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Substantial and unreasonable requests – section 25A(1)

OVERVIEW

Section 25A(1) of the Freedom of Information Act 1982 (Vic) (the Act) allows an agency or Minister to refuse to process a request that would involve a substantial and unreasonable diversion of an agency’s resources or a substantial and unreasonable interference with a Minister’s functions. This type of request is commonly known as a ‘voluminous request’, although this term is not used in the Act.

This practice note outlines the steps involved before an agency or Minister may apply section 25A(1). All legislative references are to the Act unless otherwise stated.

INTERPRETING SECTION 25A(1) 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 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]

WHAT IS A ‘VOLUMINOUS REQUEST’?

There is no ‘magic figure’ for what number of documents will constitute a ‘voluminous request’. It will depend on the facts of each case. The requirements of section 25A(1) are not easily satisfied.[4]

Section 25A(1) provides an agency or Minister may refuse to grant access to documents without processing a request if satisfied the work involved:

  • in the case of an agency, would substantially and unreasonably divert the agency’s resources from its other operations; or
  • in the case of a Minister, would substantially and unreasonably interfere with the performance of the Minister’s functions.

The purpose of section 25A in relation to an agency’s functions was described in Secretary, Department of Treasury and Finance v Kelly:[5]

… it is plain enough that s. 25A was introduced to overcome the mischief that occurs when an agency’s resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. The emphasis of the amendment was on the prevention of improper diversion of the agency’s resources from their other operations. The provision was introduced to strike a balance between the object of the Act … and the need to ensure that the requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of the government through its agencies.

An agency that refuses access under section 25A(1) bears the onus of establishing the requirements of the section have been met.[6] The Victorian Civil and Administrative Tribunal (the Tribunal) and the courts will strictly uphold the requirements of section 25A, particularly the consultation requirement under section 25A(6). Section 25A(1) should only be applied to ‘a clear case’ of substantial and unreasonable diversion.[7]

STEPS TO TAKE IN APPLYING SECTION 25A(1)

There are four steps a decision maker must take in applying section 25A(1):

Step 1: Determine if the request is valid – if not, section 25A(1) cannot apply;

Step 2: Assess the request under section 25A(1);

Step 3: Consult with the applicant;

Step 4: Decide.

Each of these is discussed below.

STEP 1: DETERMINE IF THE REQUEST IS VALID

A decision maker must determine if a request is valid before considering section 25A(1). Under section 17, a valid request must:

  • be in writing;
  • be accompanied by the application fee (unless waived or reduced for hardship);
  • provide information reasonably necessary to enable the agency to identify the documents sought.

It is only after a request has been determined to be valid that a decision maker should consider whether section 25A(1) should be applied. See Practice Note 3 for detailed information on valid requests.

A voluminous request differs from an invalid request in that it is clear to the decision maker which documents are sought, but the decision maker is satisfied that processing the request would substantially and unreasonably divert the agency’s resources from its other operations (or in the case of a Minister, would substantially and unreasonably interfere with the Minister’s functions).

In practice, however, considerations under sections 17 and 25A(1) about the scope of a request overlap and it is never too early to start consulting with an applicant in light of the 30 day processing time.

If a request appears to be unclear or too large to be able to be processed (for example if the request refers to all documents relating to a broad subject), an agency or Minister must promptly contact the applicant to help them clarify their request. Agencies have a positive duty to help applicants to make requests that comply with the requirements of the FOI Act (section 17(3) and Professional Standards 2.4 and 2.5). This can be done, for example, by:

  • consulting with the applicant;
  • obtaining information from the relevant operational areas about the types of documents sought;
  • asking the applicant for more information about what documents they are seeking;
  • suggesting that duplicate documents, draft documents or documents that are clearly exempt (such as Cabinet submissions and documents covered by a secrecy provision) are excluded from the scope of the request.

The agency or Minister should keep records of any discussions with the applicant and should ask the applicant to confirm the terms of a revised request in writing (e.g. by email). Care should be taken to ensure any revised request will not still be too broad to be processed. Consulting at an early stage will often avoid the need to follow the formal process under sections 25A(1) and 25A(6).

STEP 2: ASSESS THE REQUEST UNDER SECTION 25A(1)

Agencies are required to administer the Act with a view to making the maximum amount of information promptly and inexpensively available to the public.[8] The Act and Professional Standards 1.1 and 1.2 also encourage agencies 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.[9]

Once a request has been determined to be valid, the application of section 25A(1) may be considered.

