As some readers may know, I have recently taken a sabbatical from e-discovery for the foreseeable future. I authored the following article earlier this year, but until today, it remained unpublished. I hope that you find it beneficial (or at least, interesting!)
Since I drafted the article, the Office of the Australian Information Commissioner released an updated version of their FOI Guidelines and the Freedom of Information Commissioner issued a decision in Parnell and Minister for Infrastructure and Transport  AICmr 3 (11 April 2011).
Recent reforms to freedom of information (FOI) law in Australia have received significant media attention for their intent to improve public access to information. However, FOI is also readily used by parties involved in civil litigation as an alternative to making an application for a government agency to give discovery, either as a party or non-party, to the proceeding.
Similar to discovery, government agencies must comply with certain obligations when searching for documents subject to an FOI request. This article explores FOI search obligations imposed on Commonwealth government agencies under the Freedom of Information Act 1982 (Cth) (FOI Act).
What does an agency need to search for?
The FOI Act sets out, amongst other things, a process to enable a person to access documents held by a government agency. When an applicant makes a valid access request under Part III of the FOI Act, the government agency must search for “documents of the agency”. This is generally limited to documents in the possession of the government agency.
The term “document” is broadly defined and expressly includes:
- electronic documents; and
- any part, copy, reproduction or duplicate of a document.
Draft versions of a document are also generally accepted to fall within the definition of a “document”.
Some documents may also fall within the definition of an “exempt document”. That is, documents that are exempt or conditionally exempt from access because they fall within an exemption listed in Part IV of the FOI Act. This may include documents in relation to national security, defence, international relations, law enforcement, Cabinet documents and legal professional privilege.
How does the agency need to make its search?
When a party is ordered to give discovery as part of a civil litigation proceeding, the party must undertake a “reasonable search” for discoverable documents. Similarly, section 24A of the FOI Act sets out that where an agency cannot find a requested document or believes that the requested document does not exist, it can only refuse access where it is satisfied that it has taken “all reasonable steps” to search for the requested document.
In Chu v Telstra Corporation Limited  FCA 1730, Justice Finn emphasised the obligation imposed by the “all” in “all reasonable steps” and noted that “Taking all reasonable steps necessary …may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised”.
What does the agency need to do to take “all reasonable steps”?
Before recent FOI reforms, a person could appeal an original decision to allow or refuse access to documents for internal review. In turn, any internal review decision could be appealed to the Administrative Appeals Tribunal and beyond. Alternatively, a person could make a complaint to the Commonwealth Ombudsman.
Internal review is now optional and a person can directly appeal to the Information Commissioner to review the agency’s original decision. To date, the Information Commissioner has not made a decision in relation to section 24A. That said, recent case law from the Administrative Appeals Tribunal provides a number of considerations for an agency to satisfy itself that it has taken “all reasonable steps” to search for requested documents.
In Langer and Telstra Corporation Limited  AATA 341, Deputy President Forgie considered the following as relevant when determining whether an agency had taken “all reasonable steps”:
- the subject matter of the documents requested;
- the file management systems in place;
- any destruction schedules followed; and
- steps that have already been taken to locate documents within the terms of the request.
These considerations are generally known as the “Langer test”.
In Re Viewcross Services and Telstra Corporation Limited  AATA 1025, Senior Member Dwyer generally followed the Langer test and also considered the attitude of the person making the request where the agency requests their assistance to guide further searches for the requested documents.
In Mester & Anor and Centrelink  AATA 354, Senior Member Dwyer followed the Langer test and was not satisfied that Centrelink had taken “all reasonable steps” to search for requested documents in relation to alleged disability support pension overpayments to a couple who relied on social security as their income.
Senior Member Dwyer considered that a search constituting “all reasonable steps” should include the consultation with persons within the agency who are familiar with:
- the subject matter of the documents requested, including the type of documents created or correspondence sent in the relevant period; and
- any destruction schedules followed in relation to the documents requested.
In Maksimovic and the Commonwealth Director of Public Prosecutions  AATA 700, Member Fice was satisfied that the CDPP had undertaken “all reasonable steps” to search for requested documents in relation to the decision to initiate his prosecution.
Member Fice considered the following as relevant:
- extensive enquiries with persons familiar with the subject matter; and
- extensive searches for electronic and paper documents.
In Ugur and Australian Human Rights Commission  AATA 144, Senior Member Britton was satisfied that the AHRC had undertaken “all reasonable steps” to search for requested documents in relation to Mr Ugur’s personal files. Senior Member Britton considered the following as relevant:
- the significant number of documents already released;
- the diverse and different types of documents located;
- the range of sources from which the documents had been obtained;
- both electronic and physical records were searched;
- two searches were undertaken and by different people; and
- the search was conducted across all sections of the agency.
In Matthews and Australian Securities and Investments Commission & Ors  AATA 649, Deputy President Forgie was ultimately satisfied that ASIC had undertaken “all reasonable steps” to search for requested documents in relation to an ASIC Policy Statement and various ASIC investigations.
However, ASIC’s approach was not without criticism and Deputy President Forgie noted “…My concern is that the way in which documents have been located has given [ASIC’s] searches the air of being somewhat piecemeal”. Deputy President Forgie noted that ASIC’s internal FOI guide would ideally include information as to how ASIC manages its documents, what documents it keeps, why it keeps them and their retention period.
Deputy President Forgie’s approach was consistent with the Langer test that she devised, but also set out the following additional considerations:
- the adequacy of the agency’s record keeping policy;
- the categories of documents that should be retained; and
- whether there are any apparent gaps in the logical flow of documents that one would expect to see.
Additional considerations for complex or voluminous access requests
It is important to remember a general objective of the FOI Act is to “facilitate and promote public access to information, promptly and at the lowest reasonable cost”.
Agree on search scope
Section 24 sets out a process for an agency to refuse an access request where, following a request consultation process with the person, the access request would “substantially and unreasonably divert the resources of the agency from its other operations”. This means that the obligation to take “all reasonable steps” to find a document may arguably only be satisfied when the agency and the person agree on the scope of documents that fall within the access request.
In Novak and Australian Federal Police  AATA 219, Member Webb noted that a person who raises a dispute in relation to “missing documents” identified from documents provided in response to an access request, should raise those concerns as early as possible to enable the agency to better understand the access request and guide any further searches.
Use available time
Section 15AB enables an agency to apply to the Information Commissioner for a time extension to search for documents and make their original decision. That said, the agency must satisfy the Information Commissioner that the request is complex or voluminous and that the standard 30-day period is insufficient.
Use technology where appropriate
The agency may consider relying on sections 17 and 20 of the FOI Act to provide access to documents arising from requests involving electronic documents, including data stored in electronic databases.
The considerations set out in Langer and more recent case law provide guidance for an agency to satisfy itself, and as necessary, the Information Commissioner or the Tribunal, in relation to the adequacy of its search for documents subject to an access request.
These considerations may be summarised as follows:
- the subject matter of the documents requested, and whether knowledgeable people in the agency have been consulted as part of the search;
- the paper and electronic document management systems used by agency, and whether searches have been made across all relevant systems;
- the document retention and destruction practices of the agency, and whether the practices have been consistently followed in relation to the documents sought;
- the documents provided as part of earlier searches, and whether there are any apparent gaps in the logical flow of documents that one would expect to see; and
- the attitude of the person making the request when the agency requests their assistance to guide further searches for the documents sought.