Irrelevant and exempt information under section 25

OVERVIEW

This practice note considers when information is irrelevant, whether the deletion of irrelevant or exempt material is practicable, and other relevant considerations under section 25 of the Freedom of Information Act 1982 (Vic) (the Act). All legislative references are to the Act unless otherwise stated.

WHAT DOES SECTION 25 ALLOW

Section 25 permits an agency to delete irrelevant and exempt material from a document falling within the terms of an applicant’s request. Access must be granted to an edited document when the following three conditions are satisfied:

1. a decision is made to refuse access to a document as the document contains exempt information or information that would be reasonably regarded as irrelevant to the request; and
2. it is practicable to grant access to an edited copy of the document with irrelevant and exempt information deleted; and
3. it appears from the request, or the applicant subsequently indicates, they would like access to an edited copy of the documents.

In summary, section 25 permits an agency, if it is practicable to do so and the applicant is agreeable, to release of an edited copy of a document with any information that either falls outside the scope of the applicant’s request or is exempt, to be deleted from the document. Alternatively, if it is not practicable to provide an edited copy of the document, or the applicant is not agreeable to receiving an edited copy, the agency is permitted to refuse access to the document in full.

IRRELEVANT INFORMATION

Section 25 refers to information that ‘would reasonably be regarded as irrelevant’. Irrelevant information is that which is clearly outside the scope, or beyond the terms of the applicant’s request. This assessment involves an agency considering the overall context in the which the request is made, and an appreciation that an applicant cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or the inner workings of government.

In many instances, an applicant will not know the types of documents or information held by an agency, or how to describe the documents they seek. This requires an agency to refrain from taking any artificial or strained interpretation of the words used in a request, and to interpret the request beneficially when considering whether information is or is not irrelevant.

Some common circumstances where information is generally considered irrelevant to a request include:

• information that an applicant specifically agrees to exclude from the scope of a request;
• information added to document after a request is received, for example printing or email headers;
• documents created after a request is received; and
• a document falling outside a specified date range requested by an applicant.

PRACTICABILITY OF EDITING

The term ‘practicable’ is not defined in the Act. The definition in the Macquarie Dictionary defines ‘practicable’ as ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’. The Oxford English Dictionary definition is ‘capable of being put into practice, carried out in action, effected, accomplished or done; feasible’.

The Victorian Civil and Administrative Tribunal has noted that determining what is ‘practicable’ requires consideration of:

• the effort and editing involved in making the deletions ‘from a resources point of view’¹– that is, can the editing be done, and does the agency have the resources to edit the document; and
• the effectiveness of the deletions – where deletions would render the document meaningless or unintelligible, they are not ‘practicable’, and release of the document is not required under section 25.²

When considering the practicability of deleting exempt or irrelevant information, an agency may consider asking the following types of questions:

• Is editing or deleting information capable of being carried out?
• Is it possible to edit the document without deleting so much information that it would render the document meaningless, unintelligible, misleading, or lead to unnecessary or unreasonable speculation as to what is missing?
• What is the nature and extent of the work involved in deciding on and making the deletions to the document?

CONSULTATION WITH APPLICANT

An agency should always consider whether it is appropriate to engage with an applicant at an early stage with a view to narrowing the scope of a request. In certain instances, an applicant may be agreeable to excluding certain information, for example, the personal information of third parties. If the applicant agrees, the excluded information becomes irrelevant.

AGREEMENT OF THE APPLICANT

In many instances, an applicant would prefer to receive a copy of a document with irrelevant or exempt information deleted, as opposed to not receiving any information at all. Where an applicant expresses no view as to receiving an edited document, and the document would objectively retain some meaning after editing, agencies are encouraged to provide access. If an applicant’s request is silent on whether they wish to receive a copy of the document with exempt or irrelevant material deleted, the agency should consult with the applicant to check whether they would be agreeable to receiving an edited copy.

1. Mickelburough v Victoria Police (General) [2009] VCAT 2786 [31]; The Herald and Weekly Times Pty Ltd v The Office of the Premier (General) [2012] VCAT 967 at [82].
2. Honeywood v Department of Human Services [2006] VCAT 2048 [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140], [155].