Practice Note 1: Requests for Access
Summary
A valid request must be:
- in writing - not verbal;
- accompanied by an application fee of 2 fee units, which, since 1 July 2009, is $23.40 (unless waived or reduced because of hardship);
- sufficiently clear to enable the agency to conduct a thorough and constructive search for the documents sought.
There is an obligation on FOI Officers to assist an applicant to lodge a valid request. Reasonable assistance ought to be provided to enable an applicant, acting reasonably, to make a valid request.
1 Note: references in this Practice Note to sections are references to sections of the Freedom of Information Act 1982 (Vic) ('FOI Act') unless otherwise stated.
- Why must a request for access be valid?
- What is required before a valid request can be said to exist?
- When is a request considered to be "in writing"?
- Can a request be made verbally?
- What is the application fee?
- When can I waive or reduce the application fee?
- When would payment of the application fee cause an applicant hardship?
- What information from an applicant is reasonably necessary to enable an agency to identify documents sought?
- How should I interpret a request?
- What happens if the request is ambiguous or unclear?
- What steps should I take to assist the applicant to lodge a valid request?
- How should consultation occur?
1. Why must a request for access be valid?
Every person has a right to obtain access to documents of agencies or Ministers under the FOI Act "in accordance with" section 13 of the Freedom of Information Act 1982 ( FOI Act).
A "request" is defined in the FOI Act to mean a request made in accordance with section 17. Therefore, a request for access to documents under the FOI Act must comply with the requirements of section 17 before it can be considered a valid request.
The time within which a decision must be made on that application does not commence to run until it is valid.
2. What is required before a valid request can be said to exist?
For a request to be valid, it must:
- be made in writing to the agency or Minister as the case requires (section 17(1));
- be accompanied by a fee of 2 fee units (section 17(2A)), unless that fee is waived or reduced on hardship grounds by the agency or Minister (or decision maker acting on their behalf) (section 17(2B)); and
- provide such information concerning the documents sought as is reasonably necessary to enable the agency or Minister (or decision maker acting on their behalf) to identify the documents (section 17(2)).
3. When is a request considered to be "in writing"?
A request is in writing if it is provided to the agency or Minister in a documentary form other than verbally. For example, it can be made in the form of a letter, a memorandum, an email, a fax transmission, on a form downloaded from the FOI Online web site (www.foi.vic.gov.au), etc. That is, it can be provided in hard copy form or in electronic form.
4. Can a request be made verbally?
In short, no. A request for access cannot be made verbally over the telephone or in a face-to-face conversation or meeting. It must be made "in writing" as required by section 17(1). This can be in a letter, email, fax, etc. (as described above).
5. What is the application fee?
The application fee is the amount which must accompany a request for access for it to be a valid request under the FOI Act. The amount of the application fee is 2 fee units. A "fee unit" is an amount set by the Treasurer and published in the Government Gazette from time to time in accordance with the Monetary Units Act 2004.
From 1 July 2009, the application fee of 2 fee units is $23.40. That amount is likely to change each year as the Treasurer publishes the new amount for a fee unit in the Government Gazette. For more information about the current application fee see the FOI Online web site (www.foi.vic.gov.au ) and Practice Note 2 'Fees and Charges'.
6. When can I waive or reduce the application fee?
The application fee may be waived or reduced if payment of the fee would cause hardship to the applicant. That waiver or reduction can occur whether or not the fee has been paid.
7. When would payment of the application fee cause an applicant hardship?
Section 17(2B) of the Act provides that the application fee may be waived or reduced if payment would cause hardship to the applicant.
Hardship arises when payment of the application fee would cause severe suffering or privation (lack of the comforts or necessities of life). Whether or not payment would cause hardship to an applicant should be determined on a case by case basis. The answer will depend on the applicant's circumstances in each case.
In order to determine the answer, you need to obtain appropriate evidence from the applicant. Sometimes that evidence is provided with the request – other times you may have to seek it from the applicant if waiver or reduction of the application fee is sought.
Although it will not necessarily be so in each case, generally, if the applicant can produce evidence that he or she is receiving social security payments of some kind, it may be sufficient evidence that payment would cause hardship to the individual (for example, a social security concession card, health benefits card, evidence of unemployment, etc.).
Other types of evidence might include:
- a statement of after tax income and expenses;
- bank balances;
- whether the person has any dependents (e.g. partner, children);
- if the person has a partner, whether the partner is in the workforce.
There are advantages for applicants and agencies if agencies develop a policy regarding the waiving of fees and consistently apply it.
8. What information from an applicant is reasonably necessary to enable an agency to identify documents sought?
There are obligations on an applicant to define with as much precision as possible the documents sought. If an application is ambiguous, uncertain, unclear or otherwise ill defined, it does not comply with the FOI Act and is not a valid request. It should not be for an agency's FOI Officer to be left to guess what documents the applicant is actually seeking. There should be sufficient information provided by the applicant about the documents sought to enable thorough and constructive searches to be made. If an agency fairly understands what documents are sought, there should not be insistence on precise identification or description of the documents.
