Return to normal view

Practice Note 6: "Voluminous" Requests For Access

1. What is a "voluminous" request?
2. What is the difference between a "voluminous" request and an "invalid" request?
3. How do I determine whether processing a request would be a substantial and unreasonable diversion of resources?
4. What are the "resources" that are referred to?
5. When would processing the request be a "substantial" diversion of resources?
6. When would processing the request be an "unreasonable" diversion of resources?
7. What do I do if I think that the request is a "voluminous" one?
8. What is a reasonable opportunity to consult?
9. What if the applicant does not consult or sufficiently narrow the request?
10. What if the applicant does sufficiently narrow the request?
11. Can I treat multiple separate requests as a single request for determining whether collectively it is "voluminous"?

   

1. What is a "voluminous" request?

There is no actual mention in the Freedom of Information Act 1982 (FOI Ac]) of a "voluminous" request. The term was used in the second reading speech to the Bill which introduced s 25A into the Act in 1993 and has developed over time as a shorthand expression to cover the circumstances where an agency may refuse to process a valid request for access on certain grounds in section 25A. Those circumstances are not confined to sheer volume so the term "voluminous request" is not strictly accurate and can be misleading.

Section 25A(1) states that an agency may refuse to grant access in accordance with a request without having caused the processing of the request to have been undertaken where it is satisfied that the work involved in processing the request would:

1. substantially; and
2. unreasonably;

divert the resources of the agency from its other operations². Both these conditions need to be met for this section to apply.

²In the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister's functions: section 25A(1)(b).

Back to top

2. What is the difference between a "voluminous" request and an "invalid" request?

For a request to be valid, it must by definition be made in accordance with the requirements of section 17³ , i.e., the request must be in writing, accompanied by an appropriate application fee (unless waived or reduced for hardship), and must provide such information concerning the documents sought as is reasonably necessary to enable the agency to identify the documents (section 17(2)).

It is only once a valid request is received that consideration should be given to whether the request is a "voluminous" one, i.e., that processing the request would substantially and unreasonably divert the resources of the agency from its other operations.

It is important not to confuse non-valid and "voluminous" requests because a request that is not valid need not be processed and the 45 day statutory time limit for decision making does not commence unless and until a valid request is received.

In contrast, a "voluminous" request is one which is clear (in that the agency understands which documents are sought), but that processing the request would substantially and unreasonably divert the resources of the agency from its other operations. A notice sent to an applicant inviting consultation to narrow the request has the effect of stopping or suspending the 45 day period until the request is sufficiently narrowed to a manageable scope.

³See section 5(1) definition of "request" and Practice Note 1 – Requests for Access

Back to top

3. How do I determine whether processing a request would be a substantial and unreasonable diversion of resources?

There are two steps involved. First, you need to estimate the resources required by your agency to process the request. Second, you need to estimate the effect that processing the request would have on those resources, i.e., would there be a "substantial" and "unreasonable" diversion of the resources from the agency's other operations? These steps are described in more detail in the following paragraphs.
Back to top

4. What are the "resources" that are referred to?

The "resources" that must be considered are those reasonably required by an agency to process a request consistent with attendance to other priorities. It does not refer to the whole of the resources of an agency or the possible resources it may temporarily be able to obtain to assist in processing a request; it is limited to those resources currently available. Therefore, there is no onus on an agency to obtain assistance from outside the agency to process a particular request. However, it is equally clear that an agency must properly resource the FOI function.

The resources to be considered are those which would have to be used in:

1. identifying, locating or collating the documents within the agency's filing systems;
2. deciding whether to grant, refuse or defer access to the documents or edited copies including resources to be used in;
   1. examining the documents; or
   2. consulting with any person or body;
3. making copies (or edited copies) of the documents;
4. notifying the applicant of any interim or final decision on the request; and
5. any other matters

In considering whether to rely on the "voluminous request" ground the agency MUST NOT have regard to:

1. any maximum amount which may be charged for processing the request;
2. the reasons why the applicant is making the request, whether those reasons are stated by the applicant or are believed by the agency to be the reasons for the request.

(If the processing of requests is regularly constrained by the level of funding or resourcing for freedom of information within the agency the adequacy of this funding should be reviewed).

Back to top

5. When would processing the request be a "substantial" diversion of resources?

"Substantial" has been interpreted to mean in this context that the contemplated diversion of resources must not be a merely nominal diversion of resources that would occur if the request for access were processed.⁴

Other descriptions have included that the diversion of resources caused by processing the request would be considerable, serious or significant. This must be determined on a case by case basis and cannot be done by arbitrarily choosing a number of pages, documents or hours.

It is a relative concept and will vary from agency to agency. What is "substantial" for one agency may not be for another. The types of factors which could be considered to determine whether the diversion of resources would be "substantial" include:

• the nature and size of the agency;
• the level of funding or resourcing for FOI;
• the number of other FOI requests on hand (as well as current trends on whether requests received are increasing or decreasing);
• the number of employees who would be capable of assisting with processing the request and their other responsibilities (if any) including how much of their time is usually taken up with FOI matters.

