VCAT ruling on when a document is more than information

www.win.org.uk

Australian Freedom of Information acts for the most part, are acts that provide a right of access to "documents", not information. The NSW Government Information (Public Access) Act to replace the FOI Act early in 2010 will be different, providing for access to information - more about that in a final comment.

The issue of what is a document, and the distinction between documents and information for FOI act purposes, cropped up in a recent Victorian decision. Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in Wooldridge and the Department of Human Services (General) [2009] VCAT 1900 considered whether part of a request under the Victorian Freedom of Information Act to interrogate the Department’s electronic management system using the term “Withington” and seeking a copy of the results generated by these searches, sorted by date for each report, was a valid application for a document as defined in Section 5 of the Act. The Department argued in these preliminary proceedings that the case should be dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act because:

• (a) no valid request for access was made by the applicant under s 17(2) of the Act; (b) as no valid request was made, there is no reviewable decision (deemed or otherwise) before the Tribunal; (c) accordingly, the Tribunal does not have jurisdiction; (d) the application for review is misconceived, lacking in substance or otherwise an abuse of process;

Section 17 of the Victorian FOI Act provides that a "person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document" and in subsection (2), that a "request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document."

Deputy President Coghlan said the

"nub of the Department’s contention is that the request for the electronic document management system to be interrogated and for a copy of the results generated by these searches to be provided was not a request for a document. It says that the request is for information to be obtained using the particular methods described by the applicant. This, they say, is not a request for access to specific documents, but rather is a request for information and not permitted by the Act." [20]

Document” is defined in s 5 to include, in addition to a document in writing –

(a) any book map plan graph or drawing; and

(b) any photograph; and

(c) any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; and

(d) any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(e) any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and

(f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and

(g) any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and

(h) any part of a copy, reproduction or duplicate referred to in paragraph (g)—

but does not include such library material as is maintained for reference purposes.

The Department argued that when read with s 17 of the Act, the definition of document reinforces the contention that a person must request access to a document and is not permitted to direct an agency what databases to search and in what manner, because that is a request for information and is not permitted.

However Section 19 of the Act is a provision concerning requests involving use of computers. Section 19(1) says (1) Where— (a) a request is duly made to an agency;

(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in documents of the agency; and

(c) the agency could produce a written document containing the information in discrete form by—

(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii) the making of a transcript from a sound recording held in the agency—

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession[25]

Deputy President Coghlan cited no cases in the decision so it may be the first time the matter has been considered in Victoria or elsewhere. She decided the application was valid:

28. While the request refers to the Department’s electronic system and the ability to search it by “author” or similarly titled source field and by “subject” or similarly titled summary field, and asks the Department to interrogate the system using the term “Withington”, the request seeks a copy of the results generated by the searches.

29. Section 19 contemplates the creation of a document where it appears from the request that the person wants information that is not available in discrete form in documents of the agency (s19(1)(b)). In this particular case, the request sought a copy of the results generated by certain searches. That request for a copy is a request for a document, and in fact such a document was actually generated and provided.

Noting that other cases may well be different, Deputy President Coughlan said [30 and 31]

"in this case, the Departmental officer well understood that the applicant wanted a document produced using the term “Withington”. That this was not available in discrete form in documents of the agency is clear. The officer dealt with the request as if it were a request for access to a written document so produced, containing the “Withington” information (s19(1)). It is a distraction to focus on the advice or direction the applicant gave to the Department about how the system might be interrogated. To indicate to the Department to interrogate using the term “Withington” was simply a way of making the request clearer. The request made is of the very type s 19 appears to provide for."

Update. The decision should be read in conjunction with Deputy President Coghlan's decision on the same day in McIntosh v Victoria Police (General) [2009] VCAT 1923 which covers similar ground and became available after the above comments were written.

The GIPA Act will render the definition of a "document" and these sort of questions unnecessary in NSW. The Act is "An Act to facilitate access to government information;" refers to information not documents almost throughout in providing for an application for information recorded in some way, and stipulating that information is to be published and released unless there is an overriding public interest against disclosure; requires an agency to undertake reasonable searches to find information using the most efficient means including those resources that facilitate the retrieval of information stored electronically; and authorises the provision of information in a new record, where this might be appropriate.

The similar provision in the NSW FOI Act to Victoria's Section 19 - the somewhat archaic "requests involving the use of a computer," enlivened only in NSW where an application relates to information not contained in a written document - can be of no continuing relevance in this new situation and does not appear in the GIPA Act. The only limitation in the Act on the search for information involving retrieval from electronic systems is where this would involve substantial and unreasonable diversion of resources. Depending on how the application for information is framed and how information is stored, asking for results of a search of systems using a nominated term would appear to be a straightforward request.

The rest of the country including other reformers (Queensland) and some would-be reformers (the Commonwealth but not Tasmania) are sticking to "documents," putting NSW commendably in the lead in legislating for access to information in the Information Age, and moving on from the world of 20-30 years ago when discrete written documents were just about the only information held by a government agency.