You will be aware that the Government is reviewing administrative procedures and legislative provisions in relation to the operation of the Freedom of Information Act to enhance open and accountable government in New South Wales.

One of the matters raised for consideration in this review is the existence of, and the reliance upon, the "substantial and unreasonable diversion of resources" ground in refusing to deal with an application (section 22 FOI Act).

Section 22 (1) of the Act enables an agency to refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved in dealing with it would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. However, subsection (2) of section 22 provides that the agency must not refuse the application unless it has first endeavoured to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions.

The existence of the "substantial and unreasonable" provision in the Act ensures that agencies are not prevented from carrying out their normal functions by reason of the demands placed upon them by extensive and wide-ranging FOI requests. The provision is a necessary protection of the ability of agencies to discharge their usual functions.

However, the requirements of subsection 22 (2) provide a clear indication that agencies should assist applicants to amend their applications in order to avoid the "substantial and unreasonable'' ground for refusal. The intention, therefore, is that applications should be dealt with as far as possible and that agencies should refrain from invoking the ground for refusal if it can be avoided.

I consider that it would be in keeping with the spirit of the legislation to impose a further requirement upon agencies before they may refuse to deal with an application under section 22. That is, where an agency has endeavoured to assist an applicant to amend an application, but the work involved in dealing with the amended application would still involve the agency in a substantial and unreasonable diversion of resources, the agency should not automatically refuse to deal with the application under section 22. The agency should then negotiate with the applicant for a longer period of time within which it may comply with the request. This would enable the agency to spread the work involved in processing and assessing the application and the relevant documents over time, allowing the agency to conduct its normal operations without unreasonable interference from the demands of the FOI request.The agency and the applicant may agree to the application being dealt with in several stages, thereby "staggering" the time for compliance with parts of the request.

I consider that the implementation of these procedures will improve the operation of Freedom of Information in this State. The system of negotiation for additional time to comply with requests has been used in the Commonwealth FOI system with success. It is consistent with the general spirit and intent of the legislation and will further facilitate open and accountable government.

I would appreciate it if you would inform all agencies under the Freedom of Information Act within your administration of the terms of this Memorandum and request that they implement these administrative procedures in the future.

Yours sincerely

N  F Greiner MP

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superseded by M2007-11