authorise officers who have the necessary skills. ^[51]

3.116 A decision made in response to a request to a minister may be made by the minister personally, or by someone the minister has authorised to act on their behalf, which may be either a member of their staff or an officer of an agency. It would be prudent for a minister to make an authorisation in writing, because the FOI decision will be a decision of the minister, not the person acting on the minister’s behalf.^[52]

3.117 Authorised officers may obtain assistance from other officers and take advice and recommendations into account, but they are nevertheless responsible for reaching an independent decision and exercising any discretion.^[53]

Procedural fairness

General principle

3.118 A decision that directly affects the rights or interests of a person or organisation must be made in accordance with the principles of natural justice (also known as procedural fairness). The decision-maker is required to follow a fair decision-making process, complying with the ‘bias rule’ and the ‘hearing rule’. These requirements are explained in further detail in the ARC Best Practice Guide No 2, Decision Making: Natural Justice.^[54]

3.119 The bias rule requires a decision-maker to be impartial and have no personal stake in the decision to be made. The decision-maker must be free of both actual and apparent bias, that is, of conduct that might appear to a fair-minded observer to affect their impartiality in reaching a decision.^[55] For example, a fair minded observer may perceive there to be a conflict of interest if a person who made an administrative decision affecting the FOI requestor’s rights was also to make a decision on an FOI request seeking access to documents relating to that administrative decision.

3.120 The hearing rule requires that a person who could be adversely affected by a decision be notified that a decision may be made and is given an opportunity to express their views before that occurs.^[56] The nature of this ‘notice and comment’ procedure can vary from one decision or context to another. The minimum requirement, however, is that a person should be given sufficient information and a reasonable opportunity to comment, to ensure that procedural fairness is upheld.

The bias rule and FOI decision making

3.121 The bias rule is relevant to all decision making under the FOI Act. Two examples of where caution is needed are:

• An authorised FOI decision-maker who knows an FOI applicant personally, especially if there is a close or social relationship. Generally, a decision-maker is not prevented from making a decision by reason only of previous contact with an FOI applicant in the context of their work, which may be a regular occurrence in some agencies.
• An authorised FOI decision-maker should exercise case in making decisions about material or documents they have been personally involved with, or had oversight of. In some situations it may be more appropriate that another authorised FOI decision-maker decide the FOI request.

3.122 An FOI decision-maker must approach each decision with an open mind and, for example, consider any submission made by an FOI applicant as to why a document is not exempt or a charge should be reduced. Generally, a decision-maker is not prevented from making a decision by reason of having dealt previously with a similar issue or applicant, or having expressed a view about FOI Act principles or requirements.

3.123 The Australian Public Service Commission has issued guidance to assist agencies to identify and manage conflicts of interest.^[57]

The hearing rule and FOI decision making

3.124 The FOI Act specifies in detail the procedure to be followed in making decisions on FOI requests. For example, agencies and ministers:

• are required to provide reasonable assistance to persons to make FOI requests (s 15(3)) (this subsection does not apply to ministers)
• must notify an FOI applicant that an FOI request has been received (s 15(5))
• must give an applicant a reasonable opportunity to revise a request before it is refused for a practical refusal reason (s 24AB)
• must allow an applicant to respond before a charge is imposed (s 29)
• must provide the applicant with a written statement of reasons for the decision (s 26)
• must advise the applicant of their right to seek internal review or IC review of an adverse decision (s 26(1)(c)).

3.125 The FOI Act also specifically recognises the rights of third parties to be consulted about the release of documents that affect their interests in certain circumstances (ss 26A, 27 and 27A — see Part 6 of these Guidelines).

3.126 A person who disagrees with a decision on access to documents, or amendment or annotation of personal records, has the right to apply for internal review by the agency (internal review is not available if the decision was made personally by the principal officer of the agency or the responsible minister (s 54(1)), as long as the application is made within the relevant statutory timeframes (see Parts 9 and 10 of these Guidelines). The review processes provide an opportunity for an affected person to be heard, and to that extent, for natural justice to be observed.

Facts and evidence

General principle

3.127 An administrative decision must be based on facts. A central obligation of a decision-maker is therefore to identify and separate the ‘material questions of fact’; gather and assess information or evidence to support each finding of fact; and explain how each finding of fact was reached. These requirements are explained in further detail in the ARC Best Practice Guide No 3, Decision Making: Evidence, Facts and Findings.^[58]

3.128 A material question of fact is one that is necessary to a decision — or, put another way, the existence or non-existence of the fact can affect the decision to be made. Legislation will ordinarily set out the factual matters that must be considered, but sometimes these will be present more by implication than by direct legislative statement.

3.129 The obligation rests on a decision-maker to be reasonably satisfied that a finding of fact can or cannot be made on the available evidence. Unless legislation states otherwise, there is no onus or burden on a party to prove that a fact does or does not exist. In discharging the obligation to be reasonably satisfied, the decision-maker may have to draw inferences from the available evidence or information known to the decision-maker. The evidence should be logically capable of supporting the decision-maker’s findings of fact.

Fact finding in FOI decision making

3.130 The obligation on FOI decision-makers to base each decision on facts is captured in s 26(1)(a). The statement of reasons for a decision to refuse or defer access to a document ‘shall state the findings on any material question of fact, referring to the material on which those findings were based, and state the reasons for the decision’ (see below [ 3.28 1]—[ 3.300 ] below).

3.131 The FOI Act specifies the material facts that must be examined in deciding whether to grant access to documents in response to an FOI request. Similarly, it is implicit in many provisions of the FOI Act that findings, including inferences from known facts, may need to be made. The following examples are illustrative:

• a material fact in considering whether a document is exempt under s 33(a)(ii) is whether release of the document would cause damage to the defence of the Commonwealth
• a material fact in considering whether a document is exempt under s 34 is whether the document was created for the dominant purpose of consideration by Cabinet
• in making a decision about release of documents, it is implicit that the decision-maker must first make findings about the scope of the request and the documents in the agency’s possession that fall within that scope
• in deciding whether payment of a charge would cause financial hardship to an applicant (s 29(5)(a)), a decision-maker may need to consider the financial position of an applicant, including, for example, whether the applicant receives income support.

3.132 It follows from the above, that a decision-maker must search for and consider all relevant documents within the scope of the request before deciding that the documents are exempt from disclosure. To decide that the documents are exempt based on the type of document requested does not accord with administrative law principles (unless s 25 applies – see [3.181]—[3.191] below).^[59]

3.133 The standard principle in administrative proceedings — that no party bears the onus of proof, and the decision-maker must be reasonably satisfied of the matters to be decided — does not apply to IC reviews (see Part 10 of these Guidelines).

Reasons

General principle

3.134 Members of the public are entitled to know the reasons why an administrative decision that affects them has been made. Giving reasons promotes fairness, transparency and accountability. It gives the person affected by the decision the opportunity to have the decision explained and to seek review if they wish. This fundamental theme in administrative law and good decision making is explained further in the ARC Best Practice Guide No 4, Decision Making: Reasons.^[60]

3.135 The stated reasons should be meaningful and accurate, setting out what the decision-maker considered and why, including addressing arguments put to the decision-maker. Providing good statements of reasons can lead to greater acceptance of decisions by FOI applicants, with a corresponding reduction in complaints and applications for review.

Reasons under the FOI Act

3.136 Section 26 of the FOI Act requires an applicant to be given the reasons for a decision to refuse or defer access to a document. Section 26 specifies the matters that must be included in the statement of reasons, including the findings on material questions of fact, the public interest factors taken into account in applying a conditional exemption, the name and designation of the agency officer making a decision, and information about the applicant’s review rights.

3.137 Under s 55E of the FOI Act in an IC review of an agency’s IC reviewable decision, the Information Commissioner has power to require an agency to provide a statement or an adequate statement in compliance with its duty to provide a statement of reasons.

Accountability

General principle

3.138 Decision-makers are accountable for their decisions. There are many different forms of accountability, including political, ethical and legal accountability. The system of administrative law ensures both legal accountability and good decision making, through external scrutiny, review and transparency measures. Administrative law accountability is explained in further detail in the ARC Best Practice Guide No 5, Decision Making: Accountability.[61]

Accountability arrangements under the FOI Act

3.139 The FOI Act contains detailed provisions for review and oversight of FOI decision making by the OAIC (see Parts 10 and 11 of these Guidelines). Section 26(1)(c) of the FOI Act requires information to be included in the statement of reasons about the FOI applicant’s rights to review and the procedures for exercising those rights, as well as their right to make a complaint to the Information Commissioner. Further, s 26(1)(b) requires an agency decision-maker to state their name and designation in the statement of reasons for decision (for more information about this requirement see [3.283]).

3.140 In response to a request for access to documents under the FOI Act, a decision-maker may decide to:

• refuse to deal with a request that does not meet the formal requirements for a request in s 15 (see [ 3.33 ]—[3.35])
• refuse access under s 24A on the basis that the document sought does not exist, cannot be found or was not received from a contractor (see [ 3.142 ]—[3.161])
• allow access to all documents as requested, even if some are exempt (s 3A(2)(a))
• refuse access to the requested documents on the basis they are exempt, or refuse access to some documents and give access to others (discussed in Parts 5 and 6 of these Guidelines)
• provide access to the personal information of the FOI applicant through a qualified person under s 47F(5) (discussed in Part 6 of these Guidelines)
• delete exempt or irrelevant material from documents and provide access to edited copies under s 22 (see [ 3.162 ]—[3.176])
• defer access to the requested documents until a later date under s 21 (see [ 3.177 ]—[3.180])
• under s 25 refuse to confirm or deny the existence of a document that would be exempt under s 33, 37(1) or 45A (see [ 3.181 ]—[3.191])
• refuse a request under s 24 if a practical refusal reason exists under s 24AA, following a request consultation process (see [ 3.192 ]—[3.234])
• impose a charge for processing a request or for access to a document to which a request relates under s 29 (see Part 4 of these Guidelines)
• decline to amend or annotate a record of the FOI applicant’s personal information under s 48 (see Part 7 of these Guidelines).

Refusing access to an exempt document

3.141 An agency or minister is not required to give access to a document at a particular time if at that time the document is an 'exempt document' (s 11A(4)). An 'exempt document' is:

• a document that is exempt or conditionally exempt where disclosure would be contrary to the public interest under Part IV of the FOI Act (see Parts 5 and 6 of these Guidelines)
• a document in respect of which an agency, person or body is exempt from the operation of the FOI Act under s 7 (see Part 2 of these Guidelines)
• an official document of a minister that contains some matter that does not relate to the affairs of an agency or of a Department of State (s 4(1)).

