13 Oct 2016
Dear Diary: The Full Federal Court explains how to determine if a practical refusal reason arises under the FOI Act…
By Caroline Bush
An FOI decision-maker should examine documents on their face to decide if consultation is needed unless there is some suggestion on the face of the document that it is appropriate to consider other related documents.
The Shadow Attorney-General's attempt to gain access to the Attorney-General's diary has provided greater clarity as to when decision-makers can refuse to grant access to documents under FOI on the basis that it is not practical to do so (Attorney-General v Hon Mark Dreyfus  FCAFC 119).
The Federal Court has confirmed that the steps that the decision-maker is required to take in determining whether to grant access to a document are more limited and ‒ as a consequence ‒ less resource-intensive than the Attorney-General asserted.
Mr Dreyfus requested access to the Attorney-General's diary
Mr Dreyfus sought access to the Attorney-General’s diary for the period between 18 September 2013 to 12 May 2014.
In the format sought, the diary recorded the date, time and certain limited meeting or appointment details such as the identity of the person or persons involved in the meeting or appointment and, in some cases, brief (one or two words) descriptions of the nature or purpose of the meeting. It did not show invitations, correspondence, background or briefing documents that related to the diary entries, nor did Mr Dreyfus seek access to them.
…and the Attorney-General refused to give it
Under sections 27 and 27A of the Freedom of Information Act 1982, agencies and Ministers must consult with businesses and individuals if those third parties might reasonably wish to make a submission that the documents in question should not be disclosed because they are exempt under the FOI Act.
The Attorney-General interpreted this obligation as requiring him to review the documents relating to each diary entry to determine whether those businesses and individuals might reasonably wish to make a submission that the particular entries should not be disclosed. As a result, he estimated it would take between 130 and 526 hours to consult with third parties identified in the diary entries, and that the entire request would take at least 228, and up to 630, hours to process.
In those circumstances the Attorney-General decided to refuse Mr Dreyfus' application, relying on section 24 of the FOI Act which provides a Minister may refuse access to a document if the Minister is satisfied that a "practical refusal reason" exists, in this case because the lengthy review and consultation process would "substantially and unreasonably interfere with the performance of the Minister's functions".
FOI Act doesn't automatically require consultation for every document
The Administrative Appeals Tribunal set aside the Attorney-General's decision and decided that no "practical refusal reason" existed in relation to the request, as the steps required by the FOI Act were less onerous than the Attorney-General asserted.
The Full Federal Court agreed, confirming that:
- It is not necessary in all cases to examine extrinsic materials and/or consult with the persons to whom the requested documents relate. Rather, the decision-maker should examine the documents in issue of their face unless there is some suggestion on the face of the document that it is appropriate to consider other related documents.
- In considering, under section 27, whether a third party might reasonably wish to make an exemption contention in respect of a document, the decision-maker needs to determine whether there is any "rational basis" on which that third party may wish to make such a contention. in short, there was no need to consult with every person to decide if consultation was necessary.
As the Attorney-General (or his delegate) was not required to go beyond examining the documents on the face, granting access would not involve "substantial and unreasonable interference". As such, no practical refusal reason existed and the Attorney-General could not rely on section 24 to refuse to grant Mr Dreyfus access to the documents sought.
Key takeaway for government decision-makers
The Federal Court's decision confirms that determining whether there would be substantial and unreasonable interference in granting access to documents under FOI must done by reference to the steps the decision-maker is required to take by the FOI Act.
In considering whether consultation is required, decision-makers are only required to examine the documents that are the subject of the request (unless those documents suggests otherwise) and consider whether there is a rational basis on which a third party may which to make an exemption contention.