Mitchell, Pip --- "Maximising FOI success: Applying for access to government information" [2021] PrecedentAULA 53; (2021) 166 Precedent 22

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MAXIMISING FOI SUCCESS

APPLYING FOR ACCESS TO GOVERNMENT INFORMATION

By Pip Mitchell

Given the number of state and federal government agencies, their purpose and reach, and how often individuals and corporations interact with them, government agencies hold a significant amount of information to which clients will want access. Each jurisdiction has legislation^[1] providing for rights to seek access to government information, but that process can face significant hurdles. Knowing how to navigate the freedom of information (FOI) system can significantly increase both your client's success in accessing documents and the speed with which access is granted.

MAKING AN FOI APPLICATION

To whom?

An FOI request can generally be made to an ‘agency’, which will be a defined term under the relevant legislation. Generally, an agency will include ministers, government departments, body corporates established by legislation (generally excluding incorporated companies), any body prescribed to be an agency and, in certain instances, a person holding office under legislation. However, some agencies will be partially or wholly exempt from the operation of FOI legislation: for example, in Victoria, the Freedom of Information Act 1982 (Vic) does not apply to a court or holder of judicial office in relation to their judicial functions.^[2]

It is important to identify the right agency or agencies to which an FOI request should be made. If the application is made to the wrong agency, at the very least this will cause delay and the potential waste of an application fee. While most jurisdictions provide for an agency to transfer an FOI request to another agency if it is more appropriate for them to deal with it,^[3] if you get the agency wrong they may not know to whom the request should be transferred – or they may process the request themselves and have very little information to produce. A little research to ensure the identification of the correct agency can save time.

Alternatively, it is sometimes preferable or even necessary to make an FOI request for the same information to more than one agency to make sure that you get access to all relevant documents – particularly if government responsibilities may have been transferred from one department to another. If you do make an application to more than one agency, it may be useful to make that clear in the application and to explain that you seek documents held by the receiving agency even if another agency also has documents or may be the more appropriate agency. That way you could avoid having all requests transferred to the same agency, and therefore missing out on documents held by another agency.

For what?

FOI legislation generally allows you to seek access to documents ‘of an agency’ or ‘held by an agency’. Some jurisdictions go further, and extend this to the documents that an agency is entitled to access.^[4] However, be aware that most jurisdictions expressly provide for certain types of information, such as policies and manuals, to be made public,^[5] and several require an agency to maintain a 'disclosure log' about previous access applications and decisions.^[6] Some jurisdictions make certain information available under other legislation or in other places: typical examples might be government contracts of certain values. While the documents or information available in those other ways may not answer all of what you are looking for, it is worth checking for such information first, including with the agency itself. Note that if information is made available under other legislative schemes, or by purchase (for example through ASIC company extracts or land title searches), such information may be exempt from the FOI legislation^[7] or a decision-maker may consider that it is not in the public interest to disclose further information than what is already available. It is advisable to be aware of what is already available before finalising your request.

While FOI legislation in all jurisdictions provides for time frames by which a decision on a request is to be made, time does not usually start to run until any application fee is paid and the request complies with what the legislation requires (which usually includes sufficient detail to enable the agency to identify documents falling within scope).^[8] If the request is not clear, the agency does not need to start processing it until the scope is sufficiently clarified.

To reduce the risk of time being taken up in clarifying what is sought, careful drafting of the request is required. If you are seeking particular documents or files, name them where possible. If it is a category of document, consider including time frames and specifying whether you seek only certain types of documents (for example reports) or any document covering the information (for example emails, drafts and file notes).

FOI legislation generally applies to documents that already exist, but most jurisdictions also provide for agencies to respond to requests by extracting information from their computer systems and creating a document.^[9] This can be a useful way to access the information actually sought without an agency needing to locate all documents possibly in the scope of a request, and it may be worth expressly stating that that is what is sought in your request.

