Key Points:

Estimates of processing freedom of information requests should not include time to search and review related information that may justify a need to consult with third parties.

Scoping out the size and complexity of processing an FOI request is an important first step for any FOI decision-maker, and the Administrative Appeals Tribunal has given some important guidance on it in a recent case (Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995).

The FOI application to access diary entries

The shadow attorney-General made an FOI application for access to the Attorney-General's diary for a specific period, but he did not seek access to any invitations, correspondence or background/briefing documents that might have been attached to it.

Under sections 27 and 27A of the Freedom of Information Act 1982, agencies and Ministers must consult with businesses and individuals if they might reasonably wish to make a submission that the documents in question should not be disclosed because they are exempt under the FOI Act.

The Attorney-General interpreted this as requiring him to review the documents relating to each diary entry to determine whether those businesses and individuals might reasonably wish to make a submission that the particular entries should not have been disclosed. As a result, he estimated it would take between 130 and 526 hours to consult with third parties identified in the diary entries, and that the entire request would take at least 228, and up to 630, hours to process. As the FOI Act allows decision-makers to refuse to process FOI requests if they would unreasonably interfere with the performance of their duties, the Attorney-General refused to process the FOI request. The matter went to the Administrative Appeals Tribunal.

How far does the need to consult as part of processing FOI applications go?

The Administrative Appeals Tribunal highlighted that any estimate of processing time could only take into account steps that were required under the FOI Act. An estimate could not include time spent consulting with third parties if those consultations were not required under the FOI Act.

In determining whether consultation was required under the FOI Act, a decision-maker was to have regard only to the face of the document to which access was sought, or particular circumstances known to the decision-maker. The FOI Act did not oblige decision-makers to search for, or inquire about, a need for consultation.

Turning to the nature of the diary entries themselves, many of the entries merely stated the names of persons meeting with the Attorney-General. In those circumstances the Tribunal considered there was no basis upon which persons named in the diary entries might reasonably wish to make an exemption submission.

How should FOI decision-makers estimate processing times?

The Attorney-General has filed an appeal, so this might not be the last word on this issue.

Until the Full Federal Court hands down its judgment, however, FOI decision-makers should:

  • focus their attention on the face of requested documents when estimating the time required to process an access request;
  • ideally be able to justify estimates ‒ so any time spent consulting with third parties should be estimated by reference to the information contained in the documents or circumstances known to the decision-maker; and
  • exclude from an estimate any time needed to search and review related information that may justify a need to consult with third parties.