Understanding Section 25A(1) and 25A(5) of the FOI Act
This content discusses the purpose, scope, and operation of Sections 25A(1) and 25A(5) under the FOI Act. It covers the processes involved in making a fresh decision, insights from the OVIC Annual Report data, challenges faced by agencies in applying Section 25A(1), and real-life case examples related to FOI requests. Additionally, it emphasizes the importance of consultation requirements and the need for agencies to establish clear grounds for refusal. The Practice Note 13 sheds light on substantial and unreasonable requests, providing valuable guidance for agencies and applicants alike.
Uploaded on Oct 01, 2024 | 0 Views
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
Information Access Series Sections 25A(1) and 25A(5) Making a fresh decision under the FOI Act The purpose, scope and operation of section 39 15 April 2021
Sections 25A(1) and 25A(5)
3 Sections 25A(1) and 25A(5) 2019-2020 OVIC Annual Report data Not in the top 5 most used exemptions applied by Agencies (the top 5 are 33, 38, 31, 30, 35). 25A(1) claimed by Agencies 404 times 25A(5) claimed by Agencies 252 times Significant amount of OVIC FOI reviews Freedom of Information | Privacy | Data Protection
4 Practice Note 13 Section 25A(1) Link to Practice Note 13: https://ovic.vic.gov.au/resource/substantial-and- unreasonable-requests-section-25a1/ The requirements of section 25A(1) are not easily satisfied. There is no magic figure for what number of documents will constitute a voluminous request . It will depend on the facts of each case. An agency that refuses access under section 25A(1) bears the onus of establishing the requirements of the section have been met. The Victorian Civil and Administrative Tribunal (the Tribunal) and the courts will strictly uphold the requirements of section 25A, particularly section 25A(6). Section 25A(1) should only be applied to a clear case of substantial and unreasonable diversion. Freedom of Information | Privacy | Data Protection
5 Section 25A(1) case examples BO4 and Parks Victoria (Freedom Of Information) [2020] VICmr 138 (19 May 2020) Link to decision: https://ovic.vic.gov.au/decision/bo4-and-parks-victoria-freedom-of- information-2020-vicmr-138-19-may-2020/ On the information before me, there does not appear to be any exchange of correspondence before the decision to refuse the request was made. I am not satisfied the requirements for refusal to grant access to documents in accordance with section 25A(1) are met on grounds the Agency did not consult with the Applicant in accordance with the mandatory consultation requirement under section 25A(6). Freedom of Information | Privacy | Data Protection
6 Section 25A(1) case examples continued BG7 And Victoria Police (Freedom Of Information) [2020] VICmr 67 (13 March 2020) Link to decision: https://ovic.vic.gov.au/decision/bg7-and-victoria-police-freedom-of- information-2020-vicmr-67-13-march-2020/ Applicant seeking documents about themselves. The Agency advised the documents included 105 pages, 7 photobooks which at an early estimate would be well over 50 pages, Interpose report [is] 4 pages, CCTV [is] 4 minutes. I do not consider this to be a large number of pages given the nature of the documents sought and the Agency s likely familiarity with such documents and experience in processing similar requests. Freedom of Information | Privacy | Data Protection
7 Practice Note 14 - Section 25A(5) Link to Practice Note 14: https://ovic.vic.gov.au/resource/requests-for-documents-that- are-obviously-exempt-section-25a5/ The rules of procedural fairness require a decision maker to give a person an opportunity to respond before making an adverse decision affecting their rights or interests. Agencies and Ministers should engage with applicants at an early stage with a view to assisting them to rescope their request so as to avoid the possible use of section 25A(5). This is despite the absence of an express requirement to do so under the Act. Freedom of Information | Privacy | Data Protection
8 Section 25A(5) case examples BJ8 and Victoria Police (Freedom Of Information) [2020] VICmr 96 (30 March 2020) Link to decision: https://ovic.vic.gov.au/resource/requests-for-documents-that-are- obviously-exempt-section-25a5/ Applicant sought multiple interviews between Agency officers and named third parties that occurred at specified dates and times. Agency demonstrated section 38 applied in conjunction with the Crimes Act 1958. Deputy Commissioner satisfied all requirements of section 25A(5) met. Freedom of Information | Privacy | Data Protection