Refusing a request for a document that does not exist, cannot be found or is not received from a contractor

3.142 An agency or minister may refuse an FOI request if it has taken ‘all reasonable steps’ to find the document requested and is satisfied the document cannot be found or does not exist (s 24A(1)).^[62] There are 2 elements that must be established before an agency or minister can refuse an FOI request under s 24A:

• the agency or minister must have taken all reasonable steps to find the document and either:
  • the agency or minister is satisfied that the document is in the agency’s or minister’s possession but cannot be found or
  • the agency or minister is satisfied that the document does not exist.^[63]

3.143 Although the FOI Act is silent on what constitutes ‘all reasonable steps’, it is not enough for an agency or minister to simply assert that the document cannot be found or does not exist before taking any demonstrable steps to try to find the requested document. Rather, a thorough and systematic search must be undertaken and documented.^[64]

3.144 Agencies and ministers should undertake a reasonable search based on a flexible and common-sense interpretation of the terms of the FOI request.^[65] What constitutes ‘all reasonable steps’ will depend on the circumstances of each FOI request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. ^[66] To ensure reasonable searches are undertaken, agencies and ministers are encouraged to engage with the FOI applicant in relation to the terms of their FOI request.

3.145 ‘Reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limits assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.^[67] However, where the subject of the requested document falls within the scope of work performed by the agency and records show that work relating to the subject matter of the document has been undertaken, further searches may need to be undertaken if initial searches do not find any documents within scope of the request.^[68]

3.146 The interpretation of the scope of an FOI request impacts search and retrieval of documents within the scope of the request. It is therefore critical that agencies and ministers fully understand the scope of the FOI request and adopt a reasonable approach to the interpretation of the request, before undertaking a search for relevant documents. See for example, 'ADN' and the Australian Taxation Office^[69] and Joshua Badge and Department of Health and Aged Care.^[70]

3.147 Agencies and ministers should assist FOI applicants to identify the specific documents they seek. Doing so will facilitate and promote public access to information in accordance with the objects of the FOI Act. If the document still cannot be found, the statement of reasons should:

• sufficiently identify the document
• explain why the agency or minister is satisfied the document is in the agency’s or minister’s possession but cannot be found or is known not to exist
• describe the steps the agency took to find the document
• note the limitations of any search.

3.148 If a record is known to have been, or is likely to have been, destroyed under an agency’s Records Disposal Authority, or in the course of normal administrative practice,^[71] this should be explained, if possible, with reference to the date of destruction and the agency’s records management policy. A record of searches to plan and keep track of the steps taken to find a document will be useful, particularly when managing complex requests for many documents or when later explaining the search undertaken.^[72]

3.149 If applicable, agencies may need to consider whether contractual measures have been taken to ensure the agency receives a document from a contracted service provider^[73]. If an agency or minister has taken contractual measures to obtain a document from a contracted service provider but has not been able to obtain that document after taking all reasonable steps, the agency or minister may refuse the FOI request (s 24A(2)). ^[74]

3.150 As a minimum, an agency or minister should take comprehensive steps to find documents, having regard to:

• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of document
• the records management systems in place
• the individuals within an agency or minister’s office who may be able to assist with finding documents and
• the age of the documents.^[75]

3.151 The OAIC has developed an agency resource ‘Taking all reasonable steps to find documents in a freedom of information request’ to help agencies and ministers undertake effective and reasonable searches for requested documents. Agencies and ministers should search all possible locations for documents.^[76] These locations may include:

• Case Management Systems
• Records Management Systems (for example TRIM or HPE Content Manager)
• Electronic documents saved on computers, tablets, smart phones and Apps (for example emails on Outlook, text messages etc)
• Electronic documents saved on portable media devices
• Hardcopy files stored in safes, compactus, tambours, desk drawers, etc
• If applicable, backup systems.

3.152 Ensuring that the search is conducted by the officers most likely to be able to find requested documents, rather than the FOI officer, will increase the effectiveness of the search.^[77] Where officers within the agency may have information about the requested documents they should be consulted, and records kept of their advice.^[78] Advising FOI applicants of the relevant business areas that conducted the searches may assure them that all reasonable steps have been taken to identify and retrieve the documents they seek and to assist in their consideration of whether to accept the agency’s or minister’s initial decision.^[79]

3.153 Agencies and ministers are responsible for managing and storing records in a way that facilitates finding them for the purposes of an FOI request.^[80] The steps taken to search for documents should include the use of existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help find the documents.^[81]

3.154 Whether it is necessary for an agency or minister to search its backup systems or physical archives for documents will depend on the circumstances. For example, if the agency is aware that its backup or archive system merely duplicates documents that are easily retrievable from its main records systems, a search of the backup system or archive would be unnecessary. Similarly, if an agency retains its backed-up data for a maximum period of 12 months, and the applicant is seeking documents that are older than 12 months, it will not be necessary to undertake a search of the backup system.^[82]

3.155 On the other hand, where an agency has identified the existence of archived documents, with no evidence those documents have been destroyed, reasonable steps will include searching for physical and electronic documents within the scope of the request in those archives, unless doing so would substantially and unreasonably divert the agency’s resources from its other operations (s 24).^[83]

3.156 However, if an agency or minister is aware that its backup system or archive may contain relevant documents not otherwise available, or if the FOI applicant clearly includes backup systems in their request, a search of the backup system may be required (provided it does not involve a substantial and unreasonable diversion of agency resources, see [ 3.192 ]—[3.234).^[84]

3.157 However, simply because a requested document is old or historical does not mean that searches do not need to be undertaken (unless records show that the document has been destroyed). For example, a document may have been used in subsequent investigations or audits and may be available given appropriate searches.^[85]

3.158 Because ‘possession’ of a document is not limited to actual or physical possession, but can also include constructive possession, where an agency or minister has the right and power to deal with a document, regardless of where and by whom it is stored, the FOI Act may extend to records retained on personal devices or communicated through messaging apps. ^[86] Further, information created or received by officials is defined as a Commonwealth record for the purposes of the Archives Act 1983 (s 3(1)) and needs to be handled in accordance with the National Archives of Australia’s standards and guidance. This extends to official information sent or received via messaging apps, including disappearing messages.^[87]

3.159 As a result, agencies and ministers should ensure they have policies and procedures in place to ensure that all ‘documents of an agency’ and ‘official documents of a minister’ are not only retained but can be readily searched for and found to satisfy FOI requests. Also, where appropriate, FOI sections should ask staff to search messaging apps to find requested documents.

Advising the FOI applicant of the steps taken to find documents

3.160 In their decision, agencies and ministers should explain the steps taken to find documents within the scope of the FOI request, including the dates the searches were conducted, the search parameters used, the time taken to conduct the searches and whether any backup databases were examined.^[88] This explanation will help the FOI applicant understand how searches were conducted and whether there is any merit in seeking further review (internal or IC review). A Search Memo template is available to assist agencies document their searches. ^[89] The OAIC template letters include search descriptions to assist agencies and ministers to advise applicants of search measures taken

3.161 Providing information describing the historic and current recordkeeping environment and the types of records stored in each electronic database may further assist applicants to see whether all reasonable steps have been taken to locate their documents.^[90]

Deleting exempt or irrelevant content from a document

3.162 An agency or minister may refuse access to a document on the ground that it is exempt. If so, the agency or minister must consider whether it would be reasonably practicable to prepare an edited copy of the document for release to the applicant, that is, a copy with relevant deletions made (s 22).^[91]

3.163 An agency or minister is under the same obligation to consider preparing an edited copy of a document by deleting information that would reasonably be regarded as irrelevant to the FOI request.^[92] It is important for agencies and ministers to keep in mind that the implicit purpose of s 22 is to facilitate access to information promptly and at the lowest reasonable cost through the deletion of information that can readily be deleted, and that an applicant has either agreed, or is likely to agree, is irrelevant to their request.^[93]

3.164 In some circumstances, deleting irrelevant information can have advantages for both agencies and ministers and FOI applicants. For example, an agency or minister may not have to consider whether the deleted information is exempt, or if a third party should be consulted. However, it can also increase processing time if large amounts of information need to be deleted. It is also important to note that when access is granted to a document edited under s 22, the decision is reported as a partial access grant when reporting the agency’s FOI statistics.^[94]

3.165 Section 22 does not apply to a document that contains only irrelevant information, which should be treated as beyond the scope of an applicant’s FOI request.^[95]

33.166 In general, it will only be appropriate to delete public servants’ names and contact details as irrelevant under s 22 of the FOI Act if the FOI applicant clearly and explicitly states that they do not require this information, either in their FOI request or in subsequent correspondence.^[96] Where it is not apparent from the terms of the FOI request that the names and contact details of staff can be excluded, an agency or minister should not treat this information as irrelevant to the FOI request without first obtaining the consent of the FOI applicant.

3.167 It is not appropriate for an agency or minister to assume that the FOI applicant has consented to the exclusion of this information based on agency policy or the applicant’s non-response to advice that, unless told otherwise, the agency or minister will treat this information as being irrelevant to the FOI request.^[97]

3.168 Where the agency or minister has identified general work health and safety risks associated with the disclosure of the names and contact details of their staff, or a particular staff member, the agency or minister should consider asking the FOI applicant whether they seek this information as part of their FOI request. This can be done by phone or email, or by inviting a response from the FOI applicant in the letter acknowledging receipt of the FOI request (under s 15(5)(b)). In any event, processing of the FOI request should not be delayed because of any consultation with the FOI applicant about whether this information can be excluded.

3.169 If agencies and ministers adopt a practice of asking FOI applicants whether they wish to exclude this kind of information from the scope of FOI requests, for example, by giving the FOI applicant the option to exclude this information through the use of a check box in an FOI request form, this practice should be published on the agency’s or minister’s website to ensure transparency.

3.170 Deleting the names and contact details of public servants can increase the time it takes to process an FOI request and may also significantly impact processing time estimates which inform whether processing an FOI request would substantially and unreasonably divert an agency’s resources from its other operations, would substantially and unreasonably interfere with the performance of a minister’s functions (s 24AA), or impact the calculation of a preliminary assessment or final charge (s 29).