⁴ See Re A and Department of Human Services (1998) 13 VAR 235.

Back to top

6. When would processing the request be an "unreasonable" diversion of resources?

Whether the diversion of resources would be "unreasonable" depends on each particular case. It involves balancing the predicted impact on the agency of processing the request against the objects of the FOI Act to extend as far as possible the right of access (see section 3 of the Act). This means considering all the facts and circumstances including:

• the number, type and volume of documents falling within the request (this can be estimated by representative sampling);
• the complexity of the request;
• whether only a limited number of people may be capable of identifying documents relevant to the request;
• whether only a limited number of people familiar with the documents will be able to assist FOI staff to determine whether the documents are wholly or partly exempt;
• the work time involved in fully processing the request, taking into account that it may not be practicable for those involved in processing the request to concentrate solely on that request, given other work and agency commitments.

Back to top

7. What do I do if I think that the request is a "voluminous" one?

A decision cannot be made to refuse to process the request on this basis unless the applicant is given the opportunity to narrow the request. This is done by complying with section 25A(6) as follows:

1. giving the applicant written notice:
   1. stating an intention to refuse access (NOT that a decision has been made to do so);
   2. inviting the applicant to consult with an identified officer of the agency (usually the FOI officer dealing with the request) with a view to making the request in a form which would remove the ground for refusal;
2. giving the applicant a reasonable opportunity to consult; and
3. as far as is reasonably practicable, providing the applicant with any information or suggestions that would assist the making of the request in a form which would remove the ground for refusal.

The agency should explain why the request is too broad and if possible offer positive suggestions and information to assist the applicant to narrow the request. This could include giving the applicant information about the types or classes of documents the agency holds in relation to the subject matter of the request, or the way in which its records are made and kept, to enable a re-formulation of the request aiming to reduce the work which would be involved in processing the request. It could also comprise making suggestions as to how the request could be narrowed to be in an acceptable form. In some instances having the applicant discuss their request with a staff member from the relevant program area may also assist this process. In his 2006 review of FOI the Ombudsman noted that this assistance does not require that an agency provide complete lists or indexes of documents, or to complete some preliminary search but simply to provide the information to enable an informed request that enables the agency to identify the relevant documents⁵ . The Ombudsman also suggested that applicants should be encouraged, where appropriate, to frame requests in terms of information as this is consistent with a focus of providing information relevant to the applicant's request – although he acknowledged that this would not be appropriate in some cases⁶.

Following these suggestions will assist the applicant to submit a "non-voluminous" request.

⁵See page 31, Ombudsman Victoria Review of the Freedom of Information Act – June 2006
⁶ibid, page 32

Back to top

8. What is a reasonable opportunity to consult?

There is no statutory time frame as to what constitutes a reasonable opportunity to consult. It will depend on the facts in each case. Usually a period of 28 days should be a sufficient period to allow the applicant to consult to narrow the request. But circumstances may be apparent which make that period not a "reasonable" opportunity (e.g. if the applicant is known to be overseas for two months).
Back to top

9. What if the applicant does not consult or sufficiently narrow the request?

If the applicant does not participate in the consultation or narrowing process or does not sufficiently narrow the request, once you have provided a reasonable opportunity to do so, you can make a decision to refuse access to the documents sought on the grounds that to process the request would substantially and unreasonably divert the resources of the agency from its other operations. A decision and statement of reasons made under section 27 must be provided to the applicant.
Back to top

10. What if the applicant does sufficiently narrow the request?

If the request for access is sufficiently narrowed by the consultation process with the applicant, the agency must process the request in accordance with the Act.

The time within which a decision about the request must be made and communicated to the applicant is suspended from the date the applicant is given the notice of present intention not to process the request under section25A(6) until the date the narrowed request is received. For this reason any notice to be sent under section 25A(6) should be provided as soon as possible after a request for access is received in order to allow time to process the request once narrowed.
Back to top

11. Can I treat multiple separate requests as a single request for determining whether collectively it is "voluminous"?

There may be circumstances where multiple requests may in whole or in part be dealt with together. The Supreme Court of Victoria⁷ has recognised that multiple requests may in certain circumstances properly be characterised effectively as a single request in order to determine whether that "single" request is a voluminous request under section 25A(1). That is, that processing that "single" request (ie the multiple requests or part of them) would substantially and unreasonably divert the resources of an agency from its other operations.

Is there sufficient commonality to treat the requests as a single request?

Multiple requests can be treated as a single request for the purposes of considering the application of section 25A(1) if there is sufficient or relevant commonality. That can be evidenced by the following (non-exhaustive) types of factors:

1. whether the multiple requests are made by or on behalf of the same person;
2. whether the multiple requests seek documents that are concerned with the same general subject matter;
3. whether the requests were lodged at or about the same time (e.g. within 2 to 3 weeks);
4. where to do otherwise would be to enable the evasion of the application and operation intended by the insertion of section 25A(1) (ie 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).

This list of factors is not exhaustive and not all of them need to exist to enable the requests to be treated as a single request for the purposes of considering the application of section 25A(1).

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

Back to top