Section 49KA - Power to require a further search for documents

Extract of legislation

49KA	Power to require a further search for documents
	(1)	This section applies if the Information Commissioner reasonably believes that an agency or Minister has failed to undertake an adequate search for documents that relate to a decision that is the subject of a review under this Division.
	(2)	During the review, the Information Commissioner may give a notice to an agency or Minister to require the agency or Minister—
		(a)	in the case of a decision of an agency under section 25A(1) or 25A(5), to process or identify a reasonable sample of the documents to which the request relates; or
		(b)	in any other case, to further search or to cause a further search to be undertaken for documents in the possession, custody or control of the agency or Minister.
	(3)	The agency or Minister must comply with a requirement of the Information Commissioner under subsection (2) within the reasonable period stated in the notice, being not less than 10 business days.
	(4)	The Information Commissioner, on request of the agency or Minister, may extend the time for complying with a notice under subsection (2).
	(5)	The Information Commissioner may specify any reasonable means or method for undertaking a further search under subsection (2)(b).
		Example
		The Information Commissioner may specify that the agency is required to undertake a search of the agency’s email system by searching specified keywords.
	(6)	The required period for completing the review under section 49J is suspended from the time the Information Commissioner gives a notice under subsection (2).
	(7)	The agency or Minister must notify the Information Commissioner within 3 business days after the end of the period referred to in subsection (2) or (3) of the following information—
		(a)	in the case of a notice under subsection (2)(a)—
			(i)	that the agency or Minister has processed or identified a reasonable sample of the documents; and
			(ii)	the nature of the documents processed or identified; and
			(iii)	whether the decision to refuse to grant access under section 25A(1) or 25A(5) is likely to be upheld;
		(b)	in the case of a notice under subsection (2)(b), that the agency or Minister has completed the further search and whether or not any further documents have been located.
	(8)	After receiving a notification under subsection (7), the Information Commissioner may decide to refer the matter back to the agency or Minister in accordance with section 49L.

Guidelines

OVIC can require document searches in certain circumstances

1.1

During a review, the Office of the Victorian Information Commissioner (OVIC)⁴ can require an agency or Minister to conduct a search for documents, or identify a sample of documents, in certain circumstances:

If OVIC reasonably believes that an agency or Minister has not adequately searched for documents relevant to a request, OVIC can require them to search for documents again, to try and find documents in the agency or Minister’s possession, custody, or control, which are relevant to the applicant’s request.⁵
OVIC can also require an agency or Minister to process or identify a reasonable sample of documents relevant to the applicant’s request, where the agency or Minister refused the request under section 25A(1) or section 25A(5).⁶ Under these provisions, an agency or Minister may refuse a request without searching for, or identifying, documents relevant to the request.

1.2

OVIC has a similar power to require further searches under a complaint.

See section 61GA – Power to require a further search for documents, for more information.

‘Reasonably believes’

1.3

What is considered ‘reasonable’ will differ according to the context. It will depend on the particular agency or Minister, the information requested, and the circumstances surrounding the request.

1.4

A reasonable belief is a belief based on facts that would lead a reasonable person to think that something may have occurred.⁸ It requires more than suspicion but does not require certainty.

Reasonable sample of documents

1.5

If an agency or Minister makes a decision under section 25A(1) or 25A(5), OVIC may request the agency or Minister to process or identify a reasonable sample of relevant documents.

1.6

The number and type of documents to be included in the sample is determined on a case-by-case basis and will depend on the number and type of documents likely to fall within the terms of the request.

What happens if an agency or Minister receives a notice to search for documents?

Timing

1.7

An agency or Minister must carry out the searches as described in a notice and within the timeframe outlined in the notice.

1.8

An agency or Minister will have at least 10 days to search for documents.¹¹ The agency or Minister can ask OVIC to extend the timeframe.¹²

Reasonable means or methods

1.9

OVIC may specify any reasonable means or method for undertaking a search. For example, certain locations to be searched or certain search terms to be used when conducting a search.¹⁴

Providing information to OVIC

1.10

After completing a further search for documents, the agency or Minister must tell OVIC:

if the agency or Minister processed or identified a reasonable sample of documents for a decision made under section 25A(1) or section 25A(5):
- that the agency or Minister has processed or identified a reasonable sample of documents;
- the nature of the documents processed or identified (for example, what kinds of documents were found);
- whether the agency or Minister is likely to keep its decision to refuse access under section 25A(1) or section 25A(5); or
if the agency or Minister searched for more documents:
- that the agency or Minister has completed their search; and
- whether the agency or Minister located more documents relevant to the applicant’s request.¹⁶

1.11

If the agency or Minister does not find more documents, OVIC may ask the agency or Minister to provide detailed information about the additional searches, including a list of all locations searched and the key words used.

1.12

The agency or Minister has three business days to provide this information to OVIC after the end of the timeframe in the notice.

OVIC may refer the decision back to the agency or Minister

1.13

After OVIC receives this information from the agency or Minister, OVIC may refer the decision back to the agency or Minister to make a fresh decision.¹⁹

1.14

It is also open to the agency or Minister to reconsider the decision and make a fresh decision on their own initiative.²⁰

Example

During a review, OVIC was not satisfied the agency had conducted a thorough and diligent search for documents. Under section 49KA(2)(b), OVIC required the agency to search for documents in its possession, custody or control that would fall within the scope of the applicant’s request.

OVIC required the agency to search for documents provided by a third party within a certain timeframe.

Following a further search by the agency, additional documents were located. The agency decided to make a fresh decision and process the additional documents.

What happens to the time to complete a review?

1.15

If OVIC requires an agency or Minister to conduct a further search for documents, the time to complete the review pauses from the date OVIC gives the notice.²²

More information

For more information on what ‘adequate search’ means, see section 61GA – Power to require a further search for documents.

Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
Freedom of Information Act 1982 (Vic), sections 49KA(1) and 49KA(2)(b).
Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
Freedom of Information Act 1982 (Vic), sections 49KA(1) and 49KA(2)(b).
Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
George v Rockett [1990] 170 CLR 104; Liversidge v Anderson [1941] UKHL 1.
George v Rockett [1990] 170 CLR 104; Liversidge v Anderson [1941] UKHL 1.
Freedom of Information Act 1982 (Vic), section 49KA(3).
Freedom of Information Act 1982 (Vic), section 49KA(4).
Freedom of Information Act 1982 (Vic), section 49KA(3).
Freedom of Information Act 1982 (Vic), section 49KA(4).
Freedom of Information Act 1982 (Vic), section 49KA(5).
Freedom of Information Act 1982 (Vic), section 49KA(5).
Freedom of Information Act 1982 (Vic), section 49KA(7).
Freedom of Information Act 1982 (Vic), section 49KA(7).
Freedom of Information Act 1982 (Vic), section 49KA(8).
Freedom of Information Act 1982 (Vic), section 49M.
Freedom of Information Act 1982 (Vic), section 49KA(8).
Freedom of Information Act 1982 (Vic), section 49M.
Freedom of Information Act 1982 (Vic), section 49KA(6).
Freedom of Information Act 1982 (Vic), section 49KA(6).