Requests for documents that are obviously exempt – section 25A(5)
OVERVIEW
This practice note details considerations that must be taken into account before making a decision to refuse to grant access to documents under section 25A(5) of the Freedom of Information Act 1982 (Vic) (the Act). All legislative references are to the Act unless otherwise indicated.
The power in section 25A(5) to categorically refuse a request, where it is apparent from the face of the request that all documents are or would be exempt, is only available in limited circumstances.
Agencies must engage with applicants with a view to assisting them to rescope their request so as to avoid the need to rely on section 25A(5) and allow a request to be processed in the usual way under the Act.
WHEN DOES SECTION 25A(5) APPLY?
Section 25A(5) allows a request to be refused where it is apparent from the nature of the documents, as described in the request, that:
- all of the documents are or would be exempt under Part IV of the Act; and
- there is no obligation under section 25 for the decision maker to grant access to an edited copy of any of the documents, or that the applicant does not wish to receive an edited copy of the documents.
INTERPRETING SECTION 25A(5) CONSISTENTLY WITH THE OBJECT OF THE ACT
The object of the Act is to extend, as far as possible, the right of the community to access information in the possession of Victorian government agencies and Ministers.[1]
The Act creates a general right for any person to access information in the possession of a Victorian agency or Minister. Limited exceptions and exemptions may apply where non-disclosure is necessary to protect an essential public interest, personal privacy or sensitive commercial information of a business or government.[2]
Parliament’s intention is the Act must be interpreted so as to further the object of the Act and that any discretion available to a decision maker under the Act be exercised so as to facilitate and promote the disclosure of information promptly and at the lowest reasonable cost.[3]
SUPREME COURT DECISION ON SECTION 25A(5)
A decision of the Supreme Court of Victoria provides the most authoritative statement on the proper interpretation and use of s 25A(5).[4]
The applicant sought access to documents that concerned him and agreed to receive an edited copy with any exempt information deleted in accordance with section 25.
The agency refused the request under section 25A(5) on the basis it was apparent from the face of the request that all of the documents would be exempt.
The Court referred to section 25A(5) as a ‘carefully circumscribed power’, adding:
… in the clear and limited category to which it is meant to apply, this power permits the request to be categorically refused consistently with the purposes of the legislation in s 3(1) and the requirements of ss 3(2) and 16(1).
The Court confirmed section 25A(5) can only be relied on to refuse access to documents when the following two elements are satisfied:
- firstly, it is objectively apparent from the nature of the documents, as described in the request, that all of the documents would be exempt; and
- secondly, it would not be reasonably practicable to provide access to any of the documents in edited form, with exempt information deleted under section 25, or the applicant does not agree to receive an edited copy of the documents.
FIRST ELEMENT – ALL DOCUMENTS MUST BE OBVIOUSLY EXEMPT
In relation the first element, the Court held the nature of the documents means ‘nature’ in terms of ‘the inherent or essential quality and character of the documents’, as described in the request. This means there is no requirement for the decision maker to go behind the description of the documents in the request.
Example
An example of where it would be objectively apparent from the face of a request the documents sought would be exempt is a request for access to Cabinet submissions submitted to and considered by Cabinet.
All such documents would be likely to be exempt under the Cabinet exemption in section 28(1). In such circumstances, the request could be refused under section 25A(5) if it was not reasonably practicable to provide access to any of the documents in edited form or the applicant does not agree to receive an edited copy of the documents.
SECOND ELEMENT – NO SCOPE TO PROVIDE AN EDITED COPY OF ANY DOCUMENT
In relation to the second element, the Court held it must be objectively apparent from the nature of the documents, as described in the request, that no obligation arises under section 25 to provide the applicant with an edited copy of any document sought. If an obligation exists under section 25 for a decision maker to provide access to an edited copy of just one document, section 25A(5) will not apply.
SECTION 25 – PROVIDING ACCESS TO EDITED COPIES OF DOCUMENTS
Section 25 provides that an agency or Minister must grant access to an edited copy of a document with irrelevant or exempt information deleted where:
- it is practicable for the agency or Minister to grant access to the document with the exempt or irrelevant material deleted; and
- it appears from the request, or the applicant later indicates, that they agree to have access to an edited copy of the documents sought.
The Court held a narrow or arbitrary view of what is ‘practicable’ is not consistent with the purpose of section 25 or, sections 3 and 16:
Where it is reasonably practicable, in all the circumstances, for the decision maker to give the applicant access to a non-exempt copy of a document by deleting the exempt matter, it is obliged to do so under s 25 of the Act. That will mean creating a redacted copy of the document, which will not be exempt under the Act.
Example
Where a request seeks access to correspondence and reports, including correspondence sent between the applicant and the agency in relation to an investigation – the correspondence is unlikely to be subject to an exemption or, at the very least, section 25 will require the decision maker to provide access to an edited copy of the correspondence with any exempt information removed.
Similarly, if the reports quote information provided by the applicant (for example, information provided by the applicant at an interview), such information is also unlikely to be exempt and section 25 will require the decision maker to provide an edited copy of the report to the applicant.
HOW CAN AN APPLICANT SCOPE AN FOI REQUEST TO AVOID SECTION 25A(5)?
