One Step Forward Two Steps Back: The Freedom of Information Reforms
The aim of the recent freedom of information (FOI) reforms was to encourage a pro-disclosure culture, and to provide additional assistance and guidance to both the applicant and agencies in processing FOI requests. However, since the commencement of those reforms, maintaining the balance between the philosophy and the practical operation of the FOI Act has presented challenges for agencies in meeting their statutory FOI obligations.
Agencies who do not use the new formal procedures to clarify requests and 'stop the clock' risk a deemed refusal decision and having to bear the processing costs of a voluminous and time consuming FOI request. Informal consultation with applicants about the scope of their request is very risky particularly if applicants are slow to respond.
In November 2010, the Freedom of Information Act 1982 (Cth) (the FOI Act) underwent its first substantial reform since its enactment in 1982. The reforms primarily sought to change the culture surrounding FOI to fulfill its original objectives from reluctant compliance to a more pro-disclosure environment. A number of procedural requirements were introduced in relation to the processing of FOI requests. The reforms also saw the creation of the Office of the Information Commissioner (OAIC), the office responsible for conducting merits review of FOI decisions, investigating complaints, publishing FOI guidelines, promoting awareness and understanding of the FOI Act, providing advice and assistance and monitoring agency compliance with the FOI Act.
The FOI Act sets out requirements that the form of an FOI request must meet. In particular, pursuant to paragraph 15(2)(b) of the FOI Act, an FOI request must provide such information concerning the document sought as is reasonably necessary to enable a responsible officer of the agency to properly identify it. Although the FOI Act is intended to provide a scheme for access to ‘documents’, and imposes these requirements in relation to the content of a request, the OAIC has demonstrated that it will adopt a broad interpretation of what constitutes a valid request.
For example, where an applicant makes a request for access to information (for example, by asking a series of questions concerning the agency's position on a particular issue) as opposed to seeking specific identifiable documents, most government agencies would consider that such a request does not constitute a valid FOI request that meets the requirements of paragraph 15(2)(b). In these circumstances, the agency would normally contact the applicant to clarify the scope of the request on the understanding that the statutory processing time frame would not commence until the scope was clarified (at which time the request would become a valid FOI request).
However, the position of the OAIC appears to be that a request for information (as opposed to documents) of the type outlined above can still constitute a valid FOI request on the basis that it may be reasonably practicable for the agency to identify the documents to which the applicant is seeking access. This means the statutory time frame for processing the request would commence from the date the request is received, rather than the date the scope of the request is clarified. The failure to treat such a request as a valid FOI request can result in a deemed refusal of the applicant’s request, which in turn can have serious consequences for an agency, including reputational damage and financial implications (charges cannot be imposed where statutory timeframes have not been met). Given the increased number of extensive FOI requests since the implementation of reforms which may relate more to interest in the Government's reform agenda than the FOI reforms, it will be potentially very expensive if an agency misses a statutory dead line and is required to bear the charges itself.
The broad interpretation of what constitutes a valid request adopted by the OAIC suggests that even in circumstances where a request is made in the broadest of terms, an agency should construe it in a manner that is of the greatest assistance to an applicant who may not know exactly what documents the agency holds. This is consistent with the duty of agencies to take reasonable steps to assist an applicant in making a valid FOI request that can be processed, as well as throughout the FOI process.
Another related issue which arises in balancing the pro-disclosure culture of FOI with the procedural requirements under the FOI Act is the running of statutory timeframes, which apply to ensure that agencies respond to FOI requests in a timely manner. Subsection 15(5)(b) of the FOI Act provides that an applicant is to be notified of a decision on a request no later than 30 days after receipt of a request.
As noted above, prior to the FOI reforms, an agency would normally have contacted an applicant to clarify the scope of an apparent non-compliant request, and the statutory processing timeframe would stop during this period. It is still consistent with an agency’s general obligation of assistance under the reformed FOI Act for agencies to seek such clarification from an applicant so that the request may be processed. However, as the FOI Act now contains specific provisions as to the periods which are excluded from the calculation of the processing timeframes (including in particular during a ‘request consultation process’ period), such a process can only be conducted on an informal basis and the timeframe would continue to run. In other words, an informal request by an agency that an applicant clarify the scope of a request does not 'stop the clock'.
In order to ‘stop the clock’, a formal request consultation process under new section 24AB of the FOI Act must be undertaken where either of the following ‘practical refusal reasons’ exist:
• the work involved in processing the request will substantially and unreasonably divert the resources of the agency from its other operations; or
• the request does not satisfy the requirements of paragraph 15(2)(b) (identification of documents).
If a practical refusal reason exists, the agency must write to the applicant advising the following:
• that the agency intends to refuse access to a document in accordance with a request;
• the practical refusal reason;
• the name of an officer of the agency (contact person) with whom the applicant may consult during a period;
• details of how the applicant may contact the contact person; and
• that the period during which the applicant may consult with the contact person is 14 days after the applicant is given the section 24AB notice.
If the applicant does not contact the agency contact person within the consultation period by either withdrawing the request, revising the request, or advising that they do not wish to revise the request, the request is taken to have been withdrawn.
This formal process may appear harsh and heavy handed compared to informal communications, and may appear to both an applicant and the agency to undermine the obligation to positively assist applicants. However, as the informal clarification process does not stop the operation of the statutory time frame, and in the absence of further guidance from the OAIC, agencies have little option but to abandon the informal process and undertake the formal request consultation process under section 24AB, ultimately reducing the assistance provided to the applicant.
In practice, it may be possible for agencies to overcome this difficulty while maximising processing time and minimising the risk of potential deemed refusal decisions. It is important that agencies are aware of the approach taken by the OAIC on the interpretation and operation of the FOI Act, and ensure they are familiar with the new provisions of the FOI Act to best protect their position. Depending on the circumstances, the options available to an agency where a potential practical refusal reason exists are:
• Informal consultation – contact the applicant on an informal basis to clarify or reduce the scope of the FOI request, bearing in mind that the statutory timeframe will continue to run during this period. If the applicant does not respond quickly and provide informal written clarification of the request, the agency must, in order to stop the statutory time frame, write to the applicant under section 24AB.
• Formal section 24AB consultation – undertake a request consultation process, ensuring that the notice meets the requirements of subsection 24AB(2).
• Extension of time – seek an extension of time to process the request, either by agreement with the applicant under section 15AA or, in the case of complex or voluminous requests, on application to the OAIC under section 15AB.
Over the past months, FOI requests have proliferated and agencies have been endeavouring to keep the processing costs to a minimum and to drive efficiency, all in accordance with the objects of the FOI Act. However, in doing so, it appears that they are being caught by the statutory deadlines for processing requests and then having to bear the increased costs and penalties associated with deemed refusals.