Practicability and third party consultation and notification

OVERVIEW

This practice note provides an overview of third party consultation and notification requirements when agencies and Ministers are considering the application of certain exemptions, as well the concept of ‘practicable’ in the Freedom of Information Act 1982 (Vic).

All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.

When considering the application of the exemptions in sections 29, 29A, 31, 31A, 33, 34 or 35, an agency must consult with relevant third parties (including, where relevant, a deceased person’s next of kin) to obtain their views on the disclosure of a document or information where their personal or business interests will be impacted.

Third party consultation is only required in circumstances where it is practicable to undertake. When considering sections 33 and 35, additional exceptions to the requirement to undertake third party consultation exist, including circumstances involving family violence or would endanger the life of or cause distress to a person.

The fact an agency does not propose to grant access to a document will not be sufficient reason alone not to consult with a third party. There will need to be other factors upon which the agency determines consultation is not practicable, as outlined in the examples above.

DETERMINING IF CONSULTATION IS PRACTICABLE

The term ‘practicable’ is not defined in the Act. Therefore, an agency should apply common sense considerations to be applied when determining if third party consultation is practicable.

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’.

An agency must exercise its reasonable and fair judgement and consider the particular circumstances of a matter, including, but not limited to, the nature of the information or documents under consideration and the resources and capacity of the agency.

It is worth noting, where consultation is possible, it does not necessarily mean it is practicable. In such circumstances, an agency may need to consider a number of relevant factors to determine whether consultation is reasonable or required. For example, where a 15 year old document contains the names and contact details of 20 individuals, it is unlikely to be practicable for the agency to undertake consultation having regard to the age of the document, information no longer being current or sensitive, and the likelihood the third parties would reasonably consent or not object to the disclosure of their names.

In some circumstances, an agency may need to only consult with certain individuals with whom consultation is practicable.

Professional Standard 7.1 outlines some factors that may be relevant in determining whether consultation is practicable. The standard does not provide an exhaustive list, and an agency should take any other relevant matter into consideration when determining whether consultation with a third party is practicable in the circumstances.

Factors outlined in Professional Standard 7.1 include:

• The likelihood a third party will not consent to disclosure of information or a document – if an agency forms a view that a third party would be reasonably unlikely to consent to the release of information or a document under any circumstances (e.g. a victim of crime where the applicant is the perpetrator), it is open to an agency to conclude consultation is not practicable.
• The age of the information or a document – if the information or a document is historical or no longer current, it will be open to an agency to conclude consultation is not practicable. Particularly where the contact details for a third party would no longer be current or would not be easily ascertainable by an agency. Where any sensitivity about information or a document has diminished due to the passage of time, an agency may determine consultation is not practicable given the reasonable likelihood a third party would consent or not object to the disclosure of their name.
• The number of third parties to be notified – where the number of third parties to be notified is disproportionate to an agency’s size, resources and capacity to undertake consultation, it will be open to an agency to conclude consultation is not practicable. For example, where a document contains the names and contact details of 100 individuals who would need to be contacted separately. However, where the individuals are employees of the agency and could be easily contacted by email or other means (e.g. using mail merge), it would be open to the agency to conclude consultation is practicable.
• Whether the agency has, or is reasonably able to ascertain, current contact details for a third party –
  if the address, phone number, or email of a third party are out of date and cannot be reasonably ascertained (e.g. after searching online business registries or the White Pages), an agency may determine consultation is not practicable.

Where consultation is not practicable, Professional Standard 7.2 requires a record to be kept that details the reasons. A record is not required to specify each third party and can be general in nature. For example, a 30 year old document containing the names of 15 individuals. If the contact details of those individuals cannot be found, an agency might record generally, that consultation was not practicable with any individual as contact details could not be found.

OTHER EXCEPTIONS TO CONSULTATION

An agency must also give regard to the nature of the information or documents under consideration and the potential likelihood for disclosure to cause a third party physical or psychological harm.

The exemptions in sections 33 and 35 outline additional circumstances where consultation is not required when considering the application of those particular exemptions. It is not required if:

• consultation with the third party is reasonably likely to:
  • endanger the life or physical safety of the third party; or
  • cause the third party undue distress;
  • increase the risk to the third party’s safety from family violence; or
• consultation is otherwise unreasonable in the circumstances.

Examples of when it may be unreasonable to consult include where:

• there is a risk of harm, distress or anxiety to a person other than the third party (e.g. the applicant).
• the person to be consulted does not have the capacity to consent; or
• it is not appropriate to consult with a guardian or next of kin.