The Act specifies certain factors must be taken into account and other factors must be disregarded in estimating the resources needed to process a request. Section 25A(2) states resources to be considered include those needed in:

  • identifying, locating or collating the documents in the agency’s or Minister’s filing systems;
  • deciding whether to grant, refuse or defer access to the documents or edited copies of the documents, including resources for examining the documents or undertaking consultation;
  • making copies or edited copies of the documents;
  • notifying the applicant of an interim or final decision.

The fact a request would involve a large number of documents is not determinative if the documents can be easily identified, collated and assessed.

Sections 25A(3) and 25A(4) state an agency or Minister must not have regard to:

  • any maximum amount that may be charged for processing the request; or
  • any reasons given by an applicant for making the request, or any belief as to the reasons why the request was made.

The resources to be considered are those the agency or Minister reasonably requires to process the request while attending to their other operations. The agency’s ‘other operations’ in section 25A(1)(a) include the processing of other requests under the Act.

An agency or Minister is not required to consider obtaining external assistance to process the request, such as by hiring IT consultants to carry out substantial work before electronic documents may be accessed.

The Tribunal has also stated section 25A(1) requires consideration of ‘the capacity of the agency overall to process the request, not the capacity of the FOI unit of the agency’.

An agency or Minister cannot avoid their statutory duty by deliberately withholding resources or deliberately failing to provide proper resources for the FOI function.[10] Professional Standard 9.1(a) requires a principal officer of an agency to ensure their agency is sufficiently resourced to receive and process requests.

If the processing of requests is regularly constrained by the level of resourcing allocated to FOI, the agency or Minister must review the adequacy of its resourcing.

Estimating the resources

It is not necessary to compile a full list of all relevant documents or to calculate exactly how many resources would be needed to process a request.

The Tribunal observed in McIntosh v Victoria Police:[11]

Estimates only are acceptable, as to ensure precision would mean the agency would have to do the very work that section 25A is designed to prevent.

The onus is on the agency or Minister to establish their estimate is reasonable. An accurate estimate can be obtained through sampling a reasonable selection of representative files as an indication of the time and resources that would be required to process the request.

A person with appropriate expertise should assess the sample documents, considering each document briefly as if they were making a decision on access. The assessment should indicate the complexity of the potential decision, that is, it should identify:

  • the content of the documents;
  • the number and range of possible exemptions; and
  • the extent of consultations required, and the time needed to obtain all third parties’ contact details.

The sample must be reasonably representative and be assessed by an appropriate officer. For example, the Tribunal has criticised an estimate based on a random sample of 21 files out of a list of 2600 relevant files, of which only 10 were examined by an inexperienced officer.[12]

In another matter, the Tribunal did not accept the agency’s estimate of 5½ weeks full time work and 5½ weeks part-time, saying the task was ‘nowhere near as complicated’ as was claimed.[13]

In a third case, the Tribunal referred to the agency’s estimate of approximately 55 hours of processing time and concluded the agency ‘had not grappled with the question of what time and resources would reasonably be involved’ and there was ‘no credible evidence of a large or unreasonable workload’ being generated by the request.[14]

The estimate should also include the time that would be taken for the other steps in processing the request (including those set out in section 25A(2), such as making copies of documents to be released). An anticipated high number of internal inquiries from agency staff due to the sensitive nature of a request has been held to be irrelevant, on the basis that:

They are issues which surround any freedom of information application to any government agency. Addressing these concerns is a core function of any FOI office.[15]

Once the estimate of resources has been made, the agency or Minister must be satisfied that the diversion of the agency’s resources (or the interference with the Minister’s functions) is both substantial and unreasonable.

Whether the diversion of resources would be substantial

‘Substantial’ has been interpreted to mean the diversion of resources must be more than merely nominal.[16]

Each case must be determined on an individual basis. What is substantial for one agency may not be for another. Factors that may be relevant to determining whether the diversion of resources would be substantial may include:

  • the nature and size of the agency;
  • the level of resourcing allocated to FOI processing;
  • the number of other FOI requests on hand in the agency, and whether requests received are increasing or decreasing; or
  • the number of employees who would be able to help process the request, and their other responsibilities.

For example, it may be relevant to consider, in the case of a request to a Minister, whether the Minister can obtain help from an agency and whether the specialist attention of the Minister or a senior officer is needed. In the case of a request to an agency, it would be relevant to consider whether the work can only be undertaken by one specialist officer who has competing responsibilities.