While you are entitled to seek access to as much information as you would like, be aware that FOI legislation generally provides for an agency to refuse to process a request if, due to the voluminous nature of the request, doing so would ‘substantially and unreasonably’ divert the agency's resources from its other operations.^[10] As such, being targeted with your FOI request minimises the risk of a refusal on that basis. While agencies are generally required to give an applicant an opportunity to consult to narrow the scope of a request before they refuse to process it, negotiations can take time and may still result in a refusal to process if you are found not to have genuinely engaged in attempting to narrow the scope of a request.

What else?

While not strictly necessary, it can be useful to give consideration, in drafting your request, to minimising the risk of an agency needing to consult with third parties on the request (this generally slows the process down and often expressly allows an agency to extend the time frame for making a decision), or of documents being found to be wholly or partially exempt from production.

The types of exemptions that may require third party consultation can vary between jurisdictions but some commonalities arise:

• Personal information of third parties will almost always be exempt from disclosure. While most jurisdictions might exempt such information only if the disclosure would be ‘unreasonable’, most agencies are concerned not to breach the privacy of individuals. As such, if you are seeking personal information, include evidence of the person's consent (if you have it). If you don't need any personal information, it is useful to expressly state this in the request, so that the agency can treat that information as irrelevant and avoid the need to consult the individual about the disclosure.

• Commercially sensitive information may be exempt. That applies to commercial information of third parties and, in some cases, to commercial information of an agency. If you don't need that information (for example if you want to know how many contractors are engaged but don't care about what they are paid), make that clear in the request.

Furthermore, in some jurisdictions an express public interest consideration is required for most exemptions,^[11] while in others it may be implied or apply only to some exemptions. Particularly for those jurisdictions where the public interest must always be assessed by a decision-maker, it can be useful to set out, in your application, why the public interest favours disclosure. Check the legislation that is applicable to your request carefully: while some jurisdictions (for example Victoria) leave public interest considerations at large and case law has interpreted the public interest generously,^[12] others (for example the Commonwealth) expressly set out what can and cannot be considered as part of the public interest consideration.^[13]

PROCESSING THE REQUEST

As described above, each jurisdiction sets out time frames in which a decision on a request is meant to be made, generally ranging from 30 to 45 days. Most jurisdictions provide for extensions of that time frame by consent and, even without consent, if third party consultation is required or if the independent reviewer agrees. As such, minimising likely third party consultation minimises the risk of the time frame being extended.

The consequence of an agency not making a decision within the relevant time frame is generally that the agency will be deemed to have refused the request. The applicant may then seek review of the deemed refusal within the time frame permitted for making applications for review.

While it is open to applicants to immediately seek review of a deemed refusal decision, that may not always be the most productive outcome. If, for example, an agency approaches you to consent to an extension of time, that might still get you the documents more speedily than if you refuse the extension and then seek review of a deemed refusal, because once you start that review process time frames can significantly extend (many independent reviewers are backlogged and may take some time to address the review) and the agency may divert time to dealing with the review application rather than processing the request itself. It is useful, if the time frame for making a decision has passed without receipt of the decision, to ask the agency when the decision might be made: if the date provided is only a few weeks away, it is likely be faster to wait on that decision than to immediately seek review. It can help to ask an agency upfront what the likely processing time will be or to conduct research into that issue: some agencies are continually swamped with requests and cannot meet the legislative deadlines, so understanding what is likely to be an achievable time frame will manage your and your client's expectations. If a decision is made after the time frame has expired, you will still have review rights of that decision, so missing the chance to seek review of a deemed refusal does not prevent later review of an actual decision.

If the agency contacts you during the processing of the request to raise concerns about the request’s scope, the consultation required or even the exemptions that may apply, be pragmatic about engaging with the agency. While all FOI legislation includes objects and purposes of making government information more transparent, a decision-maker is required to properly consider a request and any applicable exemptions and they may be in receipt of submissions from third parties raising issues of which you may not be aware. Pragmatism can assist in getting you at least some information sooner. Particularly if the consultation relates to the volume of documents being sought, trimming the request down in the first instance to enable it to be processed leaves open the possibility of making a further request in the future, perhaps one that is more targeted, based on what is released in the first request. It can also be worth discussing with the agency whether disclosure on a different basis would be acceptable. For instance, if the agency is concerned about disclosing commercially sensitive information because once it is disclosed to you there are no limits on what you can do with it, it may be worth considering proposing to agree to only limited use of the information. That won't work for all purposes but can be a useful negotiating tool.

