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International Law

: Open and Shut

Focus on information not documents a NSW step in the right direction

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One of the positive aspects of the NSW Government Information (Public Access ) Act (yet to commence) is that it moves into the modern world by providing a right of access to information. It's a significant move away from the Freedom of Information Act 1989 focus on "documents", evoking as that term does, images of piles of paper, manila folders, and large repositories to store them (not that all these aren't still important in the accountability context.)

The reality is that these days just about everything created or held by a government agency is rendered into a digital format with the bits and bytes stored electronically. Those within the system have sophisticated technology available to identify, retrieve and consolidate that information, as and when the need arises, for agency purposes. The new act will require an agency to use these resources to locate and provide requested information for applicants. And it limits charges to time necessarily spent in efficiently dealing with the request, so paper hunting or shuffling won't be necessary in many instances.

It also means the end of puzzling about what Section 23 of the Freedom of Information Act means. The section headed "Information stored in computer systems etc" requires a search of this kind only when an agency doesn't hold a written document containining information of the kind requested.

In a recent decision different interpretations of the provision by Administrative Decisions Tribunal members surfaced. The new act contains no equivalent, simply requiring a reasonable search for information using equipment available for retrieving information stored electronically, limited only by an out where a request would involve substantial and unreasonable diversion of resources. The agency can put all that it finds into a new record where this seems sensible. All a very good step forward in my opinion.

The relevant ADT decisions were first, this finding by Judicial Member Pearson in Kiernan v Commissioner of Police [2007] NSWADT 18

?The right of access created by section 16 of the FOI Act for access to "an agency's documents" is to be interpreted as widely as possible, consistently with the principle of openness articulated in the objects of the Act in section 5: Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133. However, this right is subject to the limitations specified in the Act. The definitions set out above limit access to a "document", which may be in written form, or which could be put into written form by usual methods of retrieval or collation. Such a "document" is "held" by an agency if the agency has an immediate right of access to it, or it is in the possession or under the control of an officer of the agency. Nothing in the FOI Act requires an agency to search its records in order to create a document so as to provide specific information requested by an applicant. ....? [26]

That case involved an attempt to require an agency to interrogate an officer's email account, and turned on its own facts. However Judicial Member Molony in Steadfast Group Pty Ltd v Workcover NSW [2010] NSWADT 23 had this to say, (and I agree) about the observation above, put to him in argument by Workcover :

28 I have great difficulty with this. I read s 23 as providing that documents which could be created by collation or retrieval from a computer system, (for example by querying a database or searching a document management system), are documents which an agency is taken to hold. I accept that the interrogation or search of a computer system to create such a document should be able to be undertaken using the equipment usually available to the agency. Thus, s 23 would not require an agency to have a special program written to interrogate its systems (see Re Halliday and Corporate Affairs (1991) 4 VAR 327) as opposed, for example, to an Access database query.

29 I am, however, unable to agree with Pearson JM that s 23 does not oblige an agency to search or interrogate its records so as to create a document by retrieving or collating stored information. To echo the words of Coughlan DP in Wooldridge v Department of Human Services (General) [2009] VCAT 1900 at [31], documents created from equipment usually available to an agency by collation or retrieval are ?the very type? of documents with which s 23 is concerned.

Judicial Member Molony also took the stick to Worcover with a couple of observations about its handling of the application, agreeing that WorkCover?s interpretation of the request, and its expectation that the applicant provide particulars of the information sought,

?demonstrates a fundamental misconception of the nature of Steadfast's legally enforceable right under the FOI Act and of its own duties as agent of the Nominal Insurer, an agency subject to the FOI Act.?[16].

And in these observations about Workcover's processes:

21 WorkCover as an agency of Government has specific obligations under the FOIA. Those obligations are intended to enhance to its accountability and make its operations transparent and accessible, subject to the disclosure exemptions set out in the Act, make. Those obligations are not achieved by reading down FOI requests.

36 I agree that the schedule filed by WorkCover ? even on its flawed interpretation of the scope of the request ? was unresponsive and failed to comply with the requirements I made clear on 7 October 2009. Further, given the view I have taken of the scope of the request, the schedule is unresponsive to the first paragraph of the request.

Full post as published by Open and Shut on February 11, 2010 (boomark / email).