Transferring a freedom of information request: When can you? And how?

By Zac Chami.

Key Points:
An agency that receives a freedom of information request cannot transfer the request without making a reasonable effort to find the documents.

You receive a freedom of information ("FOI") request but consider that another agency is better equipped to deal with it. This is a recurring issue for all Governments whether State, Territory or Commonwealth. When can you transfer the request?

A recent decision, Bienstein v Attorney-General [2007] FCA 1174, gives some useful guidance, and emphasises the obligation to search your own records before transferring a request.

The request and the transfer

Ms Bienstein made two freedom of information requests: one to the Attorney-General and the other to the Minister for Justice and Customs. Both the Attorney-General and the Minister transferred the requests to the Attorney-General’s Department under section 16 of the Freedom of Information Act 1982 (Cth), which allows a transfer

• if the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or
• the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made.

The Attorney-General and the Minister argued that the transfer was valid because the subject-matter of the documents was more closely connected with the Department’s functions. Once the transfer was made, they said, their only other legal obligation was to inform Ms Bienstein of the transfer.

There were two questions for Justice Gray of the Federal Court:

• was the transfer valid?
• does a transfer absolve the original agency from the obligation to search for documents which may answer the request?

In the absence of relevant authorities, Justice Gray construed the section itself, by reference to the context provided by the other provisions of the Act and the underyling purpose of the legislation. He found that the transfer was not valid as no attempt had been made to ascertain whether the documents were in the possession of the Attorney-General or the Minister before the transfer was made.

What is the subject-matter of a document?

To decide if the subject-matter of a document is more closely connected with another agency’s functions, said Justice Gray, the agency must look at the subject-matter of the "document" held by the agency itself and not the subject-matter of the applicant’s "request". In some cases, the subject-matter of the document and the request will be the same (for example, where the applicant identifies a document by reference to its title, date, parties involved or contents).

Where the documents are sought by general description, however, it may be impossible to make a decision about subject-matter without ascertaining whether the recipient of the request holds any such documents and, if so, considering each such document.

An agency cannot merely analyse the terms of the request and determine that since the subject-matter of the request is more closely connected with the functions of another agency, the request can be transferred as a matter of course.

Furthermore, said Justice Gray, the agency must search its records to determine whether a document is in its possession.

Problems arising from this decision

There are two main problems arising from this decision.

First, as Justice Gray emphasised, section 16 only provides for the transfer of a request in relation to a specific document, not the entire request. This means an agency must search its own records to ascertain the existence of the document being requested. Having determined that it holds a specific document which is more closely connected with the functions of another agency, it may then transfer the request but only in so far as it relates to that document. Consequently, a transfer is likely to lead to a duplication of functions by both agencies, instead of allowing for improved administrative efficiency.

The second problem is that it’s unclear what legal obligations remain on the agency that transfers the request. Suppose the agency to which the request is transferred no longer has the requested document because it’s been misplaced, or destroyed under the Archives Act 1983 (Cth), or is offshore and cannot be reproduced or located within time. Must the transferring agency produce the document?

The wording of section 16(5) suggests that a transferred request is taken to be a request made to the agency to whom the request is transferred. Consequently, it is arguable that the transferring agency’s obligations cease upon the transfer. Although the better view may be that the applicant’s right to access the document will override any narrow construction of section 16 itself, the matter is not free from doubt.

Outcome and implications for agencies

Agencies must not overlook the purpose of the Act, set out in section 3(1), when dealing with requests for freedom of information. As explained by Justice Gray, the Act is intended:

"’to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by’, among other things, creating a general right of access to information in documentary form in the possession of Ministers and other agencies."

In order to satisfy the requirements of a valid transfer, agencies must:

1. take whatever reasonable steps are necessary to ascertain whether they possess any documents answering the description in the request;

2. if they possess any such documents, consider the subject-matter of each document to determine whether it is more closely connected to the functions of another agency; and

3. if the answer to Question 2 in relation to any of the documents is "yes", and the other agency agrees to have the request transferred to it, transfer the application. The transfer must be limited to the specific document, because the whole of the FOI request cannot be transferred under section 16 of the Act.

It is not enough for an agency to "deem" the documents not in their possession, or to make a determination about the subject-matter of the documents without searching its documents. By omitting to check the documents in its possession, an agency has not fulfilled the basic premise - if not promise - of the Act "to extend as far as possible the right of the Australian community to access information in the possession of the Government".

Seen in this way the practical outcome of the Bienstein case may be that if an agency holds a document which clearly falls within the terms of the request, the preferable thing to do is for the agency to deal with the request and produce whatever documents it has in its possession.

For further information, please contact Zac Chami.