Wednesday 19 October 2016

Attorney-General v Honourable Mark Dreyfus: When can burdensome freedom of information requests be refused?

Freedom of information (FOI) schemes in both Victoria and the Commonwealth give public entities the power to refuse unreasonably burdensome FOI requests.  In the case of agencies, requests may be refused where they would substantially and unreasonably divert the resources of the agency from its other operations. In the case of ministers, requests may be refused where they would substantially and unreasonably interfere with the performance of the minister's functions. 

A recent decision of the Full Court of the Federal Court, Attorney-General v Honourable Mark Dreyfus [2016]FCAFC 119, provides guidance as to when a request can be refused on this ground.

The decision, which was handed down on 6 September, concerned an FOI request made by the Hon Mark Dreyfus, a Member of the Commonwealth Parliament, seeking access to the diary entries of Commonwealth Attorney-General George Brandis.  Mr Dreyfus requested entries for the period 18 September 2013 to 12 May 2014 in a 'weekly agenda' format.  The diary entries were generally brief, containing the time of the meeting, the person to be met and occasionally a short description. 

The Attorney-General initially refused the request, on the basis that processing it would 'substantially and unreasonably interfere' with the performance of his functions.  The Attorney-General estimated that the process would take around 630 hours, including time spent gathering information that could not be gleaned from the entries alone and consulting with third parties mentioned in the entries.

The Administrative Appeals Tribunal set aside the Attorney-General's decision, a finding that the Full Court of the Federal Court upheld. 

The Federal Court's decision turned on the following two questions:
  • When would the Attorney-General be required to consider extrinsic documents in determining whether a claimed diary entry could be released?
  •  When would the Attorney-General be required consult with third parties to determine whether such a party might wish to claim an exemption?

In relation to both questions, the Court held that the Attorney-General would only be required to consider extrinsic documents or consult with third parties if it appeared from the face of the entries that this would be necessary.  The Court found that most of the entries did not require this.  The request could not, therefore, be rejected for substantial and unreasonable interference with the performance of the Attorney-General functions. 

The Federal Court's judgment is consistent with past determinations on similar issues.  In Fletcher and Prime Minister of Australia[2013] AICmr 11 (22 February 2013),  for example, the Australian Information Commissioner upheld a request for access to cross-bench meeting entries in the Prime Minister's diary for the period of about one year.

The decision is a useful reminder for public entities to adopt a pragmatic approach when considering whether a FOI request would be a substantial and unreasonable diversion of resources, and to keep in mind that it will be necessary to prove, with persuasive evidence, to the Freedom of Information Commissioner, or VCAT, that any claim that the processing of a particular FOI request would constitute a substantial and unreasonable diversion of resources would in fact do so.

Acting Managing Principal Solicitor

Managing Principal Solicitor

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