Application of Section 29(1) FOI Act

Relevant considerations

1. What is the work involved in dealing with the application or applications?

In deciding whether to refuse to deal with an application under section 29(1) of the FOI Act, the agency or Minister must first assess the work and resources involved in dealing with the application.

Under section 29(2) of the FOI Act, an agency or Minister must consider the resources necessary to:

  • identify, locate or collate the documents;4 
  • assess whether to allow access to the documents, including examining the documents or consulting with an entity about the documents;
  • make a copy or edited copy of the documents; or
  • notify the applicant of any interim or final decisions on the application.

This list is not exhaustive; other considerations may be taken into account as appropriate.

2. Would the work involved in dealing with the application substantially and unreasonably divert the resources of the agency in the performance of their functions or interfere with the performance of the Minister's functions?

The Information Commissioner found it necessary to consider relevant authorising legislation to determine the agency or Minister's functions.5

In determining the whether processing an application would divert or interfere with the agency or Minister's functions, the Information Commissioner has considered the following factors:

  • other responsibilities and demands placed on the agency or Minister6
  • the agency's size and staffing7
  • the resources available to deal with FOI applications and any other functions the agency is required to perform with those resources.8

a) Resources of the agency

'Resources of the agency' is not defined in the FOI Act. In Re SRB9  the AAT considered 'resources of an agency' means the resources reasonably required to deal with an access application consistent with attendance to other priorities. 'Resources of an agency' does not mean the resources available at the time of the access application nor resources the agency might be able to obtain or resources obtained by filling established positions. Further, 'resources of an agency' does not mean the resources of an entire large agency.

In Wright v State Electricity Commission of Victoria10Senior Member Megay accepted the approach outlined Re SRB with one key qualification; lack of resources is not an excuse for non-compliance. Reasonableness must be balanced against the agency's potential resources and each application considered in its particular factual context balanced against the objects of the legislation.

b) Substantial and unreasonable

In Re SRB11 the court considered the agency's functions must be substantially and unreasonably diverted as a result of dealing with the application.

The following interpretations of the word 'substantial' have been considered:12

  • the term is 'not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision';
  • its meaning is relative to the circumstances, so a decision maker must be familiar with the factual context to determine if an impact is 'substantial'.

As to the meaning of 'unreasonable':

  • the level of unreasonableness need not be overwhelming13
  • 'unreasonably' is suggestive of 'conduct which no sensible authority acting with due appreciation of its responsibilities would adopt'.14

3. Has the agency or Minister disregarded certain considerations?

Section 29(3) prohibits the consideration of certain matters. In deciding whether to refuse to deal with an application, agencies and Ministers must not have regard to:

  • any reasons the applicant gives for seeking access; or
  • the agency's or Minister's belief about the applicant's reasons for seeking access.

4 For example, considering the agency's record system: Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 26 June 2007).
5 In Allanson and Queensland Tourist and Travel Corporation (1997) 4 QAR 220 at paragraph 33.
6 A and Department of Human Services (1998) 13 VAR 235; Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 26 June 2007).
7 A and Department of Human Services (1998) 13 VAR 235; Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 26 June 2007).
8 Note, however that this is to be broadly applied to those resources available and necessary to deal with the application while attending to the agency's other functions. Failure to allocate sufficient resources to dealing with FOI obligations is not an excuse to refuse to deal with an application: The Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, Report No 32 (2001) [6.8.1]; Re SRB and SRC and Department Of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at paragraph 29; Wright v State Electricity Commission of Victoria [1998] VICCAT 941 at page 17.
9 Re SRB and SRC and Department Of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at paragraph 33.
10 Wright v State Electricity Commission of Victoria [1998] VICCAT 941 at page 17.
11 Re SRB and SRC and Department Of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at page 179, where the tribunal was satisfied that the diversion was substantial, then found it necessary to look at whether it was also unreasonable.
12 Wright v State Electricity Commission of Victoria [1998] VICCAT 941 referring to Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Ors (1980) 27 ALR 367 at paragraph 382.
13 Re SRB and SRC and Department Of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at paragraph 34.
14 Wright v State Electricity Commission of Victoria [1998] VICCAT 941 at pages 16 and 18 referring to Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 at page 695.

Last updated: April 17, 2012