3.171 The obligation to prepare an edited copy of a document so that it does not contain exempt or irrelevant information is subject to the following conditions:

• it is possible for the agency or minister to prepare an edited copy of the document (s 22(1)(b))
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)) and
• it is not apparent from the applicant’s FOI request or consultation with them, that the applicant would decline access to the edited copy (s 22(1)(d)).

3.172 Applying these considerations, an agency or minister should take a common sense approach in considering whether the number of deletions would be so many that the remaining document would be of little or no value to the applicant.^[98] Similarly, the purpose of providing access to government information under the FOI Act may not be served if such extensive editing is required that it leaves only a skeleton of the former document that conveys little of its content or substance. ^[99] However merely because a document is heavily redacted does not mean it would not be of any interest to the FOI applicant.^[100]

3.173 Consideration should be given to consulting the FOI applicant before deciding to edit a document to delete exempt or irrelevant content. An applicant may be willing to alter the scope of their request to a specific part of the document, ^[101] or to be given administrative access to particular information in the document (see [ 3.5 ]—[3.12]).

3.174 Care and diligence should be exercised when editing a document to delete exempt or irrelevant content under s 22. Inconsistent editing of a document (for example, deleting information from one page but retaining it on another) compromises the right of access to information.^[102] It also creates confusion for FOI applicants, who may be more likely to seek review of the FOI decision.

3.175 For the purposes of transparency, when deleting irrelevant or exempt matter from a sound recording it is suggested that a sound be inserted into the section of the recording that has been deleted. This can be a tone or other obvious noise that makes it clear a deletion has been made. This is preferrable to leaving a section of the recording without sound, making it difficult for the FOI applicant to identify whether the recording is blank or matter has been deleted. The schedule of documents accompanying the decision should also specify the sound that has been added to identify that matter has been deleted and the basis on which deletion have been made.

3.176 If a decision is made to delete or edit exempt or irrelevant matter, an agency or minister must give the FOI applicant notice in writing that the edited copy has been prepared (s 22(3)). This notice must include the grounds for the deletions, including any specific provisions about which matter the agency or minister claims to be exempt was deleted. It is generally helpful to the FOI applicant if the document is marked where text has been deleted and the grounds for the deletion added at the point of deletion. A schedule of documents accompanying the decision which identifies the basis for the deletion (e.g., ‘staff name’) will assist FOI applicants’ understanding of what has been deleted.

Deferring access to a document

3.177 Where an agency or minister decides to grant access to a document, they may defer access:

• if publication of the document is required by law — until the expiration of the period within which the document is required to be published (s 21(1)(a))
• if the document has been prepared for presentation to Parliament or for the purpose of being made available to a particular person or body, or with the intention that it should be so made available — until the expiration of a reasonable period after its preparation for it to be so presented or made available (s 21(1)(b))
• if the premature release of the document would be contrary to the public interest — until an event occurs or the period of time expires after which the release of the document would not be contrary to the public interest^[103] (s 21(1)(c))
• if a minister considers that the document is of such general public interest that the Parliament should be informed of the contents of the document before the document is otherwise made public — until the expiration of 5 sitting days of either House of Parliament (s 21(1)(d)).

3.178 A decision under s 21 does not empower an agency or minister to defer deciding whether to grant access to requested documents. Rather, it authorises a decision to grant access with deferral of the operation of that decision.^[104]

3.179 The agency or minister must inform the applicant of the reasons for deferring access and, as far as practicable, indicate how long the deferment period will be (s 21(2)).

3.180 A decision to defer access is an access refusal decision that is reviewable by the Information Commissioner (other than where a minister considers that Parliament should first be informed of the contents of the document) (s 53A(d)).

Refusing to confirm or deny existence of a document

3.181 The act of confirming or denying the existence of a document can sometimes cause damage similar to disclosing the document itself. For example, knowing that an agency possesses a particular document, coupled with knowledge that the document could originate from only one source, might disclose a confidential source resulting in the effective loss of important information. Another example could involve a person being able to confirm, through an FOI request refusing access to information about a telephone intercept, that an agency has a current telecommunications interception warrant in connection with a specific telephone service. This would be sufficient warning to a suspect who could modify their behaviour and possibly undermine an investigation into serious criminal activity.

3.182 Section 25(2) allows an agency or minister to give an FOI applicant a notice in writing that neither confirms nor denies the existence of a document but instead tells the applicant that, if it existed, such a document would be exempt under ss 33, 37(1), 45A(1), 45A(2) or 45A(3).

3.183 Section 25 is not framed as an ‘exception’^[105] or an ‘exemption’.^[106] It operates in relation to the FOI Act as a whole to protect, in a particular and exceptional way, certain information ‘that the Parliament has specifically identified as meriting protection’.^[107]

3.184 The agency or minister does not have to search for the requested document because a decision as to whether s 25 applies can be made based on the form of the request.^[108] Section 25(2) requires only an assessment of whether a document of the kind requested is, or would be, an exempt document under ss 33 (documents affecting national security, defence or international relations), 37(1) (documents affecting enforcement of law and protection of public safety) or 45A (Parliamentary Budget Office documents).^[109]

3.185 In making a decision, the decision-maker must first turn their mind to whether the requested document is of such a kind that it would be an exempt document under ss 33, 37(1) or 45A. A decision-maker must then think about the kind of document that would fall within the scope of the request.^[110]

3.186 Subsection 25(2) does not require the agency or minister to determine that the requested document, if it does exist, would be exempt under ss 33, 37(1) or 45A.^[111] Nor does the agency or minister have to consider whether there are, in fact, documents which are exempt under ss 33, 37(1) or 45A.^[112] It is enough that a response confirming or denying the existence of the requested documents would itself be exempt under ss 33, 37(1) or 45A.^[113]

3.187 Agencies and ministers should only use s 25 if they conclude that the notional document referred to in s 25(1) would genuinely give rise to the relevant exemption applying (on the basis that if the notional document referred to in s 25(1) is exempt then the underlying document to which it relates would also be exempt). For the purposes of an IC review, a notice under s 25 is deemed to be notice of a decision to refuse access on the grounds that the document sought is exempt under ss 33, 37(1) or 45A as the case may be (s 25(2)).

3.188 Circumstances may arise where a notice under s 25(2) is given after the expiry of the statutory timeframe for notifying the FOI applicant of a decision. When a notice is given under s 25 of the FOI Act, s 25(3)(b) operates to deem the making of a decision to refuse to grant access to the requested document because the document would, if it existed, be an exempt document by virtue of s 33, 37(1) or s 45A of the FOI Act. Such a decision does not indicate, expressly or by implication, whether or not such a document exists. The statutory context in which such a decision arises indicates that no searches have been undertaken. In contrast, a deemed decision under s 15AC(3), being a refusal to give access to a document, may be taken to indicate that such a document exists or does not exist, and therefore giv[ing] information as to the existence or non-existence of [the requested] document’ for the purposes of s 25(1). The statutory context suggests that in circumstances where s 15AC(3) has operated to deem a decision to refuse access to the document, and where subsequently the agency invokes s 25 in a valid way (noting that no timeframe is stipulated for the issuing of a s 25 notice) the resulting decision under s 25(3)(b) subsumes the deemed decision under s 15AC(3). Therefore, if the FOI applicant applies for IC review, the IC reviewable decision is the decision made under s 25(3)(b).^[114] This interpretation is consistent with the Parliamentary intention and the express purpose and operation of s 25(1).^[115]

3.189 When a decision is made to refuse access to a document in accordance with a request, agencies and ministers should be careful not to inadvertently disclose in its reasons for decision the existence of a document where that disclosure would reveal exempt matter (s 26(2)).^[116] The other requirements of a notice under s 26 still apply (see [ 3.281 ]—[3.300] below).

3.190 As noted above, s 26(2) provides that a notice under s 26 is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document. As a result, s 26(2) ensures that any notice of a decision to refuse access does not contain information that is of such a nature that the s 26 notice itself would become an exempt document. Importantly, s 26(2) is not limited in its application to ss 33, s 33A and s 37(1) as s 25 is.^[117] Any matter that is exempt is not required to be included in a s 26 notice of reasons.^[118]

3.191 An example where s 26(2) may apply includes where confirming the existence or non-existence of documents relating to a third party would of itself unreasonably reveal personal or business information about that third party

Refusing access when a practical refusal reason exists

3.192 An agency or minister may refuse an FOI request if satisfied that a ‘practical refusal reason’ exists. There are of 2 types of practical refusal:

• an FOI request that does not sufficiently identify the requested documents (s 24AA(1)(b))
• the resource impact of processing the FOI request would be substantial and unreasonable (s 24AA(1)(a)).

In both cases, the agency or minister must first follow a ‘request consultation process’ before refusing the request. Further information about the request consultation process can be found at [3.223]—[3.234].

3.193 The requirement for an agency or minister to be ‘satisfied’ for the purposes of s 24(1) means that not only must there be a mathematical calculation as to the hours involved in processing the FOI request, but also that the decision-maker genuinely believes that the work involved in processing the request would substantially and unreasonably divert the agency’s resources from its other operations (or unreasonably interfere with the performance of a minister’s functions).^[119] This means that the decision-maker must feel an actual persuasion that the relevant practical refusal reason exists before refusing the FOI request.

Request does not sufficiently identify documents

3.194 One formal requirement for an FOI request is that the FOI request must provide ‘such information as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify’ the document that is requested (s 15(2)(b)). This differs from other formal requirements, in that a failure to comply with this requirement is classified by the FOI Act as a ‘practical refusal reason’ for which a request consultation process is required.

3.195 An agency or minister should not wait until the practical refusal stage to help an FOI applicant clarify their FOI request.^[120] The following considerations should also be borne in mind before a request consultation process is commenced:

• An FOI request can be described quite broadly and must be read fairly by an agency or minister, being mindful not to take a narrow or pedantic approach to its construction.^[121]
• An FOI applicant may not know exactly what documents exist and may describe a class of documents, for example, all documents relating to a particular person or subject matter; all documents of a specified class that contain information of a particular kind; or all documents held in a particular place relating to a subject or person. Where the FOI applicant has requested a class of documents it may be useful for the agency or minister to explain to the applicant the information that is contained in those documents because this may assist them narrow the scope of their FOI request to a specific set of documents, resulting in less time spent processing irrelevant matter.
• Although a request under the FOI Act must be for ‘documents’ rather than ‘information’, an FOI request may be phrased with reference to the information that a document contains. This may be an effective and concise way for an FOI applicant to identify documents.
• An FOI request does not need to quote a file or folio number.