UNDERTAKING CONSULTATION BEFORE MAKING A DECISION

Depending on the exemption under consideration, the third party may be a government agency or statutory authority, a business undertaking (e.g. a private company or organisation), or an individual.

Consultation requires a third party to be notified of the request, and for the agency to seek their views on whether the document should be released and, if not, the reasons non-disclosure should occur.

When considering the exemptions in sections 33, 34 or 35, a third party must also be advised that, if they consent to the release of all or part of a document, they will not be entitled to ask the Victorian Civil and Administrative Tribunal (VCAT) to review the decision to release that material.

Consultation

Consultation may occur in any manner or form. This might include by telephone, email, post, or a meeting.

When undertaking consultation, a third party should be made aware of the applicable exemption and what must be established in order to make out the exemption. This will enable a third party to provide an informed response, and in circumstances where they object to release, explain their reasons. If a third party objects to disclosure, they should be encouraged to provide the reasons for their view.

Providing a third party with a copy of the requested information or document can also assist a them to make a more informed decision. Any information that is irrelevant to the third party or otherwise exempt under the Act should be deleted prior to the document being provided for consultation purposes.

A third party should be informed their views on disclosure are not determinative to a final decision as to whether or not disclosure should occur, as a third party does not have the ability to veto disclosure.

The views of a third party are only one consideration along with all other relevant considerations, including the object of the Act to make available to applicants the maximum amount of information possible subject to limited exceptions and exemptions required to protect essential public, private and business interests.

Where consultation is routine or common with a particular third party, it may be appropriate to consider whether there are ways to expedite the consultation process. For example, an agency might agree in advance on a protocol for consultation, which governs matters upon which third parties will be consulted.

However, when developing such protocols, care must be taken to note that each request turns on its particular circumstances and attention must be given to each request.

Timeframe for consultation

Where third party consultation is undertaken, the timeframe for making a decision can be extended by up to 15 calendar days.[1]

A third party should be given a reasonable timeframe to provide their views. However, if they fail to provide their views within a reasonable timeframe, an agency is not required to wait before making a decision.

What constitutes a ‘reasonable’ timeframe for consultation will depend on the circumstances, including the number of documents, the nature of the information and the complexity of the issues involved. As the Act only allows for an extension of 15 days when undertaking third party consultation, it may be reasonable to allow approximately 15 days for consultation to occur.

If a response is not received within the specified timeframe, an agency should make a decision on the basis the third party has not consented to disclosure. As stated above, this should not be interpreted as a basis for non-disclosure, but one consideration along with all other relevant considerations.

Privacy considerations

The provisions in the Act do not specify what information to provide a third party when undertaking consultation. It may be necessary for a third party to know the identity of the applicant in order to decide whether to consent to release of a document, and how to frame any specific objections.

An agency should consider its obligations under the Privacy and Data Protection Act 2014 (Vic) (PDP Act) when disclosing an applicant’s identity to a third party.

In particular, Information Privacy Principle (IPP) 2.1 in Schedule 1 of the PDP Act allows personal information, such as the name of an applicant, to be disclosed for the primary purpose for which it was collected only, unless an exception applies. Some exceptions include where:

• the disclosure is for a related secondary purpose the applicant would reasonably expect – IPP 2.1(a); or
• the applicant consents to the disclosure of their name – IPP 2.1(b).

Prior to disclosing the name of an applicant to a third party for the purposes of undertaking consultation, an agency should ensure it is satisfied it has consent or authority to do so.

For more information about IPP 2, refer to the Guidelines to the Information Privacy Principles.

Recording consultation

Where consultation is undertaken, Professional Standard 7.3 requires a record of the following to be kept:

• who was notified;
• whether the third party did or did not respond to the consultation;
• if the third party responded, whether they consented or objected to release; and
• where provided, the third party’s reasons for objecting.

A record might include a file note, or an exchange of emails or letters.

NOTIFICATION AFTER MAKING A DECISION

If a decision is made to release all or part a document, following consultation in accordance with sections 33, 34 or 35, any third party that objected to the release must be notified of their right to seek a review by VCAT of the agency’s decision.

The applicant should also be advised the document will only be released at the end of a third party’s 60 day review period, which begins on the day the third party is notified of the decision.

There is no requirement to notify a third party that consented to the release, provided the decision reflects release of the information or document, as agreed by the third party.

[1] For further information on extensions of time see Practice Note 8: Timeframes and extensions of time when processing an access request.