9 Section 25A(5) case examples continued CP4 and Department of Premier and Cabinet (Freedom of Information) [2021] VICmr 30 (29 January 2021) Link to decision: https://ovic.vic.gov.au/decision/cp4-and-department-of-premier-and- cabinet-freedom-of-information-2021-vicmr-30-29-january-2021/ Request for documents relating to the recruitment of a named person to the agency. Agency determined all documents would be exempt under section 33(1). Public Access Deputy Commissioner did not agree that it was apparent, from the nature of the documents as described in the request, that all documents would be exempt under section 33(1) given the scope of the request. Freedom of Information | Privacy | Data Protection
Fresh decisions
11 Reconsidering an original decision under the FOI Act An agency or Minister may reconsider its original decision on an applicant s FOI request and make a fresh decision in two instances: (1) Referral back to an agency or Minister by the Information Commissioner (section 49L); or (2) On the agency s or Ministers own initiative (section 49M). Freedom of Information | Privacy | Data Protection
12 Section 49M Reconsideration at an agency or Minister s own initiative Spirit of section 49M/Legislative intention: To allow an agency or minister to remedy the first decision Freedom of Information | Privacy | Data Protection
13 When can an agency or Minister reconsider their original decision? Anytime during the review One chance only Freedom of Information | Privacy | Data Protection
14 Why reconsider the original decision? Reasons include: Additional documents found; Change of circumstances (information is no longer sensitive, passage of time etc); Exemptions are no longer relevant; Additional exemptions to strengthen position; and After an initiation by OVIC to reconsider the original decision. Freedom of Information | Privacy | Data Protection
15 Notification requirements Intention to make a fresh decision Must be in writing Must be sent to both the Applicant and the Information Commissioner Freedom of Information | Privacy | Data Protection
16 Timeframe to make a fresh decision Within 28 days after notification; or Any other agreed period. Extension can be sought by written agreement between the agency or Minister and the Information Commissioner (section 49M(2)). Freedom of Information | Privacy | Data Protection
17 Notification requirements Was a fresh decision made? Must notify the Information Commissioner within 3 business days of the fresh decision due date whether: a) a fresh decision has been made; or b) a fresh decision has not been made. No requirement to provide Information Commissioner with a copy of fresh decision at this stage. Freedom of Information | Privacy | Data Protection
18 No fresh decision made or Fresh decision not made in time Review recommences on original decision; and The agency or Minister may make further submissions. Freedom of Information | Privacy | Data Protection
19 What should be included in the fresh decision? The Applicant should be informed: The original decision is revoked; About the requirement under section 49M(6); About the effect of section 49M(7). Freedom of Information | Privacy | Data Protection
20 Section 49M(6) The Applicant is required to advise the Information Commissioner within 28 days of being notified of the fresh decision as to whether or not they agree with the fresh decision. Freedom of Information | Privacy | Data Protection
21 Section 49M(7) If the Applicant fails to advise the Information Commissioner in time, the Applicant is taken to agree with the fresh decision. Freedom of Information | Privacy | Data Protection
22 What happens when an Applicant agrees with the fresh decision? An Applicant can agree to a fresh decision in two ways: (1) By notification to the Information Commissioner in time; or (2) By default by failing to notify the Information Commissioner in time. What happens next? The review is dismissed Freedom of Information | Privacy | Data Protection
23 What happens when an Applicant does not agree with an Agency s fresh decision? Review will be based on the fresh decision. The Information Commissioner may request the following from the Agency or Minister: A copy of the fresh decision; and A copy of the documents subject to review (if necessary) The Information Commissioner will also invite the Agency or Minister to make a submission within 14 days. The Information Commissioner cannot review a fresh decision if the decision is to refuse access under section 29A (documents affecting national security, defence or international relations). Freedom of Information | Privacy | Data Protection
24 Fresh decision conduct A good fresh decision conduct: Made in time; Additional information released to the Applicant; The Applicant is informed of their rights and obligations under the FOI Act; and OVIC is provided with a copy of the fresh decision In contrast: Additional exemptions applied; and/or VS The decision is made more complex. Freedom of Information | Privacy | Data Protection