3.196 The ‘Note’ to s 15(3) makes it clear that an agency or minister may refuse to deal with an FOI request that does not meet the formal requirements in s 15(2) (in this case, the identification requirements in s 15(2)(b)) only if satisfied that a practical refusal reason exists after undertaking a request consultation process. Failure to satisfy s 15(2)(b) is a practical refusal ground in s 24AA(1)(b). As a result, agencies cannot refuse to deal with an FOI request on the basis that it is invalid because it does not meet the identification requirements in s 15(2)(b) – they must undertake a request consultation process under s 24AB before doing refusing the access sought.^[122]

Resource impact of processing a request would be substantial and unreasonable

3.197 A ‘practical refusal reason’ exists if:

• in the case of an agency — the work involved in processing the FOI request would substantially and unreasonably divert the resources of the agency from its other operations (s 24AA(1)(a)(i))
• in the case of a minister — the work involved in processing the request would substantially and unreasonably interfere with the performance of the minister’s functions (s 24AA(1)(a)(ii)).

3.198 An important similarity in both tests (for agencies and for ministers) is that they require consideration of whether processing an FOI request would have both a ‘substantial’ and an ‘unreasonable’ effect.

3.199 Another similarity between the 2 tests is that the FOI Act specifies the same non-exhaustive list of matters that must be considered, as well as matters that cannot be considered. An important textual difference between the tests is that for agencies it is whether a request would divert an agency’s resources from its other operations whereas for ministers it is whether a request would interfere with the performance of the Minister’s functions.^[123] This means that different considerations may arise in applying the tests.

3.200 In deciding whether a practical refusal reason exists, an agency or minister must have regard to the resources required to perform the following activities specified in s 24AA(2):

• identifying, locating or collating documents within the filing system of the agency or office of the minister
• examining the documents
• deciding whether to grant, refuse or defer access
• consulting with other parties^[124]
• redacting exempt material from the documents
• making copies of documents
• notifying an interim or final decision to the applicant.

3.201 Other matters that may be relevant in deciding whether a practical refusal reason exists include:^[125]

• the staffing resources available to an agency or minister for FOI processing
• whether processing the request requires the specialist attention of a minister or senior officer, or can only be undertaken by one or more specialist officers in an agency who have competing responsibilities
• the impact that processing a request may have on other work in an agency or minister’s office, including FOI processing
• whether the FOI applicant has cooperated in framing a request to reduce the processing workload
• whether there is a significant public interest in the documents requested
• other steps taken by an agency or minister to publish information of the kind requested by the applicant
• as to a request to a minister — other responsibilities of the minister and demands on the minister’s time, and whether it is open to the minister to obtain assistance from an agency in processing the request.

3.202 The FOI Act also specifies matters that an agency or minister must not have regard to in deciding if a practical refusal reason exists:

• any reasons that the FOI applicant gives for requesting access
• the agency’s or minister’s belief as to the FOI applicant’s reasons for requesting access
• any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind (s 24AA(3)).

3.203 Not all of the matters identified in the paragraphs above will be relevant in all cases in which a practical refusal decision is being considered. As noted in the IC review decision of Chris Drake and Australian Transaction Reports and Analysis Centre,^[126] the need to consult affected third parties under ss 27 and 27A will not arise if the agency or minister has already decided that a document, or part of a document, is exempt from disclosure.^[127] As a result, in such cases it will not be appropriate to include the time that it would take to consult third parties when calculating the resources needed to process an FOI request for the purpose of deciding whether a practical refusal reason exists.^[128]

3.204 Whether consultation is needed will depend on the information contained in the requested documents. Where the third-party information is limited and generalised it may be that staff with knowledge of the subject matter can adequately assess whether an exemption applies from reviewing the documents (without third party input).^[129]

3.205 The evident purpose of the practical refusal ground is to ensure that the capacity of agencies and ministers to discharge their usual functions is not undermined by processing FOI requests that are unreasonably large or complex. On the other hand, it is implicit in the objects of the FOI Act that agencies and ministers must ensure appropriate resources are allocated to deal with FOI requests. This may include assigning additional temporary resources to handle an increase in the number or complexity of requests, or to overcome inadequate administrative procedures. Poor record keeping or inefficient filing systems will not of themselves be grounds for a claim that processing an FOI request would involve a substantial and unreasonable diversion of resources.^[130] Similarly, although a broadly worded request is more likely to constitute an unreasonable diversion of resources than a request that is narrowly focused,^[131] the fact that a large number of documents are within the scope of a request may not be determinative if the documents can be easily identified, collated and assessed.

‘Substantially’

3.206 The first element to consider when deciding whether a practical refusal reason exists is whether the work involved in processing the FOI request would ‘substantially’ divert the resources of agency from its other operations or ‘substantially’ interfere with the performance of a minister’s functions.

3.207 The word ‘substantial’ is not defined in the FOI Act and therefore should bear its ordinary meaning ‘of ample or considerable amount, quantity, size, etc’.^[132]

3.208 Whether a practical refusal reason exists will be a question of fact in the individual case. Bearing in mind the range of matters that must and can be considered (see [3.200]—[3.202]), it is not possible to specify an indicative number of hours of processing time that would be ‘substantial’ for the purpose of a practical refusal reason. Agencies should not adopt a ‘ceiling’ in relation to processing time. For example, deciding that a practical refusal reason exists if the estimated processing time exceeds 40 hours.^[133] Rather, each FOI request should be assessed on its own merits and the findings in individual ART and IC review decisions which discuss estimated processing times should be viewed in that light.^[134]

3.209 An estimate of processing time is only one consideration to be taken into account when deciding whether a practical refusal reason exists.^[135] It is recommended that agencies and ministers examine a sample of the documents to assess the complexity of the material to determine whether the work involved in processing the request would constitute a substantial and unreasonable diversion of resources from the agency’s other operations or would substantially and unreasonably interfere with the performance of a minister’s functions. The sample needs to be large enough for it to be representative of the documents within the scope of the request.^[136] Previous guidance has been to the effect that a representative sample of between 10 to 15% of the documents^[137] is appropriate for the purposes of calculating processing time when deciding whether a practical refusal reason exists.^[138] However a representative sample may be smaller than this in certain circumstances, for example where the number of documents within scope of the request is very large and a 10% sample may not be practicable.^[139] A person with appropriate knowledge or expertise should assess the sample, looking at each document as if they were making a decision on access, including by indicating the number of documents that could be released in an edited form.^[140] The assessment of the sample will provide an indication of the complexity of the potential decision, that is, the number of exemptions required, the topic and content of the documents, the number of consultations required, and the effort required to contact third parties based on available contact details.^[141]

3.210 It is nevertheless expected that an agency or minister will provide a breakdown of the time estimated for each stage in processing an FOI request. As discussed in Part 4 of the Guidelines, a commonly used tool for estimating processing time is a ‘charges calculator’. Some versions of charges calculators contain a number of predetermined parameters based on assumptions as to how long an FOI request should take to process. However, agencies should interpret the information used in charges calculators within the context of their own agency — how long does it usually take to search for documents given the systems and storage options used within the agency? Agencies should be mindful that the use of a ‘charges calculator’ with these predetermined parameters only provides a rough estimate of how long FOI decision-making will take and is not suitable for estimating the processing time for the purposes of a practical refusal decision.^[142]

3.211 Agencies and ministers should also take care to ensure estimates of the number of documents within the scope of the request are accurate and that their calculations are correct. Agencies and ministers need to ensure that their estimates of processing time reflect the actual processing time, based on the actual documents within scope of the request.^[143] Agencies and ministers should also keep records of the searches conducted so they are able to verify that their estimate of the number of documents is correct (in their statement of reasons and, when required, on internal and IC review).

‘Unreasonably’

3.212 As well as specifying that the work involved in processing an FOI request must be substantial, s 24AA(1) requires the work involved in processing the request to either unreasonably divert an agency’s resources from its other operations, or to unreasonably interfere with the performance of a minister’s functions, for a practical refusal reason to exist.

3.213 An agency or minister’s decision to rely on s 24 to refuse access to documents for a practical refusal reason is discretionary. In considering whether the work involved in processing a request would involve an unreasonable diversion of resources, agencies and ministers need to balance the objects of the FOI Act, which are to make documents and information available to the public so there can be increased public participation leading to better-informed decision-making, and increased scrutiny and review of the government’s activities, against the public interest in ensuring that government functions effectively and efficiently.^[144]

3.214 There may be circumstances where processing an FOI request would have a substantial effect on the agency or minister, but that effect may not necessarily be unreasonable in the circumstances. For example, an agency that is particularly large may not necessarily find the processing of an FOI request to be unreasonable, even though processing the request would have a substantial effect on the agency. Such agencies are likely to have dedicated resources to ensure they can appropriately handle requests and thereby reduce the impact of processing the request on other business areas of the agency through the establishment of a permanent FOI team, as well as by assigning additional temporary resources to handle peaks in the number or complexity of FOI requests.^[145]

3.215 In Farrell; Chief Executive Officer, Services Australia and (Freedom of information),^[146] the AAT did not accept that the work involved in processing an FOI request would substantially and unreasonably divert Services Australia’s resources from its other operations. While the AAT described the resources involved in processing the request as ‘not insignificant’, the Tribunal was satisfied that it was well within the capacity of the agency to process the request given its size and the resources available to it.

3.216 Similarly, where there is significant public interest value in the disclosure of the information in the documents, or where an individual has been significantly personally affected by government decisions, the agency or minister may find it difficult to justify that a practical refusal reason exists on the basis that processing the request would have an unreasonable effect on the agency even where the FOI processing burden is substantial.^[147]

Multiple requests

3.217 In deciding whether a practical refusal reason exists, 2 or more FOI requests may be treated as a single request if the agency or minister is satisfied that:

• the requests relate to the same document or documents (s 24(2)(a))
• the subject matter is substantially the same for the requests (s 24(2)(b)).

3.218 The most common circumstance in which FOI requests may be combined under s 24(2) is likely to be multiple requests from a single applicant. However, s 24(2) can also apply to 2 or more requests from different applicants. An example is where different applicants made more than 100 requests for documents relating to individual incidents reported on a single spread sheet published on an agency’s disclosure log.^[148]

3.219 Multiple requests can only be combined as a single request under s 24(2) if there is a clear connection between the subject matter of the requested documents. Straightforward examples are where one request is for folios 1–100 of a file, and another request for folios 101–200 on the same file; or where 3 requests relate to 3 different chapters of one report.

