Section 61GA - Power to require a further search for documents

Under section 61GA, the Office of the Victorian Information Commissioner (OVIC)⁶ may give notice:

• in the case of a decision of an agency or Minister under section 25A(1) or 25A(5), to process or identify a reasonable sample of the documents to which the request relates;⁷ or
• 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.⁸

Section 61GA sets out circumstances in which OVIC may require agencies or Ministers to process a sample of documents or undertake further searches. The power to require further searches is not restricted by the circumstances in section 61GA(1).

The agency or Minister has 10 business days within which to comply with a requirement of the Information Commissioner made under this section,⁹ however this time may be extended by a request of the agency and by OVIC’s agreement.¹⁰

OVIC may specify any reasonable means or method for undertaking a further search.

If OVIC forms a ‘reasonable belief’ that the agency has not conducted an adequate search, they can order further searches. What is considered ‘reasonable’ will differ according to the context in which it is applied. It will depend on the particular organisation, the information requested, and the circumstances surrounding the request for information.

A reasonable belief is a belief based on facts that would lead a reasonable person to think that something may have occurred.¹² It requires more than suspicion but does not require certainty.

An agency’s or Minister’s FOI unit or officer is typically responsible for coordinating a search for documents relevant to a request, and gathering information to assist with assessing located documents.

If an agency or Minister searches for documents in response to a request, it must ensure the search is thorough and diligent. An agency or Minister may be guided by its internal document search policies and practices, at a minimum the agency or Minister must:

• determine which documents or types of documents the applicant is seeking access to, with reference to the terms of the applicant’s request;
• identify the most appropriate business area or unit to conduct the search (depending on the applicant’s request and the agency’s or Minister’s record keeping practices, this could involve multiple business units and individuals, including external consultants or businesses engaged or employed by the agency);
• conduct a thorough and diligent search to locate all relevant electronic and hard copy documents;
• ensure a record is kept of searches undertaken (see Professional Standard 6.1); and
• where relevant, provide a reasonable explanation as to why relevant documents are not in its possession or cannot be located.

Conducting a thorough and diligent search means an agency must take all reasonable steps to identify all of the relevant documents in the agency’s possession. Reasonable steps will depend on the circumstances of each request. However, it does not require excessive or extravagant searches to be undertaken. An agency should take a practical and common-sense approach to undertaking a document search with reference to the terms of the request and an understanding of what types of records the agency holds and the agency’s record keeping practices.

A common-sense interpretation of the applicant’s request should be taken to define the scope of the request and the scope of the search to be undertaken. This means an agency should not take an overly technical or narrow approach to interpreting the terms of the request.

It may be useful, and necessary in some cases, to refer to the context in which the documents were created to do this. For example, if the documents relate to a particular incident, this may clarify the types of documents that may exist – such as incident forms, investigation reports, and internal improvement briefings – or it may be the case that no relevant documents exist because no such incident occurred.

Identifying the scope of a request and the context in which relevant documents may have been created will help an agency determine whether it needs to consult internally with one or more business areas. Internal consultation can take some time, so it is important to identify this and consult with the applicant early about the scope of their request.

Similarly, an agency should consider the nature, age and type of documents being requested to assist in determining where and how to search for them. For example, if an applicant seeks access to emails related to a particular agency officer, that officer should be consulted and asked to provide relevant documents.

If an agency cannot locate a document, it may be necessary to consult its internal document destruction policies and relevant retention and disposal authorities issued by the Public Record Office Victoria (PROV) to determine whether it was destroyed in accordance with those authorities.

To ensure all relevant places are searched, it is important for an agency to understand where and how documents are stored. Therefore, an agency should ensure it understands its own record holdings and records management systems (including digital, hard copy and archived systems), and identify its document storage policies and practices where relevant.

The relevant business area will likely be the subject matter expert for the requested documents. Therefore, it is important to consult early to locate relevant documents, ask questions, and gather contextual information to assist in assessing the documents under the Act.

When consulting internally, an agency should ensure the relevant business area understands:

• the terms of the request;
• the time frame for responding to the search request (noting the statutory time frame for responding to a request and any extensions of time);
• that all relevant documents in existence at the time the request was made must be provided to the FOI unit or officer for assessment, including documents the business unit may consider are sensitive, marked ‘privileged’ or ‘confidential’, draft and duplicate documents;
• multiple document storage systems may need to be searched, including electronic files, hard copy and archived files;
• details of all searches must be recorded (Professional Standard 6.1); and
• the agency business unit or officer must assist and cooperate with the FOI unit in processing the request (Professional Standard 9.5).

To help with assessing the documents under the Act, it is also useful to ask the business area to:

• explain the background and context in which the documents were created (for example, why it was created and its significance); and
• identify any particular sensitivities or concerns with releasing the documents to the applicant.

While consulting internally can provide helpful and often crucial information to assess a document under the Act, it should not impede the decision-making process, nor cause unnecessary delay.

In addition, only an authorised officer may make an FOI decision.¹⁴ The business area cannot direct an agency’s authorised officer to make a particular decision (Professional Standard 8.1).

OVIC may specify any reasonable means or method for undertaking a further search. For example, OVIC may ask the agency or Minister to search for documents in certain locations or OVIC may specify that the agency or Minister use certain search terms.

Where a decision has been made by an agency under section 25A(1) or 25A(5), OVIC may request the agency to process or identify a reasonable sample of the documents to which the request relates. 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.