Conducting a thorough and diligent search for documents and undertaking internal consultation

This practice note provides an overview of what an agency should consider to ensure a search for documents is ‘thorough and diligent’, considerations for consulting internally, and what happens if a document cannot be located or does not exist. All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.

SEARCHING FOR DOCUMENTS

An agency’s Freedom of Information (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 searches for documents in response to a request, it must ensure the search is thorough and diligent. An agency may be guided by its internal document search policies and practices, however, at a minimum the agency must:

1. determine which documents or types of documents the applicant is seeking access to, with reference to the terms of the applicant’s request;
2. identify the most appropriate business area or unit to conduct the search (depending on the applicant’s request and the agency’s record keeping practices, this could involve multiple business units and individuals, including external consultants or businesses engaged or employed by the agency);
3. conduct a thorough and diligent search to locate all relevant electronic and hard copy documents;
4. ensure a record is kept of searches undertaken (see Professional Standard 6.1); and
5. where relevant, explain to an applicant why a document does not exist or could not be located.

What does ‘thorough and diligent’ mean?

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 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 early.

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.

Consulting internally with business areas

The 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);[1] and
• the agency business unit or officer must assist and cooperate with the FOI unit in processing the request (Professional Standard 9.5).[2]

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 (section 26) and the business area cannot direct an authorised officer to make a particular decision under the Act (Professional Standard 8.1).

Creating a document

In some cases, an agency may be required to create a document in response to part or all of an applicant’s request (section 19). This is where the request is for information that does not exist in a discrete form in a document, but the agency can use a computer or other equipment that is available to it to retrieve or collate the relevant information.

The same will apply where the agency can make a transcript for a sound recording it holds.

RECORDING SEARCHES

Under Professional Standard 6.1, where a document search is conducted, an agency must ensure it keeps a record of searches undertaken, including information relating to the locations searched, the method or type of searches undertaken, and where applicable, the key words used in the searches.

To comply with this standard, a record may include a completed proforma template, email response, file note or some other type of record.

Benefits of recording searches

Keeping a record of document searches undertaken is a good record keeping practice and will help an agency develop a more precise understanding of the nature of the search required for requests, including the time and resources involved. This will enable the agency to ensure a thorough and diligent search has been completed by agency officers, enable the agency to accurately calculate access charges where applicable, and respond to complaints made to the Information Commissioner under section 61A.

WHAT IF DOCUMENTS CANNOT BE LOCATED OR DO NOT EXIST?

Despite an agency conducting a thorough and diligent search, sometimes requested documents cannot be located or do not exist. In those circumstances an agency’s written decision must inform the applicant of their right to make a complaint to the Information Commissioner (section 27(1)(e)).

If an applicant makes a complaint about a document that cannot be located or does not exist, the Information Commissioner will investigate the adequacy of document searches undertaken. This may include asking the agency to explain where and how it searched and why it could not locate the documents.

Under sections 49KA and 61GA, the Commissioner may require an agency to conduct further document searches, including using certain key word searches.

Explaining searches where documents are not located or do not exist

Where a search was undertaken, and a document does not exist or cannot be located, Professional Standard 8.4 requires an agency to provide a summary of the search to the applicant. This summary may outline the steps taken to search for the document, including the locations searched, the method or type of searches, and where applicable, the key words used in the search. Where practicable, Professional Standard 8.4 also requires an agency to also explain why the document does not exist or could not be located.

The level of detail required in an explanation will vary depending on a number of factors, including the nature of the request, the age of the documents, and the agency’s record management system and practices. Some examples of situations in which an explanation might be required include, where the document was:

• never created or had not yet been created at the time of the request – if so, explain this to the applicant;
• created but has been destroyed – if so, explain to the applicant on what basis the document was destroyed (this might involve explaining the document was destroyed in accordance with a particular PROV retention and disposal authority); or
• created but cannot be located – if so, ensure the applicant is provided with a summary of the searches undertaken and a reasonable explanation setting out why the document cannot be located.

In some circumstances, an agency may not be able to explain why a document cannot be found. In those instances, it will be sufficient for an agency to note in its decision letter that it is unsure why a document does not exist or could not be located, provided it describes the searches undertaken to locate the document.

The exception to Professional Standard 8.4 is if the agency’s decision is made in accordance with sections 27(2) or 33(6). These provisions allow an agency to make a decision that neither confirms nor denies the existence of a requested document, provided certain conditions are met.

[1] OVIC has a template document for recording document searches, available here: https://ovic.vic.gov.au/resource/template-3-record-of-document-search/.

[2] Consider attaching a copy of OVIC’s guidance on the responsibilities of Victorian Public Sector Officers with a request for internal consultation, to outline responsibilities when processing an FOI request; Office of the Victorian Information Commissioner, Procedural Practice Note 20: Overview of the FOI Act and the responsibilities of Victorian public sector officers (available here: https://ovic.vic.gov.au/resource/overview-of-the-freedom-of-information-act-1982-and-the-responsibilities-of-all-victorian-public-sector-officers/).