3.220 When a decision on the FOI request is not made within the statutory processing period, the agency or minister is deemed to have made a decision refusing access. Once there is a deemed refusal decision, it is not open to an agency or minister to combine an FOI request with another under s 24(2).^[149]

3.221 Where multiple FOI requests from different applicants are being treated as a single request, an agency or minister must still follow the request consultation process with each applicant, unless an applicant has agreed to another arrangement. An agency’s or minister’s power to treat 2 or more requests as a single request for the purpose of making a practical refusal reason decision does not override the legally enforceable right of each applicant under s 11 to obtain access to documents in accordance with the FOI Act.^[150] Consequently, agencies and ministers are obliged to deal individually with each request that is not withdrawn or revised before the end of the consultation period.

3.222 If an FOI applicant requests access to multiple documents, an agency or minister can choose to undertake a practical refusal consultation process in relation to some but not all of the documents, while still processing the remainder of the request.^[151] But the agency or minister cannot undertake a consultation process in relation to all the requested documents and then, if the applicant does not withdraw or revise the request, unilaterally decide to give access under the FOI Act to some of the requested documents and refuse access to others for a practical refusal reason. It is open to an agency to give administrative access to a document that was part of a request refused for a practical refusal reason, but that decision is not a decision under the FOI Act and FOI review rights do not apply. ^[152]

Request consultation process

3.223 Where an agency or minister considers that a practical refusal may reason exist, they must undertake a request consultation process with the FOI applicant before making a decision to refuse the request (s 24AB).

3.224 Before commencing a formal request consultation process, agencies and ministers’ offices are encouraged to discuss the request with the FOI applicant. This is often a more efficient way of obtaining further information to help the FOI applicant refine a request that is too large or vague. However, if the FOI applicant cannot be contacted promptly, or the discussion does not elicit information that allows relevant documents to be identified, the request consultation process should be commenced.

3.225 The agency or minister must give the applicant a written notice that states:

• an intention to refuse access to a document in accordance with a request
• the practical refusal reason
• the name and contact details of an officer with whom the applicant may consult during the process, and details of how the applicant may contact them^[153]
• that the consultation period during which the applicant may consult the contact person is 14 days after the day the applicant is given the notice (s 24AB(2)).

3.226 Agencies should also ensure that all the relevant steps specified in s 24AB are followed when undertaking a request consultation process, including by ensuring that the contact person, as far as possible, is available for the entire consultation period specified in the request consultation notice (s 24AB(2)(e)), and by ensuring that the contact person is aware of their obligation to take all reasonable steps to assist the applicant revise their request so that a practical refusal reason no longer exists (s 24AB(3)). Failure to adhere to the requirements in s 24AB amounts to a procedural defect and may invalidate the practical refusal decision.^[154] An FOI request should not be treated as withdrawn when the FOI applicant has responded to the request consultation notice in one of the ways outlined in s 24AB(6). That is, where the applicant revises their request or declines to revise their request. A request should only be treated as withdrawn when the applicant explicitly states this, or the applicant fails to consult the contact person or provide a response to the agency or minister during the consultation period (s 24AB(7)).

3.227 An agency or minister may wish to state how an FOI applicant is to consult the contact person, for example, by telephone or email. However, agencies should adopt a flexible approach. The consultation period may be extended with agreement between the contact officer and applicant, in which case the contact officer must give the applicant written notice of the extension (s 24AB(5)). The request consultation process period is disregarded in calculating the time for making a decision on the request (s 24AB(8)). That is, the request consultation process ‘stops the clock’.

3.228 Agencies and ministers are only obliged to undertake a request consultation process once for any particular request (s 24AB(9)).However the fact that an agency or minister has received a revised request does not absolve them of the obligation to undertake ‘reasonable steps’ for the purposes of s 24AB(3) of the FOI Act. As has been discussed in IC review decisions, where an applicant has made a revised request that does not remove a practical refusal reason, the agency may be required to take further steps to satisfy the ‘reasonable steps’ obligation.^[155]

3.229 Where an access refusal decision is deemed to have been made, the agency or minister is still able to process the request and provide a statement of reasons. If a practical refusal reason arises during the processing of the request, but after the decision is deemed to have been made, the agency or minister still needs to follow the consultation process in s 24AB before providing a statement of reasons based on a practical refusal reason.^[156] However, the agency or minister cannot use ss 24AB(7) and 24AB(8) of the FOI Act to treat the request as withdrawn if it receives no response from the applicant to its request consultation notice (s 24AB(7)), or to extend the processing period as a result of the request consultation process (s 24AB(8)), because it has already exceeded the statutory timeframe for processing the request. In some instances, agencies have been incorrectly telling FOI applicants in the request consultation notice, where the decision is deemed, that a failure to respond to the agency will be taken as a withdrawal of the FOI request by the applicant.

Assisting the applicant during a request consultation process

3.230 If an applicant contacts a contact officer during the consultation period, the contact officer must take reasonable steps to help them revise their request so the practical refusal reason no longer exists (s 24AB(3)). For example, a contact officer could provide a breakdown of the time estimated for each step of the process, explain the difficulties the agency would have dealing with the request and suggest what would be a reasonable request in the circumstances.^[157]

3.231 What constitutes ‘reasonable steps’ to assist the applicant revise their request to remove the practical refusal reason will depend on the factual circumstances. It may include providing a date range to reduce the number of documents within scope, suggesting key words that can be used to undertake electronic searches and pointing to information already publicly available. However, where an applicant revises their request in accordance with suggestions made by the contact officer but the estimate of processing time remains unchanged it may be that the contact person has not taken reasonable steps as required by s 24AB(3).^[158] Similarly, where an applicant adopts the agency’s suggestions regarding the scope of their request but the agency continues to maintain that processing the request would involve a substantial and unreasonable diversion of its resources, it may be that the agency has not given the reasonable assistance required to be given under s 15(3) and the request consultation process is invalid.^[159]

Consultation outcome

3.232 Before the end of the consultation period the applicant must by written notice to the agency or minister:

• withdraw the request
• revise the request or
• indicate that they do not wish to revise the request (s 24AB(6)).

3.233 The request^[160] is taken to have been withdrawn if the applicant does not consult the contact person during the consultation period to discuss revising the scope or provide the required written notice during the consultation period (s 24AB(7)). This includes where a verbal agreement is reached with the applicant to revise the request but the applicant does not do so in writing. An agency may choose to transcribe a verbal agreement as to revised scope and send it to the applicant, asking that the applicant confirm in writing that what is written accurately sets out their revised request. The agency may then treat that confirmation as compliance with s 24AB(6). However, if the applicant has taken steps to consult the contact person about revising scope and the agency or minister does not respond, the request is not taken to be withdrawn.

3.234 Where an agency has treated multiple requests as a single request under s 24(2), (see [ 3.217 ]—[3.222]), they must deal individually with any requests that have not been withdrawn or revised at the end of the consultation period. This could include refusing any or all of these requests because a practical refusal reason exists.^[161]

Information stored in electronic form

3.235 Section 17 requires an agency to produce a written document of information that is stored electronically and not in a discrete written form, if it does not appear from the request that the applicant wishes to be provided with a computer tape or disk on which the information is recorded.^[162] Examples include a transcript of a sound recording, a written compilation of information held across various agency databases, or the production of a statistical report from an agency’s dataset. The obligation to produce a written document arises if:

• the agency could produce a written document containing the information by using a ‘computer or other equipment that is ordinarily available’ to the agency for retrieving or collating stored information (s 17(1)(c)(i)), or making a transcript from a sound recording (s 17(1)(c)(ii)) and
• producing a written document would not substantially and unreasonably divert the resources of the agency from its other operations (s 17(2)).

If those conditions are met, the FOI Act applies as if the applicant had requested access to the written document and it was already in the agency’s possession.

3.236 The reference in s 17 to information recorded on a ‘computer tape or disk’ should be taken to include information recorded in an email or on electronic storage media.

3.237 In Collection Point Pty Ltd v Commissioner of Taxation the Full Federal Court held that the 2 conditions specified in [3.235] are distinct and to be applied sequentially.^[163] That is, a computer may not be ordinarily available to an agency even though it could be obtained without an unreasonable diversion of agency resources and, conversely, an agency may encounter an unreasonable diversion of resources to produce a written document using a computer that is ordinarily available.

3.238 The Federal Court further held that the reference in s 17(1)(c)(i) to a ‘computer or other equipment that is ordinarily available’ means ‘a functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available … [T]he computer or other equipment … must be capable of functioning independently to collate or retrieve stored information and to produce the requested document.’^[164] This will be a question of fact in the individual case, and may require consideration of ‘the agency’s ordinary or usual conduct and operations’.^[165] For example, new software may be ordinarily available to an agency that routinely commissions or otherwise obtains such software, but not to an agency that does not routinely do such things. Similarly, where additional hardware and/or software adaption or creation is required to produce a document that is intelligible, such work may go beyond what s 17 obliges.^[166]

3.239 Applying that test, the Full Federal Court in Collection Point held that the Australian Taxation Office (ATO) did not ordinarily have the required software to satisfy the applicant’s request to produce a document containing consolidated details of persons listed in 2 unclaimed money registers maintained electronically by the ATO. A new computer program would have to be produced by the ATO to transfer the information from the database into a discrete written format. Accordingly, as new software was necessary to produce the requested document, the ATO was not able to do so by the use of a computer that was ordinarily available to it, and therefore the obligation under s 17(1) did not arise.^[167]

3.240 Having regard to the current strong policy emphasis on digitisation of Australian Government records, agencies are encouraged to develop guidelines and procedures for the efficient storage and retrieval of information held on servers, hard disks, portable drives and mobile devices. Agencies are encouraged to consult applicants about administrative release on a flexible and agreed basis of information extracted from databases.

3.241 As noted at [3.235] above, an agency is not required to produce a written document using a computer or other equipment ordinarily available if doing so would substantially and unreasonably divert the agency’s resources from its other operations. This means that the agency must engage in a request consultation process under s 24AB if it intends to refuse the request for a practical refusal reason.  However, before taking this step, agencies may choose to engage with the applicant informally, to clarify requests that will require processing under s 17 and suggest ways in which the request can be revised so that it does not substantially and unreasonably divert the agency’s resources from its other operations.

