ADT FOI decision includes detailed examination of diversion of resources issues

In another FOI decision concerning the applicant’s requests for documents about the sale of the Sydney Markets, the ADT in Cianfrano v Premier’s Department (2006) NSWADT 137 has provided the most detailed analysis to date of the interpretation of the “substantial and unreasonable diversion of agency resources” grounds for refusing access.

The Tribunal accepted the estimate provided by a consultant employed by the Premier’s Department that the work involved would require 229 hours to read, schedule, consult third parties and undertake associated administrative tasks concerning the 11,400 relevant documents.

The ADT upheld the Department's determination to refuse access on these grounds.

In previous cases where this issue has been considered the Tribunal has not spelled out detailed criteria for the assessment of “substantial” diversion and has not attached much weight to the term “unreasonable”. This decision (paragraph 62) provides a list of relevant factors to be taken into account in judging substantial diversion, including the importance of the documents to the applicant; and (in paragraph 48) says that regard must be given to the public significance of the matters the subject of the request.

The ADT did not stipulate a limit for the hours involved but noted that the Premier’s Department annual report cites 40 hours processing time at the top end of the scale. It would be incorrect however to simply base a judgement on the time involved, as other factors set out in the decision also need to be taken into account.

The Tribunal said that in considering resource issues it was appropriate to take into account time involved in identifying, collecting, scheduling, assessing and copying relevant documents and any consultation with third parities where required.

The ADT was critical of the Premier’s Department’s original determination and its failure to give any reasons in support of the claim of unreasonable diversion of resources. The Tribunal said this was a breach of the Department’s own guidelines. The FOI Procedure Manual page 79 states that more is required than “just telling an applicant that his or her application is too broad. Where an agency uses these grounds to refuse to deal with an application, the reason needs to be documented and justified”.

There is no mention in the decision of another possibly relevant policy - this 1991 memorandum to ministers from the then Premier requires an agency to not refuse to deal with an application on diversion of resource grounds before seeking “to negotiate with the applicant for a longer period of time within which it may comply with the request”. The memorandum says “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”.

The Premier’s Department website says that some policies set out in memoranda and circulars need to be treated with caution as they may have been superseded. I’m not aware of any subsequent policy guidance on the subject but there is an interesting question whether an administrative policy of this kind of a former government applies to its successor or successors. In any event there is nothing in the FOI Act that allows additional time for processing large requests so much would depend on whether the applicant agreed and didn’t pursue review rights on the basis of a deemed refusal. There is probably a fair bit of wriggle room here.

The Tribunal commented on what constitutes an “agency’s resources”, concluding that this means the diversion of those “resources reasonably required to deal with an application with attendance to other priorities”. This did not mean that an agency could avoid its FOI obligations by not assigning sufficient staff. It rejected the Department’s submission that the only resources it had to demonstrate would be diverted were its one FOI officer and the four staff in the substantive area that held the documents. There seems to be a message here that each agency needs to have reasonable resources available to deal with the FOI applications received, including large ones. The Tribunal commented:

“Given its role in the affairs of the State.....the Premier’s Department can be expected to have substantial bodies of documents that involve important areas of government activity. An agency of this kind should not be given…..the degree of liberality in relying on (diversion of resources arguments) that might be appropriate to a very small statutory body with a small staff compliment, and consequently a very limited capacity to deal with FOI requests of scale”.

If you read the decision you will see some references to Timmins v National Media Liaison Service (1986) 9ALN196. The Tribunal said that this decision recently cited in the ACT as being correct in law in the Territory, was not relevant in interpreting the NSW Act. I agree and was surprised to find that this minor personal victory 20 years ago was still correct law, at least in the ACT.