Whether the diversion of resources would be unreasonable

Determining whether the diversion of resources would be unreasonable involves balancing the estimated impact on the agency or Minister of processing the request against the object of the FOI Act, which is to extend as far as possible the community’s right to access to information held by government.[17] It is not necessary to show the extent of unreasonableness is overwhelming.[18] All the facts and circumstances of the particular matter should be considered.

In The Age Company Pty Ltd v CenITex (the CenITex decision),[19] the Tribunal set out factors to be considered in deciding whether the diversion of an agency’s resources would be unreasonable:

  • whether the terms of the request are sufficiently precise to allow the agency to locate the documents within a reasonable time and with reasonable effort;
  • the public interest in disclosure of the documents;[20]
  • whether the request is a reasonably manageable one, giving due but not conclusive regard to the size of the agency and the extent of its resources usually available for dealing with FOI requests;
  • the estimated number of documents covered by the request, the number of pages and the amount of officer time and salary cost;
  • the reasonableness of the agency’s initial assessment and whether the applicant had taken a co-operative approach in revising the application;[21]
  • the time limit for making a decision;
  • the degree of certainty that can be attached to the estimates of documents and processing time, and whether there is a real possibility that the processing time may exceed the estimate;
  • whether the applicant is a repeat FOI applicant.

In relation to the last factor, more is required than the person has previously made an FOI request. In Cainfrano v Director General, Premier’s Department (Cianfrano decision), the NSW Administrative Decisions Tribunal stated whether a person was a repeat applicant was only a possible factor to consider in relation to applications of the same kind and the extent to which previous applications may have adequately met the present application.[22]

In the CenITex decision,[23] which drew on the Cianfrano decision, the Tribunal commented that the fact the applicant, which was a media organisation, was a repeat FOI applicant had ‘no bearing on the decision’. Major newspapers could be expected to ‘use FOI as part of their investigative journalism toolkit’, and members of the Opposition also tend to use FOI repeatedly.

In balancing the impact of processing a request on an agency or Minister with the general right of the community to access information, it may also be relevant to consider the steps an agency or Minister has already taken to inform the public about the subject matter of the request.[24] The nature of the agency’s activities may also be significant.[25]

Examples of decisions are set out below. While there is no threshold number of hours beyond which processing a request would be upheld as substantial and unreasonable, most Tribunal decisions have upheld section 25A(1) decisions where processing would take hundreds of hours. Each Tribunal decision was made in the context of the size of the agency and its available resources.

  • A decision to refuse to process two applications that would include examining more than 1 million emails from a 33 month period was upheld. The agency had not historically had many FOI requests and its general operations did not appear to warrant more than one FOI officer.[26]
  • A decision was upheld based on an estimate of the time of a departmental FOI Unit of approximately 170 hours, substantial time of a school principal and some time of other areas of the department.[27] The request was very detailed and similar in scope to the applicant’s previous request arising from the same circumstances.
  • A decision was upheld based on an estimate that processing approximately 1000 pages of printed e-mails would take 160 hours.[28]
  • A decision was upheld based on a Tribunal estimate of 90 hours rather than the 400 hours claimed by the agency. The Tribunal commented the unreasonableness was ‘closely related to the resources’ the agency had allocated over many years to dealing with the applicant’s many requests, and suggested that 90 hours was below the ‘low end’ of what would generally be considered unreasonable.[29] The Tribunal was satisfied in the particular circumstances of the case the diversion of resources to process the request was both substantial and unreasonable.

The following are examples of review decisions made by the Information Commissioner and the Public Access Deputy Commissioner (the Commissioners):

  • An agency determined that processing a request would be a substantial and unreasonable diversion of its resources. Whilst the agency provided the applicant with the opportunity to consult, the applicant did not cooperate. The Commissioner accepted the agency’s estimate of up to 90 hours. Other factors included the resources available to the agency where only one officer was available to process the request but that officer was also required to undertake other significant duties. There was no wider public interest in disclosure of the documents sought. In addition, the Applicant had previously made 45 requests to the Agency over a number of years. The Commissioner was satisfied processing the request would be a substantial and unreasonable diversion of the agency’s resources.
  • An agency determined that processing a request would be a substantial and unreasonable diversion of its resources after the applicant had refused to rescope the request during consultation. The agency estimated contents of hard copy files of over 1000 pages. Separate email searches would also be necessary. The estimated time to process was three months. While the Agency FOI unit had six staff, the number of other requests at the time of this request was significant and 16 were overdue. There was no wider public interest in disclosure of the documents sought. The Commissioner was satisfied processing the request would be a substantial and unreasonable diversion of the Agency’s resources.