3.242 The provisions set out at s 17 of the Act apply only to agencies. Ministers and their offices must, however, have regard to s 20 (discussed above at [3.319]—[3.323]) when considering the form of access to be given.

Timeframe for notifying a decision

Default period for requests for access

3.243 The obligation on an agency or minister to notify an applicant that a request has been received, and to make and notify a decision on the request within the statutory timeframe, commences on receipt of a request that meets the formal requirements in ss 15(2) and (2A) (see [3.33]). These Guidelines refer to this period as the processing period.

3.244 An agency or minister must, as soon as practicable, and within 14 days of receiving an FOI request, take all reasonable steps to enable the applicant to be notified that the request has been received (s 15(5)(a)).^[168] This requirement will be met by sending a notice of receipt to the contact address provided by the applicant. The 14-day timeframe commences on the day after the request is received by or on behalf of an agency or minister’s office (s 15(5)(a)).

3.245 An agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). The 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2) and (2A). Table 2 below sets out the time of receipt.

3.246 An agency should act promptly to assist an applicant whose FOI request does not meet the formal requirements in the FOI Act, in keeping with its obligations under s 15(3). If the request does not satisfy the requirement in s 15(2)(b) (identification of documents) the request consultation process in s 24AB needs to be followed.

3.247 The processing period refers to calendar days, not business (or working) days. This will include any public holidays,^[169] or agency shutdown periods, that fall within the processing period.^[170] If the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe for notifying the decision will expire on the first business day following that day.^[171]

3.248 The 30-day processing period does not include:

• the time that an applicant may take in a request consultation process to make a revised request or indicate in writing that they do not wish to revise the request (s 24AB(8))
• the time elapsing between an applicant being notified that a charge is payable and either the applicant paying the charge (or a deposit on account of the charge) or the agency varying the decision that a charge is payable (s 31).

In summary, the time spent on those matters is to be disregarded in calculating the processing period.

3.249 The OAIC has developed a calculator to assist FOI practitioners calculate the period during which they are required to process FOI requests.^[172] The calculator takes into account all the factors that may change the default processing period in s 15(5)(b) of the FOI Act.

3.250 In some instances, agencies have incorrectly altered the statutory processing timeframe to commence from the date the scope of the FOI request is clarified with the FOI applicant. Where an agency or minister receives a request that meets the formal requirements of s 15(2), the statutory processing timeframe commences from the next calendar day, regardless of any steps the agency or minister may wish to take to clarify the precise scope of a request with an applicant.

3.251 An email or similar electronic communication is received at the time it is capable of being retrieved by the addressee.^[174] This is assumed to be the time it reaches the addressee's nominated electronic address^[175] (this day could be a weekend or public holiday). This rule may be varied by a voluntary and informed agreement between the sender (the applicant) and the addressee (the agency or minister).

Extending the decision notification period

3.252 The FOI Act requires agencies and ministers to comply with a 30-day statutory timeframe for processing FOI requests (s 15(5)(b)). However in some limited circumstances the statutory timeframe may be extended, for example, with the agreement of the applicant or with the approval of the Information Commissioner. The extension of time provisions are set out in Table 3 below.^[176]

3.253 Agencies and ministers are encouraged to build into their FOI process an early and quick assessment of whether an extension of time may be required, to ensure that decisions are made within the statutory processing period.

3.254 The extension of time provisions outlined above only apply to the processing time available to an agency or minister in deciding an FOI request. There are no extension of time provisions available under the FOI Act for alternative purposes, including to meet a timeframe stipulated by the Information Commissioner in a s 55K decision. An agency or minister must comply with a decision of the Information Commissioner, including any timeframes stipulated in the IC review decision under s 55K (s 55N). If an agency or minister fails to comply with s 55N, an application may be made by the Information Commissioner or the IC review applicant to the Federal Court of Australia for an order directing the principal officer of an agency or minister to comply. Further information about compliance with the Information Commissioner’s decision is available in Part 10 of these Guidelines.

Extension of time with agreement under s 15AA

3.255 An agency or minister may extend the timeframe for dealing with a request by a period of no more than 30 days if:

• the applicant agrees to the extension in writing and
• the agency or minister gives written notice of the extension to the Information Commissioner as soon as practicable after the agreement is made. It is desirable that a copy of the applicant’s written agreement is provided to the OAIC with the written notice.

3.256 To validly extend the processing period under s 15AA agencies and ministers must:

• seek the FOI applicant’s agreement to extend the time to make a decision on the request (this must be done before the processing period has expired)^[177]
• receive the applicant’s written agreement to the extension of time^[178]
• send the applicant’s written agreement to the OAIC.^[179]

3.257 The agency or minister can also ask the FOI applicant for further extensions under s 15AA, as long as the combined length of all agreed extensions does not exceed 30 days.

3.258 A s 15AA agreement cannot be made when an FOI request has become a deemed refusal under s 15AC.

Applying to the Information Commissioner for an extension of time under s 15AB

3.259 An agency or minister applying to the Information Commissioner for an extension of time under s 15AB should explain why the applicant’s FOI request is complex or voluminous, including details about:

• the scope of the request and the range of documents covered
• the work already undertaken on the request
• any consultation with the applicant concerning length of time
• whether other agencies or parties have an interest in the request
• measures to be taken by the agency or minister to ensure a decision is made within the extended time and to keep the applicant informed about progress of the request.^[180]

3.260 An application for an extension of time under s 15AB may only be made in relation to a specific FOI request. The complexity or volume described in a s 15AB application relates to the particular request for which an extension of time is sought. It does not relate to the complexity and volume of the aggregated FOI caseload of the agency or minister. The discretion in s 15AB cannot be exercised to provide a ‘blanket’ extension of time to a cohort of cases; each request needs to be considered on its individual merits.

3.261 In considering an application to extend the processing time under s 15AB, the Information Commissioner may share the agency’s or minister’s submission with the FOI applicant and any other affected third parties.

3.262 Where an agency or minister intends to apply for an extension of the timeframe for processing the applicant’s FOI request under s 15AB, the application to the Information Commissioner must be made before the expiry of the processing period referred to in s 15(5)(b). The processing period under s 15AB can be extended even if the Information Commissioner decides to grant the application after the date in which the request was originally due to expire, as long as the application was made within the period referred to in s15(5)(b).

3.263 Staff absences due to public holidays or agency shutdown periods may be relevant to whether an extension should be granted if the particular staff members have skills or knowledge that may be required to process the request in the normal statutory timeframe. However a lack of staff because of inadequate allocation of resources to FOI processing or failure to assign additional temporary resources to FOI processing at peak times will not normally justify an extension in the absence of other extenuating circumstances.

3.264 An extension of time under s 15AB cannot be granted after an extension of time under s 15AC(5) has been granted.

Deemed decisions

3.265 A ‘deemed refusal’ decision occurs when the statutory time for making a decision on an FOI request has expired and the FOI applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC(3)).

3.266 A notice of the deemed decision under s 26 is taken to have been given on the last day of the decision period (s 15AC(3)(b)).

3.267 The consequence of a deemed refusal is that the FOI applicant may apply for IC review (s 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b)). In addition, once the statutory time to make a decision has expired and there is a deemed refusal decision, the agency or minister cannot impose a charge for access (see Part 4 of these Guidelines). It is not open to an agency or minister to conduct an internal review of a deemed decision.

3.268 Processing timeframes should be clearly communicated at all stages of an FOI request, including on receipt of the request and when the timeframe has changed (for example, due to consultation or an extension of time). In some cases, FOI applicants will not be aware that a deemed access refusal decision has been made and that they can apply for IC review of the refusal. It is good practice for agencies and ministers to include information in their s 15(5)(a) acknowledgement letters that advises FOI applicants about their right to seek IC review if their FOI request is not processed within the statutory timeframe. ^[181]

3.269 Agencies and ministers should consider notifying FOI applicants if their FOI request has become deemed so they can apply for IC review within the statutory timeframe. If an FOI applicant applies for internal review of a deemed access refusal, agencies should advise them of the IC review process. Further, agencies should advise FOI applicants that although the agency is deemed to have refused their request and that the applicant may apply for IC review, they will continue to process the request and provide a statement of reasons.

3.270 Where an access refusal decision is deemed to have been made, the agency or minister is still able to process the request and provide a statement of reasons. If the applicant applies for IC review, the decision under review by the Information Commissioner will be the deemed access refusal decision. The statement of reasons will be taken as submissions in the IC review. Alternatively, the agency may choose to apply to the OAIC for an extension of time under s 15AC(4) to make a decision on the request.

3.271 As noted at [3.229], where a request consultation process is initiated after the expiry of the statutory timeframe, the FOI applicant is not subject to the requirements of s 24AB(6), or to the legal consequences of not responding as outlined in s 24AB(7), which provides that the applicant is taken to have withdrawn their FOI request if they do not respond in one of the ways identified in s 24AB(6).

Information Commissioner’s power to grant an extension of time following a deemed decision (s 15AC)

3.272 Where there has been a deemed decision, the decision-maker may apply to the Information Commissioner in writing for further time to deal with the request (s 15AC(4)). The Information Commissioner may allow further time for the decision-maker to deal with the request (s 15AC(5))). If the Information Commissioner allows further time to deal with the request under s 15AC(5), it is not open to the agency to further extend the processing time under s 15(6) (to undertake third party consultation). Any application under s 15AC(4) should include the time required to undertake any consultation with affected third parties.

3.273 In considering what further time may be appropriate, the Information Commissioner will take into account the details in the agency’s application, which should address the scope and complexity of the request, the reasons for delay in making an initial decision, the extension sought, the estimated total processing time, and whether discussions with the applicant about the delay and extension application have occurred. The Information Commissioner will also consider the total elapsed processing time and the desirability of the decision being decided by the agency or minister rather than through IC review.

3.274 There is no obligation on the Information Commissioner to seek the views of the applicant about an application for an extension of time under s 15AC following a deemed decision.^[182] However, the Information Commissioner is not precluded from seeking the views of the applicant where it is a relevant consideration in deciding whether to grant an application for an extension of time.

3.275 In allowing further time the Information Commissioner may impose conditions (s 15AC(6)). For example, the Commissioner may require the decision-maker to:

• notify the applicant of the further time allowed
• provide regular progress reports to the Information Commissioner and the applicant
• provide a copy of the notice of decision when made to the Information Commissioner.

