From the Executive Director

Joint FOI requests invalid

The Office of the Victorian Information Commissioner has accepted that where a law firm, which is a partnership, makes a request for access to documents under the Freedom of Information Act 1982 (Vic), it is not a valid request.  A partnership is not a “person” that can make an FOI request. 

The factors which led to that conclusion were:

• the request was made on the firm’s letterhead, but there was no indication in the letter that it was made on behalf of a client of the firm.
• the letter was signed by an individual partner, but it was under the signature of the firm and appeared to be on behalf of the firm (as was all subsequent communications).
• an employee of the firm was listed as the contact person.
• the correspondence referred to “we” and “us” throughout and documents were requested to be sent to either the partner or the employee contact person.
• there was nothing in the letter to indicate the request was made by an individual partner in their own capacity.
• despite the individual partner’s subjective intention for the request not to be made by the partnership, it nevertheless was considered as having been made by the partnership.

Our submissions to OVIC on behalf of our client were that:

• a request for access is an individually exercisable right which cannot be exercised jointly by two or more persons in a single request (as recognized in decided AAT cases).
• similarly, no review application can be made jointly.
• a request for access cannot be made by a law firm which is a partnership for an undisclosed client.
• the agency was not aware of this issue when dealing with the request; if it was, it would have addressed the deficiency at that time.
• the issue was a jurisdictional matter which was being raised as soon as practicable once our client became aware of the issue.

Given that the matter was already under review, the applicant could not now change their request during the review to remove this jurisdictional issue.  This is also consistent with previous VCAT authority that an applicant cannot amend their request during the OVIC review process.

OVIC dismissed the review application on the grounds that a review was considered not appropriate in the circumstances.

This is a clear illustration of the fact that a joint FOI request cannot be made under the FOI Act.  Although this was in the context of a partnership where all partners are treated as  jointly making a request, the principles apply in other situations as well.  For example, where a husband and wife might submit a request for access.

If you have any queries arising from this determination, please contact us.

Mick Batskos 

Executive Director