the solution

From the Executive Director

"Purely factual material" - an easy one to get wrong

There is a misunderstanding out in "FOI Land" about whether the internal working documents exemption in s 30 of the Freedom of Information Act 1982 ("FOI Act") can apply to a document or parts of a document if it contains factual information.

 

There are common errors in belief that the exemption is not available if a document contains factual information or purely factual material.  It stems from a misunderstanding of s 30(3) of the FOI Act which provides:

"This section does not apply to a document by reason only of purely factual material contained in the document."

What this provision does not say is:

  • the exemption does not apply to purely factual matter in a document (unfortunately, this is a common phrase used erroneously in OVIC decisions);
  • the exemption does not apply to factual material; 
  • purely factual information will not be exempt under s 30(1) (again, unfortunately, this is a common misstatement used by OVIC).

Further, contrary to OVIC decisions, just because information is factual in nature or descriptive in nature does not mean it is "purely factual material" and cannot be the subject of exemption under s 30(1).  

 

Section 30(3) means that exemption in s 30(1) cannot apply if the only reason a document would otherwise satisfy the exemption in s 30(1) is because of purely factual material contained in a document.  For example, you could have a document which contains a lot of or even mostly factual material.  It is not opinion, advice or recommendation (ie one aspect of the exemption is not satisfied), but it can still be matter in the nature of consultation or deliberation - it can be provided from one officer to another as part of the deliberative process.  In that example, if it is only because of that factual material that the exemption is being triggered (assuming the other elements of s 30(1) are also satisfied) the effect of s 30(3) is that the exemption cannot apply.

 

As you can see, there is marked difference between what the section says and what is misunderstood out in FOI Land. 

 

If you have any queries or would like advice about how this may impact any decisions you make or whether to seek review of any OVIC decisions, please do not hesitate to contact us.