Receiving an access request: valid requests and early considerations

OVERVIEW

This practice note provides an overview of steps an agency should take when it initially receives a request for documents. All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.

A VALID REQUEST

There are three requirements for a request to be valid under section 17:

The request must be in writing;
The request must provide sufficient information as is reasonably necessary to identify the documents requested; and
The request must include an application fee or a request for the fee to be reduced or waived.

PROVIDING OPTIONS TO MAKE A WRITTEN REQUEST

There are several ways an applicant can make a written request. For example, in person, by email, post or an online portal. At a minimum, Professional Standard 2.1 requires there to be an option for a request to be made by email.

Providing a proforma application form can also be a useful tool to guide an applicant to make a valid request. However, an agency cannot insist an applicant use a proforma application form; it can only be offered as an option (see Professional Standard 2.3).

If an applicant is unable to make a written request (for example, due to disability), an agency must provide them with reasonable assistance to make a written request.

THE APPLICATION FEE

The application fee is 2 fee units (section 17(2A)). The value of a fee unit is set by the Government and increases with indexation each year. Refer to the website of the Department of Treasury and Finance for the current value of a fee unit. Section 7(4) of the Monetary Units Act 2004 (Vic) provides that when calculating a fee provided for by an Act, that amount of the fee may be rounded to the nearest ten cents. This means that the application fee may be rounded to the nearest ten cents.

Waiving or reducing the application fee

Applicants may request a waiver or reduction of the application fee if payment would cause hardship to the applicant. This is generally considered to be financial hardship. An applicant should provide an agency with evidence that payment of the application fee would cause financial hardship. This might include a health care or concession card, a bank statement, or statutory declaration detailing the circumstances of their hardship. A request is not valid until the application fee has either been paid (whether in full or reduced) or waived by the agency. A policy should be developed in relation to waiving or reducing fees and consistently applied by agencies.

INTERPRETING A REQUEST

Applicants may not have detailed knowledge of the types of documents held by an agency, or how to accurately describe the document they are trying to access. If an applicant uses a word or term that has a common or ordinary meaning as well a technical, the ordinary meaning should be used unless it is clear the technical was intended.

Agencies should not take artificial or strained interpretations of the words used in a request for access, and the request should be read in the context in which it is made. Contextual information might include:

engagements with the applicant within the agency such as previous requests for access, employment, or complaints;
communications between the agency and applicant about their request or other matters; or
events related to the request either within the agency or broader community, for example, construction projects or contracts that impact on the applicant or community.

PROVIDING REASONABLE ASSISTANCE IF A REQUEST IS UNCLEAR, AMBIGUOUS OR OTHERWISE NOT VALID

Section 17(3) requires an agency to assist an applicant to make a valid request. Where a request does not provide sufficient information as is reasonably necessary to enable documents to be identified, an agency is required to provide an applicant with a reasonable opportunity to consult in order to make a request that provides sufficient information to identify documents (see section 17(4)).

The requirements of both sections 17(3) and 17(4) are further articulated in Professional Standard 2.4. This standard requires an agency to take reasonable steps to contact an applicant within 21 days of receiving a request that does not comply with section 17, and explain why the request is not valid.

The standard also requires reasonable assistance or advice be provided to an applicant on how to make their request valid, and to ensure the applicant is aware their request may be refused if they do not take steps to make the request valid.

Reasonable assistance or advice from an agency might include:

discussing with an applicant what document they seek in order to understand the subject matter, and assisting the applicant to articulate the terms of their request;
identifying opportunities to help the applicant be sufficiently clear about the documents sought. For example, asking them about the relevant time period or business areas within the agency to search;
providing advice on what types of documents the agency holds and where the information the applicant seeks might be located in other places;
directing an applicant to an appropriate agency that holds the documents sought;
advising an applicant about the application fee and how it can be paid; or
discussing what evidence is required in order to show payment of the application fee would cause the applicant financial hardship.

This process should also be used as an opportunity to narrow the scope of the request. For example, querying whether third party information such as names and phone numbers can be excluded from the request. This could save time and resources when processing the request.

FINALISING A REQUEST THAT IS NOT VALID

Where an applicant is provided with a notice pursuant to Professional Standard 2.4, they must be provided with a minimum of 21 days from the date of that notice to make the request valid, or begin consulting with the agency to clarify or amend their request (see Professional Standard 2.5).

After 21 days an agency may choose to refuse to comply with the request and finalise it in accordance with their processes or procedures.

WHEN A REQUEST IS VALID

If a request meets the requirements of section 17, processing of the request should begin as soon as possible. It is also useful to acknowledge the request, either verbally or in writing, so the applicant knows it has been received and what to expect next.

Clarified requests

If a request is clarified or revised following consultation with an applicant, it is good practice to advise the applicant in writing of:

the terms of the clarified request and the anticipated due date;
that the time for processing the request starts from the date the request was considered valid; and
that the processing time may be extended by up to 15 days if third party consultation is required.

Requests for personal records

If an applicant seeks access to personal records, proof of identity should be requested to ensure the records are provided to the correct person. Similarly, if an applicant requests personal records on behalf of someone else, ensure they have written authority to do so. Failure to provide proof of identity or authority doesn’t affect the validity of a request, but is a consideration when applying exemptions.

OTHER EARLY CONSIDERATIONS

Professional Standards 1.1 and 1.2 require an agency to actively consider whether the documents sought can be provided outside the Act. When a request is initially received:

consider whether the requested document or information is publicly available (for example, online or in an annual report), available for purchase or a fee, or available for inspection at the Public Record Office Victoria. If so, advise the applicant they can access the document without making a request;
if the requested document or information is not particularly sensitive, consider whether the document can be released informally;
if the request relates to a current legal matter and is time sensitive, consider suggesting the applicant use legal or court processes, such as a subpoena or summons; and
consider whether a request for information (rather than a specific document) can be satisfied with a verbal or written response containing the requested information.