the solution

From the Executive Director

Introducing our new team

New FOI Solutions team

 

FOI Solutions has seen a few changes in personnel over the last 12 months as our work family has evolved.

 

The cover page of this newsletter shows our legal team (from left to right):

  • Grusha Malik, Solicitor
  • Elisa Hesling, Special Counsel 
  • Mick Batskos, Executive Director
  • Bilge Eser, Solicitor
  • Aryanna Singh, Solicitor

For more information about our lawyers, feel free to check out our website.

 

Our admin team has also changed and now comprises:

  • Grace Wang, Manager, Administration
  • Sienna Sirianni, Administration Officer

We are all ably supported by our law clerks:

  • Esra Ikiz
  • Ben Seskis
  • Lauren Barton

We look forward to continuing to provide our expert services to clients, including over the holiday season.   We will not be closing over the festive season (apart from public holidays), so feel free to contact us if we can be of service.

 

Substantial and unreasonable diversion requests

 

FOI Solutions recently received a decision from the Victorian Civil and Administrative Tribunal in which the principles about how s 25A(1) applies were confirmed.  We are not able to refer to the case in detail as to do so might contravene orders in place in other proceedings between the parties protecting the identity of the applicant.

 

VCAT confirmed that:

  1. Section 25A is concerned with the impact the work involved in processing a request for access would have on the ability of an agency to carry out its day to day functions.
  2. Section 25A was introduced because voluminous requests were seen to be causing severe disruption to agencies, even though the number of such requests was relatively small.
  3. Section 25A was introduced to strike a balance between the object of the FOI Act and the need to ensure that requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of government agencies.  They should not be diverted from their core activities in order to deal with broad ranging requests for documents.
  4. The words ‘substantially’ and ‘unreasonably’ have not been precisely defined.  It has been held that those words not to require overwhelming proof of difficulty, and to allow some latitude to the agency, given that the difficulty of the process can only be estimated, not proven.
  5. Section 25A requires the consideration of the capacity of the agency overall to process the request, not just the capacity of FOI unit of the agency.  Although the task of dealing with or processing the request in issue is one of the operations of the agency.  Its "other operations" are all of the other things that it does, including dealing with and processing other FOI requests.
  6. When assessing section 25A, an agency is not obliged to specify exactly how much time and energy would be spent processing the request.  Estimates only are acceptable, as to ensure precision would mean the agency would have to do the very work that section 25A is designed to prevent.
  7. An agency cannot make a decision to refuse access on this basis without having first complied with the requirements of s 25A(6) of the FOI Act.  This is a necessary pre-requisite or condition precedent to the exercise of the power to refuse under s 25A(1). 

Please note that VCAT is cracking down on compliance with s 25A(6).  Putting in the effort to get this right is of crucial importance.

 

Christmas message

 

We hope all of our clients have a happy and peaceful festive season and can recharge batteries before tackling 2024.   We would like to take this opportunity to thank you for your loyalty in choosing to use our legal and other services.  Warmest wishes.

 

Mick Batskos

Executive Director