The Ombudsman recently submitted to the Premier's Department pursuant to section 26(3) of the Ombudsman Act, a copy of the findings of an investigation in respect of a particular Government department. The findings and subsequent recommendations in the Ombudsman's report related to the conduct of officers in respect of the processing of applications under the Freedom of Information Act.

In the report the Ombudsman stated that it may be appropriate and helpful for the attached advice from the Ombudsman to be given to all organisations that are 'agencies' for the purposes of the Freedom of Information Act.

As the FOI Act places upon each individual agency the responsibility for making determinations relating to requests for access to documents, I would draw to the attention of all officers who are involved in the processing of such applications, the attached advice from the Ombudsman. Any queries in relation to the attached advice should be directed to the Ombudsman's Office.

R.B. Wilkins,
Acting Director-General.

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superseded by M2007-11

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ANNEXURE

RECOMMENDATIONS FROM THE OMBUDSMAN REGARDING IMPLEMENTATION OF THE FOI ACT

1. Time in which determinations are to be made:

• firstly, a deadline of 21 days from the date of receipt of the application; and
• secondly, a requirement that applications be dealt with 'as soon as practicable' within this 21 day period.

  2. Honesty in identifying documents:

  2.1 The honesty with which an agency and its officials approach the question of whether or not the agency holds documents the subject of ail FOI application is essential to the whole concept of FOI. It determines whether the FOI legislation will work or not.

  2.2 When an agency holds documents containing information which, on a reasonable interpretation of the terms of the FOI application are covered by those terms, then those documents should be considered to be covered by the application and assessed appropriately.

  3. Negotiation with applicants to identify documents:

  3.1 Section 19(1) of the FOI Act requires agencies to negotiate with applicants to assist them to provide sufficient information to enable the agency to identify the documents to which an FOI application relates.

  3.2 It must be expected that applicants will rarely, if ever, be in a position to describe, in the particular language of the agency, the documents which the applicant seeks. It is the agency's responsibility to recognise this principle and make due concessions to an applicant in its analysis of FOI applications. This is a basic and essential procedural requirement of FOI.

  3.3 While the statutory obligation is stated to apply only to the acceptance of applications, logic and fairness dictate that the principle propounded in section 19(1) should also be applied to the assessment of FOI applications. If there is a genuine doubt as to whether an applicant wants particular documents, consultations with the applicant should always occur under the terms and/or spirit of section 19(1).

  4. Independence of internal reviews:

  4.1 The FOI Act provides that when an FOI application is initially determined by an officer of an agency, other than its principal officer, a person aggrieved by the determination is entitled to an internal review of the determination (see section 34(1) & (3) of the Act). An application for an internal review is not to be dealt with by the person who dealt with the original application or by a person who is subordinate to that person (see section 34(5) of the Act).

  4.2 It is important to look at the purpose of the legislative provision which creates the right of internal review. From its terms, it appears that the purpose of section 34 of the FOI Act is to provide for a full and proper review of the merits of the original decision.

  4.3 To achieve a proper review of the merits of a decision, the Act requires that the review must be carried out by a person unconnected with the original decision and not subordinate to the original decision-maker. It is therefore essential that there be appropriate separation between the initial decision-maker and any probable internal reviewer to ensure that the initial decision-maker is not influenced by the views of the likely internal reviewer (being the principal officer or other superior) when making the initial determination. In this regard internal reviews must not only be independent, but must be seen to be independent.

  4.4 This is not to say that it is inappropriate for the initial decision-maker and likely internal reviewer to discuss, in theoretical terms, issues relating to the proper interpretation of particular provisions of the FOI Act or for that matter relevant Departmental policies or practices.

  5. Involvement of Ministers:

  5.1 It is not unreasonable that an agency notifies its Minister, or the Minister's office, of the receipt of FOI applications and the determination of such applications. However, the identity and motive of an FOI applicant are irrelevant considerations in the determination of the application. Agency officers determining FOI applications must therefore be careful not to allow inappropriate matters to influence the exercise of their statutory responsibilities.

  5.2 It is essential that determinations of FOI applications are made by the agency on the merits, based solely on the criteria set out in the FOI Act and independent of any political influence or considerations. It would be in the interests of agencies to ensure that their Ministers, and the staff in their Ministers' offices, are made aware of this.