Agencies should encourage applicants to carefully consider the specific type of documents they would like to access with a view to being able to frame their request in such a way as to avoid requesting documents that would, by their nature, be obviously exempt from the face of the request.
For example, an applicant, who seeks access to documents concerning a workplace investigation in which they were involved or were interviewed, could frame their access request by seeking ‘an edited copy of all investigation documents concerning me with any personal information relating to other persons deleted from the documents in accordance with section 25 of the FOI Act’.
HOW SHOULD A DECISION MAKER APPROACH SECTION 25A(5)?
The Act requires agencies to administer the Act with a view to making the maximum amount of information promptly and inexpensively available to the public.[5] It also encourages agencies and Ministers to publish or provide access to documents outside the Act, where it is appropriate to do so, despite the availability of an exception or exemption.[6] Professional Standards 1.1 and 1.2 also require agencies to consider whether requested documents can be provided outside the Act.
Before relying on section 25A(5), a decision maker should ensure their decision is consistent with the object of the Act.
The power under section 25A(5) to categorically refuse an access request enables an agency to refuse to grant access to documents without identifying if any relevant documents exist or assessing any relevant documents. This prevents a request from being processed in the usual way, and significantly limits a person’s general right to access information and prevents an applicant from knowing how many documents exist, or even whether any relevant documents exist.
REQUIREMENT TO AFFORD PROCEDURAL FAIRNESS
The rules of procedural fairness require a decision maker to give a person an opportunity to respond before making an adverse decision affecting their rights or interests.
Agencies and Ministers should engage with applicants at an early stage with a view to assisting them to rescope their request so as to avoid the possible use of section 25A(5). This is despite the absence of an express requirement to do so under the Act.
This constructive approach again reflects the object and purpose of the Act and accords with the approach an agency or Minister is required to take under section 17 to assist an applicant to make a valid request.
Procedural fairness also requires that a decision maker bring an impartial and objective mind to the task at hand and not prejudge a decision. Decision makers should ensure they rely on section 25A(5) where it is objectively apparent on the face of a request that all of the documents would be exempt, and there is no obligation to provide an edited copy of any of the documents in accordance with section 25.
REVIEW OF DECISIONS MADE UNDER SECTION 25A(5)
In relation to the task of conducting a review of a decision to refuse an access request under section 25A(5), the Supreme Court has stated ‘the function of the tribunal is to make the correct or preferable decision on the merits’. While the Court’s comments were made in the context of a merits review by Victorian Civil and Administrative Tribunal, they apply equally to a review conducted by the Information Commissioner or the Public Access Deputy Commissioner (Commissioners) under section 49F.
In making a fresh decision under section 49P, the Commissioners will closely consider the nature of the documents requested and the terms of the request in order to ensure both the first and second elements in section 25A(5) are satisfied.
The Commissioners will also consider whether third party information would likely be included in the documents, whether it would be practicable to consult with those third parties about disclosure of their personal information in the documents, and whether their consent to disclosure would likely mean the documents would not be obviously exempt.
INSTANCES WHEN SECTION 25A(5) IS UNLIKELY TO APPLY
Specifically, the Commissioners have determined section 25A(5) is unlikely to apply when:
- a decision maker grants access to some of the requested documents, or part of a requested document;
- a request seeks access to multiple categories of documents, not all of which are obviously exempt on the face of the request;
- a request seeks access to documents concerning the applicant, including correspondence that was sent or received by the applicant and that would not be exempt; or
- the applicant indicates in their request, or through consultation, they are willing to accept an edited copy of the documents and an edited copy of one or more documents could be provided.
This approach reflects the proper interpretation of section 25A(5) and is consistent with the object of the Act.
Example
An applicant’s request for a complete workplace investigation file concerning their conduct may include correspondence sent to and from the applicant.
In such circumstances, it would not be possible for a decision maker to determine from the face of the request alone the nature of all documents sought would be obviously exempt and that no requirement exists under section 25 to provide an edited copy of one or more of the documents.
For instance, section 25A(5) could not be relied on if:
- the correspondence included letters or emails sent or received by the applicant, as such documents are unlikely to be exempt; or
- the report would contain purely factual information that would not be subject to an exemption under section 30(1) and no other exemption would apply.
COOPERATION IN THE CONDUCT OF REVIEWS
The Commissioners rely on the cooperation of agencies and Ministers in order to conduct reviews in a timely and efficient manner and with as little formality and technicality as possible.
If necessary, the Information Commissioner will request a decision maker to provide any contextual information necessary to understand the nature of the documents requested in a general sense in order to ascertain whether the power in section 25A(5) applies.
The Commissioners may also request a decision maker provide reasons why they believe it is not practicable to edit any of the documents under section 25, and to confirm whether the applicant was consulted about whether they agree to receive an edited copy of the documents.
Finally, during the course of a review, an agency or Minister may reconsider their initial decision and determine to make a fresh decision that a request be processed in the usual way under the Act.
Further information of the review process is available in Practice Note 17: How to assist the freedom of information review process.
[1] Section 3(1).
[2] Section 3(1)(b).
[3] Section 3(2).
[4] Knight v Corrections Victoria [2010] VSC 338.
[5] Section 16(1).
[6] Section 16(2).
