Drafting a freedom of information decision letter
OVERVIEW
This practice note provides an overview of what to include in a decision letter to an applicant when making a decision under the Freedom of Information Act 1982 (Vic) the Act). All legislative references are to the Act unless otherwise stated.
Decision letter templates that can be modified to the specific circumstances of a matter are available as part of the Office of the Victorian Information Commissioner’s (OVIC) agency templates available on OVIC’s website.
GOOD DECISIONS ARE IMPORTANT
Good decisions ensure agencies meet their obligations under the Act and the Professional Standards. They also help applicants understand what was considered in making a decision, why a particular decision was made and the reasons for that decision.
A detailed decision letter can reduce follow-up enquiries an agency receives in relation to the decision, as well as reducing complaint and review applications to OVIC.
DRAFTING A DECISION
Section 27 and Professional Standards 8.1, 8.2, 8.3 and 8.4 outline what an agency must include in a decision letter. When drafting a decision, an agency should include the following information.
The request
The terms of the request should be clearly set out, and if relevant, detail any information as to how the request was interpreted. If there was any initial consultation with an applicant to clarify the scope of the request, or an original request was not valid, the consultation should be noted in the decision along with the applicant’s confirmation of the final terms of the request.
Background information
It is useful to set out any background information that is relevant to the documents or decision. This might include explaining how the documents were created or the matters to which they relate. This can provide context for the decision and assist an applicant’s understanding of documents identified that are relevant to their request.
While not required, agencies might also consider setting out any relevant timeframes for processing the request. For example, any extension of time agreed by the applicant or required for consultation; any time during which the processing time was suspended in accordance with section 25A(7); or, if the applicant paid a deposit, the date when the processing period commenced.
Document searches
Where an agency undertakes a thorough and diligent search, and a requested document cannot be found, Professional Standards 8.4 requires an agency to advise an applicant of this fact, provide a summary of its document searches and, where practicable, explain why the requested document(s) does not exist or could not be located.
In all other cases, it is good practice to provide a brief summary of searches undertaken to demonstrate to an applicant the steps taken to find documents relevant to their request.
Decision on each document
Under Professional Standard 8.3 an agency is required to identify whether documents are being released in full, released in part, or denied in full. Agencies are also required to describe relevant documents or types of documents that were identified. This assists an applicant to have a general understanding of how many documents, and the type of documents, that were located. It also provides further context to the decision.
Section 27(1)(c) also requires an agency to state whether it has decided to provide access to a document with exempt or irrelevant information deleted in accordance with section 25.
Agencies should consider using a schedule of documents to convey this information to the applicant.
Explain the reasons for the decision
Section 27(1)(a) requires an agency to explain how it reached its decision, the facts that were considered when assessing the documents and how those facts apply to the specific documents subject to the FOI request.
Similarly, under Professional Standard 8.2 an agency must explain its reasons for why each exemption or exception[1] applies and address each limb of the relevant exemption or exception. It is not sufficient to simply state a document is exempt, or that relevant limbs of an exemption or exception are satisfied without applying them to the specific documents.
Access charges
Where access charges are imposed, the decision should outline how much the applicant is required to pay and how the charges can be paid. The decision should also outline the effect of non-payment and that the applicant will receive the relevant documents once access charges are paid.
An applicant should be advised of their right to seek a certificate from the Information Commissioner in order to seek review of access charges imposed by the agency.
Release of documents
If an agency decides to provide access to relevant documents, it should explain how and when those documents will be provided to the applicant so the applicant understands when they can expect to receive the documents, and in what form.
Third party appeal rights
It is important to note any third party review rights, such as where third parties were consulted and they objected to the release of their information or they did not respond. This is because it will affect the timing for release of any documents to the applicant.
Where a third party is provided with review rights, an agency must make it clear in their decision letter that the applicant will not be entitled to access the relevant documents until after the 60 day third party appeal period ends. It should also be made clear to the applicant that if they are of the view that they will be unsatisfied by the decision, they should apply for a review by the Information Commissioner within 28 days rather than waiting for the release of the documents subject to the third party appeal period. This will preserve the applicant’s review rights while they wait for the third party appeal period to expire.
Review and complaint rights
If a decision is made to refuse access to a document in full or in part, section 27(1)(d) requires the applicant to be informed of their right to apply for a review of the decision to the Information Commissioner. The applicant must also be informed of the time frame in which an application for review must be made.
Section 27(1)(e) also requires an agency to inform an applicant of their right to complain to the Information Commissioner if the agency cannot locate a document, or a requested document does not exist.
Decision maker’s information
Section 27(1)(b) requires the name and position of the person making a decision to be included in a decision.
EXCEPTIONS TO PROVIDING CERTAIN INFORMATION
Section 27(2) outlines certain information that an agency does not have to include in a decision.
Exempt information
An agency does not have to include exempt information in a decision to an applicant (section 27(2)(a)). This may be particularly relevant when the mere description of documents or the explanation of the agency’s reasoning would reveal exempt information.
Confirming or denying whether certain documents exist
In some circumstances, confirming or denying the existence of a document may disclose exempt information. In those cases, you do not have to provide information that confirms or denies the existence of the relevant document (see sections 27(2)(ab), 27(2)(b) and 33(6)).
[1] Exceptions include ss 25A(1) and 25A(5), where you may refuse a request without searching for documents.