Review decision made by the Commissioners are published on OVIC’s website and provide an authoritative summary of the considerations involved.

Multiple requests

In determining if section 25A(1) applies, multiple requests may, in certain circumstances, be characterised as a single request.[30]  There must be a clear connection between the requests, evidenced by such factors as:

  • whether the multiple requests are made by or on behalf of the same person;
  • whether the multiple requests seek documents that concern the same subject matter;
  • whether the requests were lodged at or about the same time; or
  • whether to do otherwise would be to allow the application and operation intended by section 25A(1) to be evaded (that is, to overcome the mischief that occurs when an agency’s resources are substantially and unreasonably diverted from its core operations).[31]

The above list of factors is not exhaustive, and not all of them need to exist to enable the requests to be treated as one request for the purposes of section 25A(1).

An example of where multiple requests can be treated as a single request is where a series of requests, lodged at the same time, relate to the same subject matter for different time periods, for example, for documents covering consecutive months or years.

Where multiple requests from different applicants are treated as a single request, the agency or Minister must follow the request consultation process with each applicant.

Partial requests

An agency or Minister cannot apply section 25A(1) to part of a request only and determine to process the remaining part of the request.[32]

If the request comprises several parts, the agency or Minister should advise the applicant the parts that would be able to be processed, so the applicant can consider not pursuing those parts that would otherwise bring section 25A(1) into operation.

STEP 3: CONSULT WITH THE APPLICANT

An agency or Minister cannot decide to refuse a request under section 25A(1) without first giving the applicant a reasonable opportunity to rescope or narrow their request to remove the proposed ground for refusal.

Under section 25A(6) and Professional Standard 5.2, the agency or Minister must:

  • give the applicant a written notice:
    • stating an intention to refuse access;
    • inviting the applicant to consult with an identified agency officer or member of the Minister’s staff with a view to making the request in a form that would be able to be processed; and
    • explaining to the applicant why the request would substantially and unreasonably divert the resources of the agency from its other operations;
  • give the applicant a reasonable opportunity to consult; and
  • as far as is reasonably practicable, give the applicant any information or suggestions that would assist them to make a reasonable request.

The 30 day statutory processing time is suspended from the date an applicant is given notice under section 25A(6) of an agency of Minister’s intention to refuse the request until the date the applicant confirms or amends the terms of their request.[33] For this reason it is important to give an applicant a notice under section 25A(6) as soon as possible after a request is received in order to allow sufficient time to process a revised request without undue delay. Under Professional Standard 5.1, an agency must take reasonable steps to notify an applicant under section 25A(6) within 21 days of receiving a valid request.

Providing a reasonable opportunity to consult

The Act does not specify what constitutes providing an applicant with a reasonable opportunity to consult. The timeframe will depend on the facts in each case. Usually 28 days should be sufficient, but sometimes a longer period may be reasonable (for example, if the agency knows the applicant is away for several weeks). At a minimum, Professional Standard 5.2 requires an agency to provide an applicant with 21 days to respond to the section 25A(6) notice.

Assisting an applicant to revise a request

The agency or Minister must explain why the request is too broad and if possible offer suggestions and information to help the applicant to rescope or narrow the request to avoid the ground for refusal under section 25A(1). This could include:

  • giving the applicant information about the types or classes of documents the agency or Minister holds in relation to the subject matter, or information about how records are made and stored in the agency or Minister’s office;
  • asking the applicant for more information about the incident or subject matter that interests them, and suggesting specific documents or types of documents that are likely to be of interest;
  • making suggestions as to how the request could be rescoped or narrowed (for example, by reducing the time period, reducing the categories of documents and/or eliminating material that involves third parties). Sometimes getting the applicant to discuss their request with a staff member from the relevant operational area may help them to identify the documents they want and refine their request accordingly.

An agency or Minister is not required to give the applicant lists of all relevant documents, but simply to provide enough information to allow the applicant to make an informed request that can be processed.

Professional Standard 5.3 requires an agency to keep records of the consultation undertaken including any responses from the applicant and the final terms of any amended request.

STEP 4: MAKE DECISION

If an applicant does not respond when given a reasonable opportunity to do so, the agency or Minister can make a decision to refuse access under section 25A(1).

