Agency FOI Responsibilities: Office of the Information Commissioner

It is important to act in a way which furthers the objects of the FOI Act.  FOI officers should always bear the following concepts in mind:

• Can the request be dealt with outside the FOI process?  If so, this may lead to a better outcome for all parties.
• Engage in early and meaningful dialogue with the applicant to clarify the scope of the application.  This may help identify the documents the applicant really wants and stop the agency having to undertake unnecessary work.
• An agency may release an exempt document if there is no harm in doing so. Section 23(1) states only that an agency may refuse access to exempt information.
• The notice of decision is an important part of the FOI process and is crucial in ensuring that an applicant is afforded justice (sections 13(1)(b) and 30).

A decision-maker should document the process of consideration and decision-making in reaching a decision.  A notice of decision should outline this process in a way that demonstrates how and why the decision was reached and is justified.  The following questions are relevant to making a good decision and documenting that decision in the notice of decision.

For each exemption claimed:

• Have you clearly identified the documents or parts of documents in question?
• Have you read and understood previous decisions made by the Information Commissioner that deal with the particular exemption and how it should be applied?
• Does the claimed exemption contain several requirements that must be met for the document to be exempt?  Have you considered all aspects of the exemption clause?  Have you considered all the relevant limitations on the exemption?

If the exemption clause requires that a particular harm or consequence could follow from disclosure:

• Have you described the expected consequence in detail?
• Have you provided material to support your claim that the particular harm or consequence is one that can reasonably be expected?

If an exemption clause requires that a document be prepared for a specific purpose:

• Have you described the document or the factual circumstances surrounding the creation of the document to establish that it was prepared for that purpose?

Where an agency considers that a document is exempt under Schedule 1 to the FOI Act, section 23(1)(a) provides that the agency may refuse access to the document. Section 23 does not provide that an agency must refuse access.

In effect, this means that, when dealing with an access application, agencies have a discretion to release documents that may be technically exempt if they are of the view that no harm is likely to follow from disclosure of the information.

This is consistent with the objects of the FOI Act and the duties of agencies when applying the FOI Act.  In particular, agencies are to give effect to the FOI Act in a way that assists the public to obtain access to documents promptly and at the lowest reasonable cost (sections 3 and 4).

Agencies need to make their own judgment as to when it is appropriate to release documents that are technically exempt in any given case.

Some of the factors that might be relevant to the exercise of discretion when deciding to give access to documents include:

• the age of the document and whether the subject matter is current;
• whether a similar kind of information that is contained in the document has already been disclosed in another way (for example, media statements and - articles, website publication or parliamentary debates (Hansard));
• the interests of the access applicant; and
• the rights of and impact on third parties.

While an agency has a discretion to disclose exempt information, this does not remove the agency’s obligation to seek the views of third parties (section 32 and 33), if the agency intends to disclose information about those third parties when dealing with an access application.

This publication is designed to assist and encourage agencies to develop appropriate Open by Design policies and processes to facilitate effective information release beyond the formal access procedures outlined in the Freedom of Information Act 1992.

• Open by Design - FOI Act and Information Release in WA (PDF, 617 KB)

If the documents being sought contain information about a large number of third parties, the agency should seek to negotiate a mutually satisfactory outcome with the access applicant, for example by agreeing that information about third parties is not being sought.

If this is not successful, an agency may apply to the Information Commissioner for approval to make its decision on whether to give access to the relevant documents without complying with sections 32 or 33 of the FOI Act – that is, without seeking the views of third parties.  This is also called an application for a waiver.

Approval may only be given if the Commissioner is satisfied that:

• it would be unreasonable to require the views of third parties to be obtained having regard to the number of third parties that would have to be consulted; and
• the document does not contain matter that is exempt matter under clause 3 or 4 of Schedule 1 to the FOI Act.

For information about the requirements of an application for a waiver, see the FOI Coordinators Manual.

An agency must give an applicant a written notice of decision when it decides to:

• give access to a document;
• give access to an edited copy of a document;
• refuse access to a document (including on the basis that the document cannot be found or does not exist);
• refuse to deal with an access application;
• defer access under section 25;
• give access to a suitably qualified person under section 28; or
• impose a charge or require the payment of a deposit.

The notice of decision should outline the process of consideration and decision-making by the agency. It should enable the applicant to understand which documents are within the scope of the access application (including the number and type) and, where access is refused, all of the steps in the reasoning process involved in the agency deciding that the documents are exempt in full or in part (section 30).

An agency may provide a schedule of documents with its notice of decision. Although this is not required by the FOI Act, the use of a schedule can enable an agency to organise basic facts concerning the documents that are in issue.

TIP: Beware of inadvertently disclosing exempt matter, such as names of third parties, including in any description of documents in the schedule.

