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Practice Note 3: Deletion of Irrelevant Material

1. Can I delete irrelevant material from documents falling within a request?
2. When would information in a document reasonably be regarded as irrelevant?
3. Do I have to tell the applicant that I have deleted irrelevant material from a document?
4. What review rights do applicants have to review deletion of irrelevant material?
5. In determining whether information is irrelevant how do I interpret the request for access?
6. When is it not practicable to delete irrelevant material?

  

1. Can I delete irrelevant material from documents falling within a request?

Section 25 of the Freedom of Information Act 1982 (FOI Act) permits an agency to delete irrelevant material from a document falling within a request. In fact section 25 requires such deletion provided the following three conditions are met:

• to grant access would disclose information that would reasonably be regarded as irrelevant to the request; and
• it is practicable to grant access to an edited copy of the document with the irrelevant material deleted; and
• it appears from the request or the applicant subsequently indicates that the applicant would like access to such an edited copy document.

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2. When would information in a document reasonably be regarded as irrelevant?

Irrelevant material is that which is clearly outside the terms of the request (for example relating to a different subject matter, outside the nominated timeframe, relating to another person where the applicant is only seeking information concerning themselves or nominated individuals, etc.). For further information see item 5 below.

Information in a document would reasonably be regarded as irrelevant to a request for access when that information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access.

An agency must ask itself whether disclosure of the particular information might reasonably be looked on as irrelevant to the request (in which case it could properly be deleted) or whether it is irrational or absurd to think that the information is irrelevant to the request (in which case it should not be deleted).

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3. Do I have to tell the applicant that I have deleted irrelevant material from a document?

When a decision is made to grant access to an edited copy document with irrelevant material deleted from it, it is necessary to include in the statement of reasons provided to the applicant under section 27, a statement that the document is a copy of a document from which irrelevant matter has been deleted under section 27(1)(c).

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4. What review rights do applicants have to review deletion of irrelevant material?

Although not entirely clear under the Act, it is considered good practice to provide an applicant with review rights in any statement of reasons under section 27 where parts of a document are deleted on the basis that they would reasonably be regarded as irrelevant to the request. Details of these review rights need not be provided where the information deleted has been expressed in the application or subsequently agreed as information not sought by the applicant(e.g. an application which specifically states that the applicant is not seeking personal information about third parties).

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5. In determining whether information is irrelevant how do I interpret the request for access?

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 up to the request;
• wider events in the community.

With those considerations in mind, an agency must stand back and take an overall view of the request and the context in which it is made, bearing in mind that applicants cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or of the workings of government. The Agency should ask itself whether disclosure of the particular information might reasonably be looked on as irrelevant to the request (in which case it could properly be deleted) or whether it is it irrational or absurd to think that the information is irrelevant (in which case it should not be deleted). For example, if documents are only relevant to a request in part, any material that is not relevant to the request should be deleted in accordance with section 25 of the FOI Act rather than exempted from release under Part III of the FOI Act (e.g. individuals specifically seeking access to their personal information, contained within registers or sections of reports that include the information of other individuals). The fact that parts of the document are relevant to a request does not make the content of the remainder of the document relevant to the request.

Similarly, if a request sought details of the agency's processing of the applicant's grant application and the relevant document included information about all grant applications, those parts of the document detailing other applications for grants could be deleted as irrelevant under section 25 of the FOI Act. The agency would therefore not need to consider the application of any of the exemptions, e.g. section 33 (personal affairs).

A further example is if a report detailing the progress of a number of projects was identified as relevant to a request seeking documents about a specific project then the information regarding other projects could be properly deleted as irrelevant under section 25 of the FOI Act.

Another example is information which is outside the timeframe of the request can also be appropriately deleted under section 25 of the FOI Act. In case of a financial summary document of all purchases made during a financial year would be irrelevant if the request sought details of purchases made by an agency in a specific month.

If there is any doubt as to whether or not the material under consideration is irrelevant it is prudent to err on the side of leaving it in and processing it accordingly.

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6. When is it not practicable to delete irrelevant material?

In determining whether deletion of irrelevant material under section 25 is "practicable", the following considerations may be taken into account:

• is the editing or deleting capable of being carried out (i.e. not impossible)?
• is it possible to edit the document without deleting so much information that it would render the document meaningless, misleading or lead to unnecessary speculation as to what was missing and thus be even more objectionable than release of the whole document?
• would deleting the irrelevant material from the document result in the release of an unintelligible document; would it leave anything meaningful or intelligible?
• would deleting the irrelevant material result in the release of a document which whilst grammatically intelligible, would be devoid of context?
• what is the nature and extent of the work involved in deciding on and making the deletions required so that the copy document does not contain the irrelevant material when released. This includes consideration of the extent of the deletions, the time involved and resources required in making them and providing a copy.

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