From the Executive Director

 This short piece seeks to clarify the legal position as to whether an FOI applicant can ask for an electronic copy of documents to which an agency decides to grant access.

Seeking an "electronic" copy can include asking for documents to be sent via email, some document sharing platform, or via mail on an electronic storage device (such as a USB, CD or similar device). 

Under both Victorian and Commonwealth freedom of information legislation, there are almost identical provisions which set out the different forms of access available under each Act.[1]  An example is that they both allow for access by way of provision of a copy.

They each also go on to state that the applicant has the right to request access in a particular form, and the agency must do so unless one of a number of exceptions applies.  The “form” of access referred to is one of the forms of access set out in the relevant section.  Therefore, if an applicant asks for a copy of a document, access must be provided in that form unless one of the exceptions applies.  If access is sought by way of inspection, that form of access must be provided unless one of the exceptions applies.

But what happens if an applicant asks for an “electronic” copy. What if they ask for the document to be provided in Microsoft® Word format or PDF format?  What if they want the copy documents to be sent electronically. Does the agency have to comply with such a request?  The short answer is “no”. 

An applicant can ask for access in a particular form, being one of the forms set out in the relevant FOI Act, but not a particular format.  It has previously been held,[2] in relation to such provisions, if a copy of a document is requested:

“…it is sufficient for an agency to provide a copy of that document in whatever format is most convenient and efficient for the agency in handling the request.  The operative word in the sub-section is ‘form’ not ‘format’.  “Form” in this context refers back to the forms specified in [the section], not to different ‘formats’ of electronically produced and stored documents such as Microsoft Word and PDF formats.

Agencies ought not be obliged to satisfy exotic requests relating to specific formats (such as the various editions of Microsoft® Word or other word-processing programs, let alone other methods of copying documents). If the applicant’s argument is correct, a person requesting information under the Act could request it in any format at his or her whim and the agency, unless it could argue cogently that this would unreasonably interfere with its operations, would be obliged to, for example, provide the copy in handwriting in purple ink on pink paper — an obviously absurd proposition.”

So, in summary:

• an applicant can nominate a form of access, but not the format in which access is to be provided;
• if an applicant does nominate a particular format, it is up to the agency’s discretion as to whether it wishes to entertain that format, but it has no legal obligation to provide access in a particular format.

Please also note that the form (and probably format) of access will have an impact on any access charges payable under the relevant regulations, remembering of course that access to documents need only be provided if any access charges payable under the regulations are, in fact, paid.

If you have any queries arising from this piece, feel free to contact us.

[1] Section 23, Vic FOI Act; s 20, Cth FOI Act.

[2] QVFT v Secretary, Department of Immigration and Citizenship [2011] AATA 763, [119] – [1120]

Mick Batskos

Executive Director