Reasons for Decision

The onus is on the agency to justify any decisions that are adverse to the applicant or third party.

If the decision is to refuse access to documents, the notice of decision must contain the reasons for that decision and the exemption that applies. The decision should set out:

• what documents are in issue, describing them as fully as possible without revealing exempt matter;
• what exemptions are claimed for individual documents or parts of documents;
• why those exemptions apply to specific documents or parts of documents;
• what is likely to happen if the information is disclosed and why those consequences could reasonably be expected to result from disclosure;
• why the expected consequences of disclosure are so important as to justify a refusal of access; and
• where applicable, the public interest factors that favour non-disclosure and why those factors were given more weight than the ones favouring disclosure.

TIP: Remember to set out the applicant’s review rights in the notice of decision.

The objects of the FOI Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public. For this reason, when dealing with requests for documents or making decisions under the Act, agencies are not merely complying with an administrative process. They are dispensing justice to the people of Western Australia.

This may require thinking outside the FOI box.

One of the most effective things agencies can do to achieve the objects of the Act is to disclose information outside the FOI process unless there is a good reason not to do so. This can be done by proactively publishing information, or by providing requested information without the need for a formal FOI application.

Even a formal access application does not prevent agencies from engaging in open and meaningful dialogue with an applicant with a view to finding an outcome which meets the person’s needs. For example, an applicant may be able to obtain access to the requested documents more quickly and at lesser cost if the applicant agrees to exclude unwanted information from the scope of the application.

When the decision is made, the requirements for a valid notice of decision are described in the Act. These requirements need to be followed. However, an FOI decision-maker can go further than the requirements by asking: Would I understand the decision? Would I feel that my interests and arguments have been taken into account? Would I consider that I have been given a thorough and fair hearing?

A good notice of decision will allow all of these questions to be answered “yes”.

When a complaint (application for external review) has been made to the Information Commissioner about an agency’s decision under the FOI Act, the Commissioner will usually require written submissions from the agency to support the agency’s decision if the decision does not sufficiently describe the relevant reasons for the decision.  

If an agency has refused an applicant access to documents on the grounds that they are exempt, the Commissioner will expect the agency to provide full reasons why the claimed exemption or exemptions apply to the documents that are in dispute.

Many of the exemption clauses have a number of parts or elements, each of which must be satisfied for the exemption to apply. The Commissioner will expect that the reasons given by an agency will support each part of an exemption clause.

If an agency is directed to provide information to the Commissioner, it must provide it within the time required by the Commissioner.  Sections 70 to 76 set out how the Commissioner may obtain information from various sources.  Section 83 provides a penalty for failure to provide information in certain circumstances.

The FOI Act requires agencies (other than Ministers or exempt agencies) to publish certain information about their operations, policies and practices, especially those that directly affect the lives of citizens.  Publication requirements include an up-to-date Information Statement and internal manuals, and agencies must make copies of those documents available for inspection and purchase by members of the public.

The Information Commissioner encourages agencies to provide as much useful information as is practicable in both Information Statements and internal manuals, and to make these documents readily available and easy to understand.

Internal manuals

Internal manuals are defined to include policy manuals and documents containing rules, guidelines and practices used by an agency in connection with the performance of its functions, which are likely to affect public rights, privileges, benefits, obligations or penalties (section 95). The definition makes it clear that the kinds of documents that must be published are more than mere handbooks of instructions.

Internal manuals are the kinds of documents that structure decision-making in agencies.  They are invaluable tools that assist the public to find out why agencies reach decisions about, for example, eligibility for benefits or assistance, or the criteria to qualify for support from the agency.

Information Statements

At intervals of not more than 12 months, each agency is required to ensure that an up-to-date Information Statement about the agency is published (section 96).

An agency’s Information Statement should inform the public of the structure and functions of the agency, outline the types of documents held by the agency, and explain how the agency’s documents can be accessed by the public (section 94).

A good Information Statement can be a very useful resource for both agencies and members of the public.

As part of their annual review of Information Statements, agencies should periodically review what information they routinely make available to the public outside the FOI process.

Agencies have the option of publishing their Information Statements as stand-alone documents or incorporated in their Annual Reports.

Where an Information Statement is produced as a stand-alone document, reference to its existence and details of how it can be inspected or purchased should be contained in the agency's Annual Report.

An agency must also provide a copy of its statement to the Information Commissioner as soon as practicable after the statement is published or a new edition produced (section 97). If the Information Statement is not changed between editions, the agency need only notify the Information Commissioner that the statement has been reviewed and is still current. Where minor amendments are made to an existing statement, copies of the amended pages may be forwarded in lieu of the entire document, if feasible.