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Wednesday, June 26, 2013

Immigration draws a long bow in lumping 85 FOI requests into one

The Global Mail reports that  the Department of Immigration and Citizenship is moving to reject more than 100 Freedom of information requests lodged through the Open Australia Foundation righttoknow website, as part of the Adopt-An-Incident campaign
concerning arrivals held in detention.

DIAC has written to each FOI applicant (see standard letter) stating it is treating 85 separate requests as a single request as they "relate to documents the subject matter of which is substantially the same." As a result the request, which DIAC estimates individually would take three hours, will take approximately 225 hours. That DIAC contends, would substantially and unreasonably divert resources from other functions and provide grounds to refuse access under s 24AA.

Each applicant has been issued a notice to this effect under s 24AB and invited to revise the request. DIAC will then issue a determination. At that stage rights of review arise.

There are a few problems with DIAC's claims.

DIAC's reliance on Section 24(2) seems wrong for two reasons.

The section states:

(2)  For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a)  the requests relate to the same document or documents; or
(b)  the requests relate to documents, the subject matter of which is substantially the same.
First, the requests have been made by different people. Section 24 is silent on whether the relevant "2 or more requests" must come from the same person. Arguably that's the case. This is supported by the Office of Australian Information Commissioner Guidelines which state that the section is relevant "where the same applicant makes two or more requests" in which case they may be treated as a single request - if they relate to documents the subject matter of which is substantially the same..

Agencies must have regard to these guidelines in performing a function or exercising a power under the FOI Act (s 93A(2). 

"Must have regard to" probably means nothing stronger than "can't be ignored" but as the DIAC notice makes no reference to the guidelines, they seem to have done just that.

"Must have regard to" doesn't mean have to followed and can't be contested. It would still be open to DIAC to argue their preferred interpretation in any proceedings before the OAIC or elsewhere.

DIAC's next problem in seeking to rely on s 24(2) is that the 85 requests do not relate to documents the subject matter of which is substantially the same. Each request (presumably) relates to a different incident report involving different people at a different time, often in a different place. The argument that all 85 requests relate to documents concerning subject matter substantially the same seems weak.

There is a separate point concerning substantial and unreasonable diversion of resources. DIAC only get into that territory if they treat the requests as a single request-overcoming the difficulties above.

If things get to that stage, DIAC is wrong in claiming that 40 hours is some sort of line in the sand. It isn't.

Two hundred and fifty five hours, if it holds up to scrutiny would be a different kettle of fish. That might be a substantial diversion of resources, but that alone isn't enough. The diversion must also be unreasonable. The nature of the request(s) and public interest considerations then come into play- as DIAC acknowledges in the notice. But there is an argument at least that the public interest in disclosure outweighs the 'harm' from diversion of resources contrary to DIAC's assessment.

(Disclosure: I've commented along the lines above in the last day or so when asked by some of those involved.)

DIAC are no doubt under a lot of pressure on many fronts and resources are certain to be stretched. But that doesn't justify stretching provisions in the act in the way that seems to be the case here. Of course DIAC has some less than stellar FOI form, brought to light by the OAIC and Cornall reports last year. As to the promised new approach.... 

(Addendum: Gaming the system?

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