3.276 If a decision is made in the further time allowed and any conditions imposed by the Information Commissioner are met, the deemed refusal decision no longer applies and is taken never to have applied (s 15 AC( 7)). However, if this occurs the agency or minister remains unable to impose charges (reg 5(2) of the Freedom of Information (Charges) Regulations 2019).

3.277 If a decision is not made within the extended time, or any imposed conditions are not met, the deemed access refusal decision continues to apply (s 15AC(8)). The Information Commissioner cannot provide further time for the decision-maker to make the decision or comply with the conditions (s 15AC(9)). The FOI applicant can seek IC review of the deemed access refusal (see Part 10 of these Guidelines).

3.278 If a person applies for IC review of a deemed decision and the Information Commissioner allows the decision-maker further time under s 15AC and a decision is made within that further time, that decision is substituted for the deemed decision under review (s 54Y(2)).^[183]

3.279 Alternatively, at any time during an IC review, an agency or minister may substitute a deemed access refusal decision with a decision to favour the FOI applicant by:

• giving access to a document in accordance with the request (s 55G(1)(a)) or
• relieving the IC review applicant from liability to pay a charge (s 55G(1)(b)) (see Part 10 of these Guidelines).

3.280 The agency or minister must notify the Information Commissioner in writing of the substituted decision as soon as practicable, and that substituted decision becomes the decision under review (s 55G(2)) (see Part 10 of these Guidelines).

Statement of reasons

3.281 An agency or minister must give the FOI applicant written notice of the decision that contains reasons and other particulars of the decision (referred to in these Guidelines as a ‘statement of reasons’) if they refuse any aspect of the FOI request or defer access to documents (s 26(1)). Specifically, a statement of reasons must be provided to the FOI applicant for a decision where:

• access to a requested document is refused, including when:
  • a requested document is exempt from release (Part 4 of the FOI Act)
  • the document has not been sufficiently identified in the request (s 15(2))
  • the document does not exist or cannot be found (s 24A)
  • a practical refusal reason exists (s 24)
  • the access provisions do not apply to the document (for example, it is a document to which ss 12 or 13 apply, or the requested document is not a document of an agency or an official document of a minister as defined under s 4(1))
  • access to the requested document is deferred (s 21)
  • access will be given in a different form to that requested by the FOI applicant (s 20)
  • a request to amend or annotate a record is refused (s 51D)
  • any of the above decisions is made on internal review (ss 53A and 54C(4)).

Content of a s 26 statement of reasons

3.282 A statement of reasons is a notice in writing of:

• the decision
• the findings on any material questions of fact
• the evidence or other material on which those findings are based
• the reasons for the decision (including any public interest factors taken into account in deciding to refuse access to a conditionally exempt document)
• where the decision relates to a document of an agency, the name and designation of the person making the decision
• information about the FOI applicant’s rights to make a complaint or seek a review and the procedure for doing so (s 26(1)).

3.283 As outlined above, s 26 requires agencies to include the name and designation of the person who made the decision in their statement of reasons (s 26(1)(b)). Clearly, providing both the given name and family name of a decision-maker satisfies this requirement. However, providing the given name of the decision-maker and their designation may satisfy this requirement if there is sufficient information to allow the FOI applicant to identify the decision-maker and thereby verify that person’s authority to make a decision.^[184] Further information, such as an FOI or case management database reference number or position number, may assist in verifying decision-making authority.

3.284 This requirement exists separately to s 26(2), which provides that a statement of reasons should not include any information that, if it were in a document, would cause that document to be exempt.^[185] Section 26(2) does not enable the requirements outlined in s 26(1) to be disregarded or invalidated.

3.285 There is no specified form for a statement of reasons. A letter to the applicant may be sufficient as long as it contains all the required information. Where the FOI request involves numerous documents or complex issues relating to exemptions, a statement of reasons and a schedule of documents attached to a letter to the FOI applicant may be more appropriate. The OAIC has developed a checklist and a sample notice to assist agencies and ministers with the content of a statement of reasons.^[186]

3.286 Section 26(2) provides that a s 26 notice is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause the document to be exempt (for further information about s 26(2) see [3.189]—[3.191] above).

The decision

3.287 The statement of reasons must set out the decision made in relation to each document (or part of document) and address all relevant legislative provisions. The ARC suggests that decision-makers should quote from the actual legislative provisions rather than paraphrasing to avoid inadvertently changing the meaning.^[187]

3.288 The decision needs to identify clearly the documents considered by the decision-maker for release (without disclosing exempt material if exemptions are claimed). Preparing a schedule of documents is often helpful in the decision-making process. When the decision is made, the schedule (minus any exempt mater considered during the process) can be attached to the statement of reasons.

Findings of fact and the evidence or other material on which they are based

3.289 The notice of decision should make it clear how the decision was reached, based on findings of fact. General points about evidence and findings of fact are set out at [3.127]—[3.131]. The documents that are the subject of an FOI request will often contain evidence that will need to be considered. For example, a decision-maker considering whether to release a document that contains information about Commonwealth-State relations will need to consider whether releasing the document may damage those relations.

3.290 When referring to material or evidence it is important to describe it so it can be easily identified. Merely providing a list of documents that the decision-maker considered is unlikely to be sufficient.^[188] The decision-maker needs to explain how each finding was rationally based on the evidence.

3.291 The statement of reasons should also set out how any conflicting evidence was considered, which evidence was preferred and why.[189] If the decision-maker considered recommendations or reports in making their decision, references to those should also be included.

Relevant and irrelevant considerations

3.292 In considering the evidence to make findings of fact, a decision-maker must examine and weigh all relevant considerations. For many FOI decisions, the FOI Act sets out the relevant considerations. For example, in making a decision about whether a document is exempt because it is subject to legal professional privilege, a decision-maker must consider whether that privilege has been waived (s 42(2)).

3.293 The decision-maker must also ensure they do not take into account any irrelevant considerations. The FOI Act specifies irrelevant considerations in relation to some decisions, including the public interest test that applies to conditionally exempt documents (s 11B(4) — see Part 6 of these Guidelines). Similarly, the FOI applicant’s reason(s) for making a request are also irrelevant in making a practical refusal decision (s 24AA(3)(a)).

The reasons for the decision

3.294 The notice of decision must state the reasons for the decision (s 26(1)(a)). The reasons should show a rational connection between the findings of material fact, the decision-maker’s understanding of the relevant statutory provisions and the decision itself. Where a statutory provision requires an agency to be satisfied that disclosure of a document would result in a substantial adverse effect, it is not sufficient for an agency to simply declare that a substantial adverse effect will occur without any further details or reasons. Similarly, it is not enough for the decision-maker to state that he or she is satisfied that a document or part of a document is exempt. Agencies must provide adequate justification as to why an exemption applies by reference to the provisions in the FOI Act, having regard to these Guidelines. In an IC review, s 55D places the onus on the agency or minister in establishing that its decision in relation to a request or application is justified, or that the Information Commissioner should give a decision adverse to the IC review applicant. Similarly, where an application for review is made to the ART, s 61 places the onus on the agency or minister to establish that the decision is (or is not) justified and that the ART should give a decision adverse to the applicant (see Part 10 of these Guidelines).

3.295 If the decision is to refuse access to a conditionally exempt document, the reasons must include any public interest factors the decision-maker took into account (s 26(1)(aa)). In considering the public interest factors, the decision-maker must weigh factors for and against disclosure to determine whether access would, on balance, be contrary to the public interest (see Part 6 of these Guidelines). Evidence of the harm that may result from release would need to be considered as part of that process.

3.296 When explaining the reasons, the decision-maker should refer to the specific documents requested and set out the reasoning process that led to the decision based on the material findings of fact. They must explain the relevant legislative provisions and, if appropriate, can refer to these Guidelines or IC review, AAT/ART and court decisions in support of their interpretation of the provisions.

3.297 Where a document is released with deletions under s 22, the grounds on which the deletions have been made should be provided, setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based (see [ 3.181 ]—[3.191] above).

3.298 A draft statement of reasons may be prepared by someone other than the decision-maker. However, the decision-maker must carefully consider the draft to ensure that it is satisfactory and that they personally endorse the reasoning and conclusions.

Other required information

3.299 The statement of reasons should also include:

• the name and designation of the decision-maker (where the decision relates to a document of an agency) (s 26(1)(b) and [3.263]). Information about the authorisation should also be included (see [3.111]—[3.117])
• the applicant’s review rights, including how to apply for internal and IC review (see Parts 9 and 10 of these Guidelines)
• the applicant’s right to complain to the Information Commissioner (see Part 11 of these Guidelines).

3.300 The notice of decision should also explain (if applicable) that the document will be published or notified on a disclosure log (see Part 14).

Other notices of decision

3.301 Other provisions of the FOI Act require that notices of particular kinds be given to applicants and third parties. Some of these provisions expressly require the decision-maker to give reasons for the decision under either s 26 of the FOI Act or s 25D of the Acts Interpretation Act 1901. ^[190] If no express requirement of that kind applies, a decision-maker may nevertheless be guided by s 26 in deciding the nature of the information to include in a notice.

3.302 The provisions of the FOI Act that require a notice of decision are:

• to the applicant:
  • a notice that an applicant is liable to pay a charge (s 29(1))
  • a notice of decision to an applicant as to the charge payable, following a submission by the applicant that a charge should be reduced or not imposed (s 29(6)). If the decision is to reject the applicant’s contention in whole or part, the notice must provide a statement of reasons that complies with Acts Interpretation Act s 25D (s 29(8) and (9))
  • a notice of decision to provide access to a document following consultation with the Commonwealth or a State about whether the document would be exempt under s 47B (Commonwealth-State relations) (s 26A(3)(b))
  • a notice of decision to provide access to a document following consultation with a person or organisation about whether the document would be exempt under s 47 or 47G (trade secrets, business information) (s 27(6)(b))
  • a notice of decision to provide access to a document following consultation with a person about whether the document would be exempt under s 47F (personal information) (s 27A(5)(b))
• to a third party:
  • a notice of decision to the Commonwealth or a State that a document about which either was consulted is not exempt under s 47B (Commonwealth-State relations) (ss 26A(3)(a))
  • a notice of decision to a person or organisation that a document about which the person or organisation was consulted is not exempt under s 47 or 47G (trade secrets, business information) (s 27(6)(a))
  • a notice of decision to a person that a document about which the person was consulted is not exempt under s 47F (personal information) (s 27A(5)(a)).

