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Practice Note 8: Decision Letters

1. When do I notify the applicant of a decision on the request?
2. When can a decision be deferred?
3. What must a notice of decision and reasons contain?
4. Do I have to include a schedule of the documents?
5. Are there any special requirements for particular types of decisions?
6. What if after a thorough and diligent search I cannot find any documents?
7. Is a statement of reasons needed for internal review decisions?

  

1. When do I notify the applicant of a decision on the request?

You are required by section 27 of the Freedom of Information Act 1982 (FOI Act) to give an applicant a notice in writing of your decision and reasons for decision on the request in the following situations:

• you decide the applicant is not entitled to access to the document or part of a document;
• you have decided to defer access to the document (section 24); or
• you have decided that the document does not exist or cannot be found.

Your decision on the request must be notified to the applicant as soon as practicable after the request is received, but in any event no later than 45 days after the agency receives the request. Otherwise the principal officer of the agency is deemed to have made a decision to refuse access to the documents and the applicant may seek review of that deemed decision from the VCAT.
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2. When can a decision be deferred?

Access to documents may be deferred in certain circumstances where a document has been prepared:

• for presentation to Parliament;
• for presentation to a Council;
• for release to the press;
• solely for inclusion (in the same or amended form) in a document prepared for any of the above reasons,

and the document has not yet been presented or released (or included in the document to be presented or released).
In those circumstances, the statement of reasons for decision must indicate as far as practicable how long access will be deferred (section 24(2)).
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3. What must a notice of decision and reasons contain?

The written notice of a decision must:

1. state the findings of any material facts;
2. refer to the evidence or material on which the findings were based;
3. state the reasons for the decision;
4. state the name and designation of the agency officer making the decision; and
5. inform the applicant of:
   1. the right to apply for review of the decision;
   2. the person or authority to which the application for review should be made (i.e. Principal Officer for internal review, VCAT for external review); and
   3. the time within which the application for review must be made (section 27(1)).

It is not enough for the statement of reasons to merely refer to the exemption relied upon or just quote the relevant section of the exemption. It is important to summarise the evidence relied upon (e.g. you may write "...based on inquiries from relevant officers and from a thorough reading of the agency's files on this matter I have found that..."). It is also important to establish what has been found in considering that evidence (e.g. "...I have formed the view that the document concerned contains information identifying persons other than you..."). It is then necessary to make the connection between what is found on the facts and the relevant exemption (e.g. "...that is, this document contains information relating to the personal affairs of a person other than yourself. It falls within the exemption set out at section 33(1) of the Act as I consider its disclosure to be unreasonable in accordance with this section because...").

In short, you should demonstrate a rational connection between the findings of fact and the decision made. This normally involves a discussion as to what criteria have to be met to establish an exemption and how they have been met by the facts found in relation to each document.

The characteristics listed below were identified by the Victorian Ombudsman as a guide for writing a statement of reasons. He states that an adequate statement of reasons should:

• set out the scope of the request as interpreted by the agency;
• detail any relevant consultations, statutory or otherwise, that have taken place;
• state the findings of fact on which the decision is based;
• indicate the weight given to questions of fact relevant to the decision;
• based on the above, indicate why any document has not been released in whole or part, showing how the decision is based on findings of fact and how the decision maker reached the decision, relating facts to all relevant statutory criteria;
• identify any guidelines or policy directions relied upon;
• where a document is not released, give a brief identifying description of the document, where it is possible without disclosing information that would be exempt (see sections 27(2)(b) and 33(6));
• where a document cannot be located, state when and where other related information is available publicly or potentially available by FOI request to the same or another agency.

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4. Do I have to include a schedule of the documents?

There is no legal obligation to provide to the applicant a schedule of the documents to which access has been refused². However, the Ombudsman has suggested that where a schedule of documents has already been prepared in the processing of a request for advice to management or the Minister's office, or it would be relatively easy to prepare, it should be provided to the applicant where it may better explain the reasons for the decision.

² See also Re Rowles and Deputy Commissioner of Taxation [2003] AATA 589, at [24] - [25].

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5. Are there any special requirements for particular types of decisions?

If a decision is made to grant access to part of a document with some exempt or irrelevant³ matter deleted, the notice must state that those documents are copies of documents from which exempt matter or matter reasonably regarded as irrelevant to the request has been deleted.

Any notice of decision that a document is an exempt internal working or deliberative document under section 30 must state the grounds of public interest which on balance led to the conclusion that the disclosure would be contrary to the public interest (section 30(5)).

If the decision relates to documents that are exempt under section 28 (Cabinet documents), section 29A (national security or anti-terrorism) or section 31 (law enforcement documents) or would be so exempt if they existed, the decision can be stated in terms which neither confirm nor deny the existence of any documents. Related to this is section 33(6) which also in effect enables a decision to be made along the lines of neither confirming nor denying the existence of documents sought about a particular person other than the applicant.

If a decision is about refusing access to documents containing health information about a person on the basis that disclosure would pose a serious threat to the life or health of that person, there are special requirements that need to be satisfied for any statement of reasons for decision. ^4
3See Practice Note 3 - Deletion of Irrelevant Material
⁴See s.27(1)(da) and (db) and the Health Records Act 2001.

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6. What if after a thorough and diligent search I cannot find any documents?

If the decision is that documents do not exist or cannot, after a thorough and diligent search, be located, rather than referring to a right of review, the notice must inform the applicant of the right to complain to the Ombudsman and provide the contact details for the Ombudsman (Level 9, 459 Collins Street, Melbourne, Vic, 3000.

In order to assist the applicant to understand that the request has been properly attended to and to help them decide whether to complain to the Ombudsman, it is advisable for any notice of decision to provide the applicant with some indication of the nature of the inquiries made and the searches conducted. This can include a summary of the relevant areas searched, the positions of officers who were called upon to take part in the search, the amount of time expended in carrying out a search and any other steps taken to establish that the document does not exist or cannot be located. In the case of a document that has existed, the notice could indicate when and where it was last known to have been. If the document has been destroyed in accordance with the Public Records Act (1973) include reference to the applicable disposal schedule.
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7. Is a statement of reasons needed for internal review decisions?

Although section 27 does not apply to decisions on internal review, it is sound administrative practice for any statement of reasons to contain the types of matters referred to in section 27.
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