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Other Information

April Training Sessions

FOI Solutions is offering the following upcoming training sessions:

  • 11 April 2022 - Basic FOI Training 1
  • 13 April 2022 - Basic FOI Training 2
  • 21 April 2022 - FOI Intermediate Training 1
  • 22 April 2022 - FOI Intermediate Training 2

For more information or to book online, visit the training sessions page on our website.

 

Question Time

Q: I have received an FOI request and completed a thorough and diligent search for documents corresponding to the request. Many of the documents found are duplicates of other documents and draft documents. Do I have to process the drafts and duplicates under the FOI Act or can I leave them out to speed up the processing time? 

 

A:  The short answer is yes, you have to process drafts and duplicates.  The definition of a ‘document’ in s 5 of the FOI Act includes any copy, reproduction or duplicate, or any part of a copy, reproduction or duplicate of a document.  This means that drafts and duplicates are “documents” within the meaning of the FOI Act and must be processed under the FOI Act, unless the applicant has expressly indicated that they do not seek access to draft documents and/or duplicate documents.

 

We understand that processing duplicates and drafts adds to the processing time. As such, we recommend, where practicable and early on in the process, that you expressly ask the applicant to tell you in writing whether they seek access to duplicate documents and draft documents.  This question could form part of your agency’s pro forma FOI application form or be asked when acknowledging the validity of the request.  If the applicant says yes, you will need to process the drafts and duplicates and if no exemptions or exceptions apply, release the documents to the FOI applicant. If the applicant says no, these documents need not be processed. 

 

Q: If an agency provides access to a document in a different form to that requested by the applicant (eg by inspection instead of provision of a copy), does the applicant have the right to apply to the Information Commissioner for a review of that decision?

 

A: The short answer is yes, that is a decision to refuse to grant access to the document in accordance with the request, and as such, it is reviewable by the Information Commissioner under s 49(1)(a) of the FOI Act. 

 

An agency is required to provide an applicant with a decision notice where a decision is made under Part III of the FOI Act that the applicant is not entitled to access to a document in accordance with the request (s 27(1), FOI Act).  One of the requirements of the decision notice is that it must inform the applicant of their right to apply for a review of the decision (s 27(d), FOI Act). 

 

Section 23 sits in Part III of the FOI Act and deals with forms of access (eg, inspection, copy, transcript or publication on the internet etc.). Section 23(2) requires access to be given in the form requested by the applicant.  Therefore, if an applicant requests access by way of a copy, the agency should provide access in accordance with the request by providing the applicant with a copy of the document (assuming no exceptions or exemptions apply). 

 

However, s 23(3) provides for three situations where access may be refused in the form requested by the applicant and access given in another form.  That is, where access in the requested form would:

  1. interfere unreasonably with the agency’s operations; or
  2. be detrimental to the preservation of the document or having regard to the physical nature of the document, would not be appropriate; or
  3. involve an infringement of copyright.

 

If an agency applies one of the above situations in s 23(3) it is making a decision under Part III of the FOI Act that the applicant is not entitled to access in accordance with the request.  This triggers the requirement to provide the applicant with a decision notice that sets out, amongst other things, the reasons for the decision and the applicant’s right to apply for a review of the decision.