3.303 It is also open to an applicant or third party (in relation to any of the decisions above) to request a statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977.

Giving applicants access to documents

3.304 Where a decision has been made to give an FOI applicant access to a requested document, access should be given as soon as practicable, but only after:

• any charges the applicant is liable to pay are paid (s 11A(1)(b) and reg 11, Freedom of Information (Charges) Regulations 2019) and
• all opportunities a third party may have to seek review of the decision have run out, and the decision stands or is confirmed (ss 26A(4), 27(7) and 27A(6)).

3.305 Where a third party has review rights in relation to only some of the documents falling under the access grant decision, an agency or minister should provide the FOI applicant with access to the remaining documents as soon as practicable. Similarly, if a third party has a review right in relation to multiple documents but seeks review of the decision to release only some of those documents, the agency or minister should release the remaining documents to the FOI applicant as soon as practicable once the third party’s opportunity to seek review has run out.

3.306 Delay in providing access to documents is considered an access refusal decision under s 53A(c) and the applicant may apply for internal review or IC review.

3.307 An agency or minister may choose to add an FOI reference number or page numbers to a document before it is released to the FOI applicant. If an agency does this, it is important that those additions are included in the margins or other clear space in the document, so they do not obscure the text. If an agency or minister chooses to add a watermark (for example, to indicate that the document is being released under the FOI Act) it is important that the watermark does not impact the ability of a reader to read all of the document.

3.308 Section 15(2)(c) requires FOI applicants to provide details of how notices may be sent to them; it does not specify how documents released under the FOI Act may be dispatched.^[191] Although FOI applicants cannot dictate how access is to be provided, if an applicant specifies a postal address (rather than an email address) agencies should do what they can to satisfy the applicant’s request that documents be sent by post.

3.309 Filesharing portals, such as SIGBOX, can be an efficient way of despatching FOI documents, particularly large files. Filesharing portals are more secure than unencrypted email and regular post. However agencies and ministers need to be mindful of the Australian Privacy Principles, in particular, if using file sharing/delivery systems necessitates people providing additional personal information and creating accounts with filesharing providers, or when the method of transmission may increase privacy risks, including the intentional or inadvertent collection of personal information.

Charges

3.310 The applicant must pay all charges before being given access, except where the charge relates to supervisory time for the applicant to inspect documents (reg11(2) of the Freedom of Information (Charges) Regulations 2019). Where a charge was notified, but the decision on the request was not made within the statutory time limit, the charge cannot be imposed (regs 5(2) and 5(3)). More information about charges is in Part 4 of these Guidelines.

Third party review opportunities

3.311 The review rights of a third party depend on the provision under which they were consulted. A third party who was consulted about the release of a document affecting Commonwealth-State relations (s 26A) may seek internal review or IC review of a decision to grant access (ss 53B, 53C, 54A and 54M).

3.312 Similarly, a third party who was invited to make a submission about the release of a document affecting business information (s 27) or documents affecting personal privacy (s 27A) and who made a submission in support of the relevant exemption contention may seek internal review or IC review of a decision to grant access (ss 53B, 53C, 54A and 54M).

3.313 A business entity or person who was invited to make a submission under s 27 or s 27A but did not do so, is neither required to be notified of an access grant decision nor entitled to apply for internal review or IC review of that decision.

3.314 A third party who was not invited to make a submission, but believes they should have been invited under s 27 or s 27A, may complain to the Information Commissioner (s 70 — see Part 11 of these Guidelines).

3.315 ‘Run out’ times are defined in s 4(1), as set out in Table 4 below.

3.316 Agencies and ministers are encouraged to check directly with any affected third parties if the agency or minister has not received notice that a third party intends to apply for internal, IC or AAT review. Noting that the FOI applicant has the legally enforceable right to access the documents they requested when the time to apply for review has run out, the agency or minister should include a date by which the third party should respond and advice that if the affected third party does not respond by that date, the agency or minister will proceed to give the FOI applicant access to the documents on the basis that the affected third party has not applied for internal or IC review. It is suggested that 3 working days is an appropriate timeframe to give the affected third party to respond.

Providing access in stages

3.317 Where the request relates to a large number of documents, it is open to an agency or minister and an FOI applicant to consult and agree on a staged approach to the release of the documents.^[192] A staged approach may also be appropriate if access to some (but not all) documents is to be deferred under s 21 (see [ 3.171 ]—[3.180]). Where an agency or minister agrees with the applicant that the documents at issue are to be released in stages, it is recommended they obtain the appropriate extensions of time under the FOI Act for processing the request. For example, the agency or minister would need to obtain a written agreement from the applicant and to provide written notice of the extension to the Information Commissioner in accordance with s 15AA. If necessary, an agency or minister may also consider applying to the Information Commissioner under s 15AB for an extension of time, providing evidence of the agreement between the parties in its application.

3.318 A staged approach can assist agencies and ministers manage their resources and avoid a practical refusal reason from arising by allowing more time to consider and process the request. For example, the agency or minister may propose to process part of the request by a certain date, and the remainder of the request by a date agreed between the agency or minister and the FOI applicant.

Forms of access

3.319 Subject to limited exceptions, an applicant who requests access to a document in a particular form has a right to be given access in that form (s 20(2)). Available forms of access are:

• providing a copy of the document (the most common form of access)
• giving a reasonable opportunity to inspect the document
• where the document is an article or thing from which sounds or visual images are capable of being reproduced, making arrangements for the person to hear or view those sounds or images
• where words are recorded in a manner capable of being reproduced in the form of sound or where words are in the form of shorthand writing or in code, providing a written transcript of the words recorded or contained in the document (s 20(1)).

3.320 The right to access a document in a particular form may be refused and access given in another form in the following circumstances:

• where access would interfere unreasonably with the agency’s operations or the performance of a minister’s functions (s 20(3)(a)) — for example, if an applicant asks to inspect documents that an agency requires for everyday operations or where the applicant is subject to a restricted access arrangement and allowing them to inspect the documents would conflict with the restricted access arrangement and prejudice the agency’s ability to meet its obligations under the Work Health and Safety Act 2011.^[193]
• if it would be detrimental to the preservation of the document or not appropriate given the physical nature of the document (s 20(3)(b)) — for example, if a document is fragile or if giving access outside its normal environment might result in damage, or the document cannot be photocopied due to its condition or because it is a painting, model or sculpture.
• if giving an applicant access to a document in a certain form would, but for the FOI Act, involve an infringement of copyright in relation to the matter contained in the document (s 20(3)(c)). This provision does not apply where the matter contained in the document relates to the affairs of an agency or department of state or if the copyright holder is the Commonwealth, an agency, or a State.

3.321 Agencies and ministers are expected to make reasonable use of available technology to facilitate access to documents — for example, by providing copies by electronic transmission, or to provide access in a particular form that is possible only through technology. Access to documents by means that do not require physical inspection in an agency office should generally be preferred.

3.322 The FOI Act gives a legally enforceable right of access to documents that already exist, and an agency is not required to create a new document to satisfy an FOI request. However, agencies and ministers should consult an applicant as to the most effective way of providing access to the information they seek, including by administrative release of information that has been compiled from documents or a database (see [ 3.5 ]—[3.12]).

3.323 An FOI applicant can seek internal or IC review of a decision not to provide access in the form requested by the applicant where all documents to which the request relate have not been provided (s 53A(c)).

Charges for alternative forms of access

3.324 If an agency or minister decides to provide a document in a form different to that requested by the applicant, the charge payable cannot exceed the charge that would have applied if access had been given in the form the applicant requested (s 20(4)).

Protections when access to documents is given

3.325 The FOI Act provides protection from civil action and criminal prosecution for those involved in giving access to documents under the Act. These protections are designed to ensure that potential legal action does not impede the Act’s operation.

Actions for defamation, breach of confidence or infringement of copyright

3.326 Section 90 of the FOI Act provides that no action for defamation or breach of confidence or infringement of copyright lies against the Commonwealth, a minister, an agency or an agency officer solely on the ground of having given access, or having authorised access, to a document. The protection applies only in the context of the operation of the FOI Act and requires a decision-maker to act in good faith with a genuine belief that publication or access is either required or permitted under the Act. Similar protections applying in particular situations (noted below) are given by s 91.

3.327 The protections afforded by ss 90 and 91 extend to:

• giving access in response to an FOI request under the FOI Act (s 90(1)(b))
• publishing information under s 11C (disclosure log) and as part of the IPS (s 90(1)(a))
• publishing or giving access to a document ‘in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power)’ (s 90(1)(c))
• showing a document to a third party in the course of consultation under ss 26A, 27 or 27A (s 91(1C)).

3.328 If a document is disclosed in any of the ways mentioned in [ 3.327 ], protections in respect of that disclosure also extend to the person who supplied the document to the agency or minister (s 90(2)). If consultation under ss 26A, 27 or 27A occurs, protection extends to the author of the document and to any other person because of that author or other person having shown the document (s 91(1C)).

3.329 Disclosure of a document to a person under the FOI Act (whether to an applicant or during consultation) does not, for the purpose of the law of defamation or copyright, constitute an authorisation or approval to republish the document or to do an act comprised within the copyright in the document (s 91(2)). That is, an FOI applicant who disseminates defamatory or copyright material in any document received following an FOI request has no FOI Act protection against an action for defamation or breach of copyright.

3.330 A decision-maker who is aware that a document released under the FOI Act contains defamatory material is encouraged to draw this to the applicant’s attention. Similarly, an agency or minister may advise an applicant that copyright permission may be needed from another party for any reuse of the material. A statement such as the following could be used:

To the extent that copyright in some of this material is owned by a third party, you may need to seek their permission before you can reuse or disseminate that material.

3.331 For further guidance on agency copyright notices in connection with the IPS and the disclosure log, see Parts 13 and 14 of these Guidelines.

Offences

3.332 Section 92 operates in a similar way to s 90 to provide that neither a minister nor a person authorising access to a document, or being involved in providing access, is guilty of a criminal offence by reason only of that action. For example, where a secrecy provision in other legislation would otherwise prohibit the disclosure of a document, s 92 will relieve any minister or authorised officer of an agency from criminal liability if they authorise or give access under the FOI Act.^[194] This immunity extends to disclosures for the purposes of undertaking consultation under ss 26A, 27 or 27A of the FOI Act (s 92(2)). To benefit from the immunity, the minister or authorised officer must act in good faith with a genuine belief that disclosure is required or permitted under the FOI Act.