26 Section 39 A person may request an amendment of record Section 39 provides: Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression. Freedom of Information | Privacy | Data Protection
27 Purpose of section 39 What it is for: Section 39 is about ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. It is concerned that the third persons reading the personal information do not get the wrong impression. It is to safeguard against this occurring, that rights are given to an applicant under section 39, to correct his personal record. G v Health Commission of Victoria (unreported, Vic County Ct, Rendit J, 13 September 1984), p 10, Judge Rendit Freedom of Information | Privacy | Data Protection
28 Purpose of section 39 What it is not for: The amendment procedure cannot be used to rewrite history or to provide an avenue for disputing an agency s decision. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24], Ipp JA it is unarguable that s 39 is about words, not legal rights or actions which have stemmed from the recording of discussions or proceedings. Setterfield v Chisholm Institute of Technology (No 2) (1986) 1 VAR 202 at 208-9, Lewis PM Freedom of Information | Privacy | Data Protection
29 Purpose of section 39 What it is not for: Section 39 is also not the correct mechanism for an Applicant to update information that is no longer current with an Agency. Freedom of Information | Privacy | Data Protection
30 Scope of section 39 Section 39 provides: Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression. Freedom of Information | Privacy | Data Protection
31 Scope of section 39 person who is the subject of that information Any person (including a representative of a deceased person s next of kin) Section 39 relates solely to individuals and not corporations Melbourne University v Robinson [1993] 2 VR 177 Justice Eames, The Supreme Court of Victoria Court of Appeal Freedom of Information | Privacy | Data Protection
32 Scope of section 39 personal affairs information The AAT in Griffiths v Victoria Police (1987) 2 VAR 595 took the ordinary meaning approach referring to Shorter Oxford English Dictionary definition of personal which is: of, pertaining to, concerning or affecting the individual person or self; individual; private; one s own In contrast Re Al-Hakim and Monash University in 2001, VCAT observed (at [15]) that it is "perhaps open to debate" whether the extension of the concept of "information relating to the personal affairs of any person" found in section 33(9) of the FOI Act is to be regarded as being applicable to the expression "information relating to the personal affairs of a person" found in section 39. Freedom of Information | Privacy | Data Protection
33 Scope of section 39 inaccurate, incomplete, out of date, or where it would give a misleading impression Information will not be considered misleading, inaccurate, out of date or incomplete simply because an applicant disagrees with a determination or outcome made by an agency or other relevant authority. The fact that an event happened in the past does not of itself make information in respect of that event "out of date". G v Health Commission of Victoria, at page 9: There is a difference between a misleading impression and an inaccuracy, although each will overlap the other to a large extent. One can readily envisage circumstances where the recorded facts are inaccurate, and also give a misleading impression. Equally, recorded facts which are accurate may yet give a misleading impression, either because of incompleteness or because the language used in recording the facts, whilst accurate, yet would convey a misleading impression. Freedom of Information | Privacy | Data Protection
34 Operation of section 39 Part V - Amendment of Personal Records (39) Person may request amendment of record (40) Form of request for amendment of record (41) Agency or Minister may amend record (42) Notation on record (43) Time within which agency or Minister must notify claimant (44) When section 26 to apply (45) When section 27 to apply (46) Where request refused (47) Notice to be added to the record (48) Notice may be given to persons who received the information prior to commencement of section (49) How corrections or amendments are made Freedom of Information | Privacy | Data Protection
35 Operation of section 39 Form Section 40: A request under section 39 must be: a) made in writing; b) specify an address to which the notice under section 43 may be sent; c) provide the particulars of the matter by identifying: the specific record held by the agency/Minister; and within the record, what specific information is incomplete, incorrect, out of date or misleading and specify the type of amendment to be made. Freedom of Information | Privacy | Data Protection
