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Tuesday, January 22, 2008

FOI applicants: agencies should 'know' what they mean!

A couple of important points for agencies from two NSW Administrative Decisions Tribunal Freedom of Information cases - interpret the application in a commonsense rather than literal manner, and make all reasonable inquiries in trying to locate relevant documents, including your solicitors when appropriate.

So when an applicant sought access to "all annual reports, including financial statements" of a subsidiary body of a consortium in which the University of NSW was involved (McGuirk v University of NSW [2007] NSWADT 270), the Tribunal found that the University had been wrong to limit the search for documents to "annual reports" (which it didn't hold in any event). It should have been clear from the context of the application and subsequent correspondence that the applicant was seeking reports about the overall performance of the subsidiary in terms of the income, expenses, assets and liabilities. No search had been undertaken for documents of this kind which on the evidence seemed likely to be held by officers of the University. While the literal interpretation of a list of documents requested in a schedule to a subpoena is warranted, "an FOI request is to be considered in the overall context (within which) it has been made and not in isolation".

Similarly (Waite v Hornsby Shire Council (2007) NSWADT 265), when an applicant sought access to instructions provided by a local council to a barrister "by email", the council was wrong to have limited the search for relevant documents to emails (it held none). The Tribunal said that the applicant intended to mean that he sought access to copies of instructions including those sent by email. A letter of instructions had been sent to the barrister not by the council but by the firm of solicitors acting on its behalf. In the NSW Act, a document is held by an agency even where it does not physically hold the document but has an immediate right of access to it. In this case the council should have responded to the application by considering the letter held by its solicitors as a relevant document responsive to the application.

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