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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