36 Operation of section 39 Timing Section 43: An agency or Minister shall take or reasonable steps to notify a claimant of a decision on the request as soon as practicable, but no later than 30 days after the day in which the request is received by the agency or Minister. Freedom of Information | Privacy | Data Protection
37 Operation of section 39 Amendment or notation? Section 41 gives the power to make an amendment, either by altering the record or by adding an appropriate notation to the record at the Agency s discretion. However Section 49 provides: Where it has been acceded by an agency to amend a record, a correction or amendment it may make a notation to the original record however: no correction or amendment can expunge the record or destroy the original document, unless with the permission of the Keeper of Public records. Freedom of Information | Privacy | Data Protection
38 Operation of section 39 BF3 and Victoria Police (Freedom of Information) [2020] VICmr 54 (10 March 2020) Please add my comments to the Incident of [date], which is on the Victorian LEAP [Law Enforcement Assistance Program] report; [Applicant s name] (me) was in the drive way of my home, speaking with [two third parties], when two police cars spent down my drive way. Two Police grab me, hand cuffed me with my hand behind my back, one police forced my head down, the other police kneed me to the left side of my head. The two other police broke into my home (I was the only person living in the house); then I was pushed into the police van, which then proceeded to do Rig, Sag s for two kil ms up a dirt road to the [location] police Station. Two of the officers interviewed me and were told by Sgt [name] to get their story right , the four Police were charged by my solicitor and barrister. Freedom of Information | Privacy | Data Protection
39 Operation of section 39 CG8 and Victoria Police (Freedom of Information) [2020] VICmr 311 (9 November 2020) No. Document Page Information in document Why is it incorrect What should the amendment state Police report [number] Paragraph 4 a [gender] approached from within 2 vehicles and walked out in front of the driver without checking for traffic and failing to use the pedestrian crossing Correct statement should be a [gender] pedestrian was walking on the pedestrian crossing, the driver failed to stop and hit the [gender] pedestrian who was walking on pedestrian cross 1 Page 1 This information is misleading Police report [number] This information is incomplete [named Police Officer] in charge of this case advised that the driver failed to give way to [gender] pedestrian and hit [the pedestrian], driver has already been issued an infringement notice and has been prosecuted , this information didn t reflect on the report 2 Page 1 Paragraph 4 Police report [number] Section 3 Pedestrian Statistics hospital name [hospital name] Section 3 Pedestrian Statistics hospital name [hospital name] 3 Page 2 This information is incorrect Police report [number] This information is incomplete The [gender] pedestrian wanted to give written statement to [named Police Officer] but was told not necessary. Now [gender] pedestrian received the police report which is quite different to the fact and truth. 4 Page 2 Section 3 Pedestrian no written statement Freedom of Information | Privacy | Data Protection
40 Operation of section 39 CG8 and Victoria Police (Freedom of Information) [2020] VICmr 311 (9 November 2020) No. Document Page Information in document Why is it incorrect What should the amendment state Police report [number] Paragraph 4 a [gender] approached from within 2 vehicles and walked out in front of the driver without checking for traffic and failing to use the pedestrian crossing This information is misleading Correct statement should be a [gender] pedestrian was walking on the pedestrian crossing, the driver failed to stop and hit the [gender] pedestrian who was walking on pedestrian cross 1 Page 1 Police report [number] This information is incomplete [named Police Officer] in charge of this case advised that the driver failed to give way to [gender] pedestrian and hit [the pedestrian], driver has already been issued an infringement notice and has been prosecuted , this information didn t reflect on the report 2 Page 1 Paragraph 4 Police report [number] Section 3 Pedestrian Statistics hospital name [hospital name] Section 3 Pedestrian Statistics hospital name [hospital name] 3 Page 2 This information is incorrect Police report [number] This information is incomplete The [gender] pedestrian wanted to give written statement to [named Police Officer] but was told not necessary. Now [gender] pedestrian received the police report which is quite different to the fact and truth. 4 Page 2 Section 3 Pedestrian no written statement Freedom of Information | Privacy | Data Protection
42 Contact us OVIC contact details T: 1300 00 6842 E: enquiries@ovic.vic.gov.au www.ovic.vic.gov.au Freedom of Information | Privacy | Data Protection