Applicants should be advised that requests must be made for specific documents or groups of documents, not for every document in a broad category. If every document is sought in relation to a subject matter or category that is too broad, the request may not be valid.
Similarly applicants should be reminded that sufficient information must be provided so that the documents can properly be identified not only by reasonable description, but also by date or within a reasonable time period. For example, if the time period for the existence of possible relevant documents is unlimited, the request may not be valid.
A test which could be applied is to determine whether a person in the business unit where the documents reside would understand what documents are being requested.
Therefore, if a request is not clear enough in that it does not provide such information as is reasonably necessary to enable an agency to identify the documents sought, the request is not valid. Before relying on this ground to refuse to process a request, however, a further step must be taken. The applicant must be provided with a reasonable opportunity to consult with the agency with a view to making the request valid.
Clarification of unclear requests as soon as practicable is important.
If an agency accepts a request in the terms in which it was provided and fully processes it, it waives any right to object to its wording later.
9. How should I interpret a request?
A request must not be analysed as though it were a legislative instrument or a court document (such as a pleading). It must be kept in mind that the applicant may not have a detailed knowledge of the types of documents held by an agency or the Minister's office and how to describe what they want.
If an applicant uses a word that has a common meaning as well as a technical meaning, unless there is a reason for concluding that the word has been used in its technical sense (and this may follow from consultation with the applicant), it should be given its ordinary meaning. If the technical meaning is used, that should be made apparent to the applicant in any decision letter or statement of reasons provided to the applicant. Do not take artificial or strained interpretations of the words used in a request for access.
A request must also be read in the context in which it is made. This context can be ascertained from, among other things:
- the nature of the applicant. For example, is the applicant a sophisticated, frequent and experienced user of the FOI Act who is aware of the need for precision in the language to be used, or a person with little expertise in dealing with government agencies;
- previous dealings with the applicant;
- communications between the applicant and the agency;
- events leading to up to the request;
- wider events in the community.
10. What happens if the request is ambiguous or unclear?
If an agency receives a request for access which is insufficiently precise to enable meaningful searches for documents to be undertaken, the agency is entitled to reject that request. That is, the request would not be a valid one. It is important to note, however, that such a rejection can only take place if the agency first gives the applicant a reasonable opportunity to consult with a view to making the request in a form that is sufficiently clear (section 17(4)).
Unclear requests should be clarified at the earliest practicable time. Sometimes this can be after the search for documents has commenced.
If, after having provided the applicant with an opportunity to consult and clarify the request, it remains insufficiently clear, the agency may advise the applicant that the application is not valid under section 17(2) of the FOI Act and that it therefore will not be processed. That can occur if the applicant fails or refuses to consult to clarify the request or an attempt at clarification was insufficient to remove the ambiguity or uncertainty. Appropriate consultation usually results in a valid request that can be processed.
11. What steps should I take to assist the applicant to lodge a valid request?
Where an applicant has made a request which does not comply with all of the elements of section 17, there exists an obligation on an agency to assist the applicant to make a request in a manner that does comply with section 17. The agency must provide reasonable assistance to satisfy its obligations. Sufficient information and assistance ought to be provided to enable an applicant, acting reasonably, to make a valid request. This obligation could be fulfilled by various means including:
- where appropriate 2, providing a fair indication of the documents or class of documents the agency holds that may be relevant to the subject matter of the request;
- providing examples of the types of documents held;
- engaging in helpful dialogue to try to establish a real understanding of what is being sought by an applicant;
- providing the information to enable the applicant to make an informed request that enables the agency to identify the relevant documents;
- involving officers from the relevant program area(s) in the consultation process to ensure the applicant is properly informed of the types of documents that are available;
- ensuring that artificial definitions or constructions of terms are not adopted (applicants should be advised of any exclusionary definitions applied and the documents or classes of document excluded).
The reasonable assistance to be provided by an agency does not extend to drafting the request for the applicant. Care must also be taken to avoid accusations of 'steering' applicants either towards or away from particular documents being made as a result of the consultative process.
2 Issues such as the requirements of privacy legislation or secrecy and confidentiality provisions in legislation relating to the agency should be considered in determining appropriateness.
12. How should consultation occur?
Consultation with an applicant in relation to an unclear request should occur as soon as practicable after any lack of clarity is identified. That consultation ought to be conducted in as direct a manner as practicable in the circumstances. Consultation may include telephone or other oral discussions or written exchanges by email, letter, fax or other means. The Ombudsman, in the review of FOI in 2006, encouraged consultation with applicants by telephone or in person, where appropriate, to expedite the process (see page 8 of the Ombudsman's report).
If consultation occurs verbally, the outcome of that consultation ought to be documented. That is because any request must be "in writing" and will minimise any chance of misunderstanding. Consultation and clarification is important because once an agency accepts a request in the terms in which it was provided and fully processes it, it waives any right to object to the wording of the request at some later time. The statutory timeframe for processing the request also commences at the point a clarified request is received.