A notice of decision and statement of reasons under section 27 must be given to the applicant. The notice should include:

  • a description of the estimated number and types of documents covered by the request, including an estimate of the number of pages or other description of size (such as hours of audio visual recordings);
  • a description of the agency’s or Minister’s efforts to help the applicant revise their request, and any response from the applicant;
  • the reasons why the request is considered a substantial and unreasonable diversion of the agency’s resources or a substantial and unreasonable interference with the Minister’s functions, including the estimate of the resources that would be involved in each of the processing steps and an indication of the complexity of the decision;
  • details of the applicant’s review rights.

If the request for access is sufficiently rescoped or narrowed during the consultation process so that it is no longer considered a substantial and unreasonable diversion of agency resources (or interference with a Minister’s functions), the agency or Minister must process the request. The agency or Minister should confirm this in writing to the applicant and advise them of the new timeframe for processing the request, taking into account the consultation period during which the 30 day timeframe for processing the request was suspended.

Agencies and Ministers are encouraged to provide detailed reasons in the decision letter to explain the basis on which section 25A(1) has been applied to refuse to process the request.

COOPERATION IN THE CONDUCT OF REVIEWS

The Commissioners rely on the cooperation of agencies and Ministers to conduct reviews in a timely and efficient manner and with as little formality and technicality as possible.

If necessary, the Commissioners will request a decision maker provide any contextual information, processing estimates and any other relevant information relied upon by the agency or Minister to determine whether processing the request would involve a substantial and unreasonable diversion of the agency’s resources or a substantial and unreasonable interference with a Minister’s functions.

Finally, during 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] Chief Commissioner of Police v McIntosh [2010] VSC 439.

[5] [2001] VSCA 246 at [48].

[6] As noted in McIntosh v Victoria Police [2008] VCAT 916 at [11].

[7] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [6].

[8] Section 16(1).

[9] Section 16(2).

[10] Re A and Department of Human Services (1998) 13 VAR 235 at 247.

[11] McIntosh v Victoria Police [2008] VCAT 916 at [10].

[12] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 24 at [32] and [63].

[13] Asher v Department of Innovation, Industry and Regional Development (General) [2005] VCAT 1734.

[14] McIntosh v Victoria Police [2008] VCAT 916 at [26]-[29].

[15] McIntosh v Victoria Police [2008] VCAT 916 at [33].

[16] Re A and Department of Human Services (1998) 13 VAR 235 at 247.

[17] Section 3(1).

[18] Re SRB and Department of Health, Housing, Local Government and Community Services (1994) 19 AAR 178 at [187]. This decision concerned the equivalent provision in the Commonwealth Freedom of Information Act 1982 (Cth).

[19] The Age Company Pty Ltd v CenITex [2013] VCAT 288 at [43]-[45]. A similar approach was followed in Smeaton v Victorian WorkCover Authority [2012] VCAT 1550. The decisions drew on a non-exhaustive list of factors set out in the NSW decision of Cainfrano v Director General, Premier’s Department [2006] NSWADT 137, which drew in part on the decision of the former Victorian Administrative Appeals Tribunal in Re Borthwick and University of Melbourne (1985) 1 VAR 33.

[20] In The Age Company Pty Ltd v CenITex [2013] VCAT 288, importance was placed on the public interest in the transparency of gift giving.

[21] See also Re A v Department of Human Services (1998) VAR 235 at 246, where it was stated the applicant’s refusal to limit the ambit of a broad request in any way was relevant to unreasonableness.

[22] Cainfrano v Director General, Premier’s Department [2006] NSWADT 137 at [62].

[23] [2013] VCAT 288 at [45].

[24] The Age Company Pty Ltd v CenITex [2013] VCAT 288 at [46].

[25] For example, in Cainfrano v Director General, Premier’s Department [2006] NSWADT 137 at [60], the NSW Administrative Decisions Tribunal stated the NSW Premier’s Department, which could ‘be expected to have substantial bodies of documents that involve important areas of government activity’, should not be given the ‘degree of liberality … that might be appropriate to a very small statutory body with a small staff complement, and consequently a very limited capacity to deal with FOI requests of scale’.

[26] The Age Company Pty Ltd v CenITex [2012] VCAT 1523.

[27] AB v Department of Education [2012] VCAT 1233.

[28] Smeaton v Victorian WorkCover Authority [2012] VCAT 1236.

[29] Smeaton v Victorian WorkCover Authority [2012] VCAT 1550.

[30] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246.

[31] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [48] in which the applicant made 321 separate requests, including 54 identical requests to five government departments. All requests were transferred to a single department for processing.

[32] XYZ v Victoria Police [2007] VCAT 1686.

[33] Section 25A(7).

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