Last week Freedom of Information Commissioner Dr Popple did just that in Farrell and Department of Immigration when he upheld the Department's claim on the key issue that it can treat 121 FOI requests for documents as a single request, or as two or more requests, under s 24(2) of the FOI Act.
Explained in this one paragraph:
The amazing bit is that different reports qualify as documents the subject matter of which is substantially the same because the incidents they refer to are listed in the same speadsheet and occurred somewhere within the network of detention centres over the same 18 month period. And this is consistent with the scheme of the FOI act??
- Each of the 121 FOI requests referred to in  and  above seeks further information about an incident referred to in the spreadsheet that the Department published on its disclosure log in August 2012. The requests relate to different incidents, but I am satisfied (for the purposes of s 24(2)(b)) that each request relates to documents the subject matter of which is substantially the same: that is, documents referred to in the spreadsheet and relating to incidents within the detention network between 3 October 2009 and 26 May 2011.This approach is consistent with the scheme of the FOI Act, which strikes a balance between facilitating a person’s right to access documents and allowing an agency to provide that access as efficiently as possible.
The broader ramifications of Dr Popple's interpretation of the act are interesting or concerning depending on your perspective.
Could any agency emboldened,Treasury for instance, argue requests for different documents mentioned or referred to in the 2014-15 Budget papers, or for any documents prepared on any subject in the lead up to the budget, referenced in that context and timeline, are requests for documents the subject matter of which is substantially the same?
In his decision, which relates to nine separate applications for IC review from ten IC review applicants, each expressed in identical terms, Dr Popple rejected [22-27] another aspect of Immigration's decision ruling the Department cannot treat as having been withdrawn those of the 121 FOI requests whose applicants advised the Department, during the request consultation process, that they did not wish to withdraw or revise their requests. The Department has been ordered to continue to process those requests.
So the issue drags on and on. Immigration could do what it will in the light of the decision, or the Department, Farrell or any of the other OAIC review applicants left standing could seek review by the AAT - the first mentioned is probably better placed to fork out the $861 required.
Immigration's approach to dealing with these applications may have had the desired effect of holding the line and seeing off most of those involved who were interested in the issue at the time but not in jumping all the hurdles faced on the way through.
As not all aspects of that tortured reasoning of a year ago surfaced in Dr Popple's decision here is a recap of the path Immigration followed. It's turning out to be a tribute to 'smart lawyering' but no great advertisement for transparency and accountability.
- requests made within a two week period in June and July for different reports by different people about different incidents often in different detention centres could be dealt with as a single request as the documents requested are 'documents the subject matter of which is substantially the same';
- the time required to process what was regarded as a single application was three hours, the estimate for a single request of this kind, times the number of requests;
- the resulting total time to process what was taken to be a single request would involve substantial and unreasonable diversion of resources away from other tasks, a practical refusal reason under s 24AA. (Before s 24AA can be activated, the applicant must be consulted and given an opportunity to revise the request. If the applicant does not respond, the agency can deem the request to be withdrawn.)
- when some of those consulted didn't respond the request was deemed to have been withdrawn, even of those applicants who responded they did not wish to revise their request. As a deemed withdrawal is not an access refusal decision, none of the requesters had a right to review by the Australian Information Commissioner.