DEALING WITH A DECISION

All jurisdictions provide for at least some form of independent merits review of a decision. However, time frames for seeking review are generally quite tight and there may be no power for a reviewer to grant an extension. As such, assessing a decision quickly to make a determination on whether to seek review is important. Also, make sure that you check your review rights carefully; in many jurisdictions, certain types of exemptions (for example for national security^[14]) may be reviewable by different bodies than for other exemptions, or you may first have to go through an internal review by the agency before accessing independent review.^[15]

It can be relatively common for a merits review to achieve more disclosure than an original decision, not least because the degree of sensitivity of information can change over time, meaning that exemptions that were once applied may no longer be necessary. As such, do not be afraid to seek review if it seems warranted. The onus is on the decision-maker to justify the decision on review, and experience shows that the interpolation of an independent reviewer, who will have access to all the documents in conducting the review, will lead many agencies to reconsider and refine possible exemptions.

Furthermore, most independent reviewers have the capacity to assist the parties to negotiate an outcome.^[16] Negotiations might include, for example, an applicant being able to inspect a copy of a document (but not keep it) so that they can assess whether it is sufficiently relevant to keep fighting for access, or disclosure on a confidential basis.

Finally, in addition to seeking review of a decision, you will generally also have a right to make a complaint about how the agency managed the request.^[17] A complaint will generally relate to the process (for example that it took too long or that the agency was unreasonable in consultations) rather than the decision itself, but it provides another avenue through which to address any dissatisfaction with the processing of a request.

KEY TAKEAWAYS

• Plan ahead: know which agencies to approach and draft your request carefully and clearly.

• Consider what third parties may be affected and how that may impact your request.

• Be open to consulting on the terms and scope of the request.

• Be pragmatic about time frames.

Pip Mitchell is the lead partner in Clayton Utz's Melbourne Public Sector team, with extensive experience advising government entities on public law issues and disputes. Pip's technical expertise in public and administrative law and decision-making, statutory interpretation and compliance, freedom of information, privacy, public interest immunity and statutory secrecy comes from her experience with merits and judicial review proceedings in state and federal courts and tribunals. WEBSITE https://www.claytonutz.com/people/pip-mitchell.

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^[1] Freedom of Information Act 1982 (Cth) (Cth Act); Freedom of Information Act 1982 (Vic) (Vic Act); Government Information (Public Access) Act 2009 (NSW) (NSW Act); Right to Information Act 2009 (Qld) (Qld Act); Right to Information Act 2009 (Tas); Freedom of Information Act 1991 (SA); Freedom of Information Act 1992 (WA); Information Act 2002 (NT); Freedom of Information Act 2016 (ACT) (ACT Act).

^[2] Vic Act, above note 1, s6.

^[3] For example Qld Act, above note 1, s38.

^[4] For example ACT Act, above note 1, s14.

^[5] For example Vic Act, above note 1, s8 and Qld Act, above note 1, ch 2.

^[6] For example NSW Act, above note 1, s25.

^[7] For example ACT Act, above note 1, s45.

^[8] For example ibid, s30(2)(a).

^[9] For example Cth Act, above note 1, s17.

^[10] For example NSW Act, above note 1, s60.

^[11] Especially the Commonwealth, NSW, ACT and Queensland.

^[12] For example Vic Act, above note 1, s30(1)(b); Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483; and Friends of Mallacoota Inc v Department of Planning and Community Development (General) [2011] VCAT 1889, [51].

^[13] For example Cth Act, above note 1, ss11B(3), 11B(4).

^[14] For example Vic Act, above note 1, s49A(4).

^[15] For example NSW Act, above note 1, s89(2).

^[16] For example Vic Act, above note 1, s49N.

^[17] For example Cth Act, above note 1, pt VIIB.