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Friday, November 04, 2011

"Woefully inadequate" search scores a cost order

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The adequacy of the search by an agency for documents or information relevant to a freedom of information application is often a contentious issue.

Older FOI legislation such as the Commonwealth and Victorian acts are silent on what steps an agency must take to attempt to locate relevant material but a reasonable search (see OAIC Guidelines) is the  standard. In the Commonwealth arena, whether "all reasonable steps" were taken is an issue on review  where a decision to refuse access has been taken under s 24A (Chu v Telstra).

Justice Finn in Chu noted that while " an applicant might be able to help an agency in its attempt to locate a document, that person is hardly to be disadvantaged if he or she cannot." An applicant will often find it difficult to dispute agency claims that all reasonable steps were taken.

In a recent Victorian case the applicant pointed out deficiencies in the search process, to no avail, until the matter came before Deputy President Judge Hampel in the Victorian Civil and Administrative Tribunal. In Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876, because of what had happened, she took the unusual step of awarding costs to the applicant despite ruling for the respondent agency on the substantive issue, that the documents in dispute were exempt.
82. I have already expressed the view that the respondent’s searches were woefully inadequate. The applicant was in a position to demonstrate to the respondent, and did so, in precise detail, that its searches were inadequate. It did all that it could have, up until the time of the hearing to bring to the respondent’s attention to the deficiency of its searches and to request it to conduct further searches and to produce the documents sought in the request. That included making the second FOI request to the Minister. I am satisfied that request was only made because of the inadequacy of the original search, and the inadequacy of the Department’s response when taxed with that by the applicant.
83. The respondent’s conduct in my view is unjustifiable. When I indicated that I would order the respondent to conduct further searches, the respondent, whilst maintaining its formal reliance on Burton, undertook to conduct those searches. Within a week, it had identified, and provided a further 1350 pages, which clearly fell within the terms of the search. Only six documents were the subject of exemption claims from this further search. Clearly, the bulk of the material should have been identified in a timely fashion after receipt of the request, and a more cooperative or responsive attitude to the applicant should have been displayed from the time it first raised its concerns about the inadequacy of the searches.


  1. Anonymous9:19 am

    Records Management and FOI..In Victoria....

    There is another complexity in the 'discovery' process of records..perhaps the missing link of the accountability chain for information/ records.

    Freedom of Information (FOI) and legal discovery is severely undermined when records management in Government is poor. If records are not created, managed and disposed of lawfully, especially with the current proliferation of electronic documents and the extensiveness of government outsourcing (where records are owned by the outsourced service provider)- discovery becomes almost impossible.

    You only need to look at a host of audit reports to identity that these problems are systemic. The following are mere examples
    2011 Investigation into record keeping failures by WorkSafe agents - Victorian Ombudsman
    2007 Investigation into a disclosure about Work safe's and Victoria Police's handling of a bullying and harassment complaint - Victorian Ombudsman etc

    Despite a 2008 Victorian Auditor General’s Office, Records Management in the Public Sector, the Public Records Act 1973 (Victoria) and its corresponding regulatory model remains chiefly unchanged, ineffective and fails to address current high risks with government record keeping.

    The Public Records Act 1973 assigns primary responsibility for records management and the development of records management programme to the head of a public office.

    ‘Unfortunately’ or perhaps even ‘fortunately’ for some, the Public Records Act 1973 has the following limitations:
    Despite the existence of new records management standards there is no enforcement model.... The OBV and VAGO identify these issues as a matter of course….IF they find them in their investigations…….

    Agencies are not assessed on the status of compliance on the management system for records.

    The community has not defined process for complaint. The penalties for destruction of public records under the Public Records Act 1973 in Victroia are a whopping $ 524 (5 penalty points) as comparison to Northern Territory which is 200 penalty units ($ 22 000) or 1 year imprisonment.

    The investment in this area tends to be consequently deprioritised and the ramifications for this lack of investment in some cases are significant :
    Forgotten Australians- Chapter (9)

    The problems with legal discovery and poor record keeping

    This one in particular has potential to become a human rights issue:

    Lets face it discoverability of records under FOI will be compromised if the legislation for records management is not enforceable..records will not created, illegally destroyed, rendered illegible, undecipherable or incapable of identification.

    So perhaps the opportunity then is to work to tightly aligning both these Acts to ensure that the accountability chain for information is protected from creation – management - disposal and discovery….

    In a modern age when these Records Management standards exist, and agencies are compelled to put into practices and systems that make them discoverable...there is no real guess work in what constitutes a 'reasonable' search..

    How do you assure that FOI Applications have been fully met if agencies fail to comply with the very legislation that compels and ensures that these records are created, managed and made accessible – pretty difficult isn’t it?

  2. This isn't just a Victorian problem. Records management has been and continues to be a poor relation in many areas of public administration.I seem to recall that there is no legal obligation in commonwealth legislation to create records-only to properly maintain those that are created. Of course there are guidelines about good practice but compliance is rarely tested, usually when an auditor-general or ombudsman takes an occasional look. Thanks for your comments.