Relevant decisions from other jurisdictions

Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171

The Public Interest Advocacy Centre (PIAC) sought access to information, concerning the manufacture of the treatments derived from human pituitary hormones, on behalf of 57 clients who were treated under the National Pituitary Hormone Program. It was later discovered that receipt of the hormone treatment put the individuals at risk of developing Creutzfeldt-Jakob disease, a rare and fatal nervous system or brain disease. Identical access applications were made for each individual and the Department of Health, Housing, Local Government and Community Services (Department) disclosed the personal files of 30 of the individuals concerned and undertook to make the remaining personal files available after relevant consultation with third parties was complete. The Department identified a further 600 policy files relevant to the request and refused to deal with these documents under the equivalent Commonwealth provision. Relevantly, section 24(1)(a) of the Freedom of Information Act 1982 (Cth) states that 'an agency may refuse to grant access to documents, if the agency is satisfied that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations'.

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

The Department submitted that the estimated cost of processing the request for the 600 policy documents would cost between $160,000 and $320,000. The 600 policy documents contained approximately 22,500 folios and consultation with third parties, in accordance with the Act would take approximately 2 years. Further, the documents were of poor quality so the copying process would be time consuming.

Would the work involved in dealing with the applications substantially and unreasonably divert the resources of the agency in the performance of their functions?

Resources of the agency

The Administrative Appeals Tribunal (AAT) considered that the term 'resources of an agency' means the 'resources reasonably required to deal with an access application consistent with attendance to other priorities'. [29] '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. [29] Further, 'resources of an agency' does not mean the resources of an entire large agency. [29]

The AAT was satisfied the work involved in processing the 600 policy documents would substantially divert the resources of the agency from their use in the performance of the agency's functions. The question was whether processing the application would unreasonably divert the resources of the agency.

It is not necessary to show that the unreasonableness is overwhelming. Rather, the considerations for and against the situation must be balanced to form a judgement on reasonableness based on the objective evidence. The AAT considered that the hormone treatment program had put approximately 1,200 people at risk of a fatal disease and disclosure of the relevant documents was in line with public policy. However, the Department released the personal files of the applicants and had done a great deal in making available knowledge, guidance and treatment for participants in the programs; a counselling service and a hot line enquiry system was established and an independent inquiry was undertaken. Further, the policy files were made available to the independent inquiry (where third party consultation was not required) and a large number of the documents had been made available through the discovery process in various Supreme Court proceedings.

Accordingly, the AAT considered that the work involved in processing the 600 policy files would substantially and unreasonably divert the resources of the agency from their use in the performance of the agency's functions. Nonetheless, the members considered that if the Department had 'sat on its hands' the result would have been different.

The Department was entitled to refuse to deal with part of the access applications under section 24(1)(a) of the FOI Act (Cth).

Wright v State Electricity Commission of Victoria [1998] VICCAT 941

The applicant sought access to documents of the State Electricity Commission of Victoria (SECV). SECV had been corporatised, then privatised and its various functions divided and allocated to different independent entities. During this process, document management received a low priority. Millions of documents were located at three sites with no universal database or indexing system.

SECV refused to deal with the application under the equivalent provision in Victorian legislation. Relevantly, section 25A of the Freedom of Information Act 1982 (Vic) states that 'the agency dealing with a request may refuse to grant access to documents in accordance with the request…if the agency is satisfied that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations'.

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

Senior Member Megay considered that in determining the work involved in dealing with an access application the following factors must be considered:

• the process of identifying, locating and collating the documents;
• the number of documents involved and their volume; and
• the work potentially involved in scrutinising all the material page by page and possibly line by line, to decide whether parts of the material qualify for exemption under the FOI Act.

Senior Member Megay was satisfied that the task of identifying and locating documents alone was so large that the number of hours could not be predicted and was sufficiently onerous to avoid considering the task of assessing the documents [15]. In this case the work involved was so large that the cost of completing it would be incapable of accurate estimate. [18]

Would the work involved in dealing with the applications substantially and unreasonably divert the resources of the agency in the performance of their functions?

Substantially and unreasonably

Senior Member Megay considered the meaning of the word 'substantially' with reference to Tillmans¹⁶  and O'Brien Glass¹⁷. In Tillmans,¹⁸ the Full Federal Court considered 'substantial' as it appeared in section 45D(1)(a) of the Trade Practices Act 1974 (Cth) and stated:

• the word is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision'
• the word's meaning is relative to the circumstances, so a judge must be familiar with the factual context to determine if an impact is substantial; and
• the word means 'not insubstantial or nominal'.

In O'Brien,¹⁹ Fox J considered that, in relation to the word 'substantial', that 'the legislature [had] chosen a word of intractably indefinite import, and much must be left to individual assessment'. [15]

Resources of the agency

Senior Member Megay referred to Re SRB²⁰ and accepted the view that 'resources of an agency' refers to the resources the agency has at the time of the application, with one key distinction: [17]

I disagree only insofar as their reasoning, viewed in isolation, might provide agencies with a readymade excuse for non-compliance with large requests based solely on the absence of sufficient staff members, rather than on a balanced consideration of the reasonableness of the application matched against the agency's potential resources. Each application must be considered in its particular factual context balanced against the objects of the legislation. [emphasis added]

SECV had a small number of staff but considerable monetary resources. Those resources were used when required to complete particular tasks, as reflected by the annual report for 1997 which showed $1.7m spent on consultancies. Despite bountiful resources, Senior Member Megay considered the agency should apply proper and prudent business principles at all times.

Senior Member Megay was satisfied that the volume of the relevant documents in issue and the failure of the respondent to refine his request meant that processing the application would substantially and unreasonably divert SECV's resources from the performance of its other operations. Accordingly, SECV was entitled to refuse to deal with the application under section 25A of the FOI Act (Vic).

¹⁶ Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Ors (1979-1980) 27 ALR 367
¹⁷ O'Brien Glass Industries Ltd v Cool and Sons Pty Ltd (1983) 48 ALR 625.
¹⁸ Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Ors (1979-1980) 27 ALR 367 at paragraph 382.
¹⁹ O'Brien Glass Industries Ltd v Cool and Sons Pty Ltd (1983) 48 ALR 625 at page 631.
²⁰ Re SRB and SRC and Department Of Health, Housing, Local Government and Community Services (1994) 33 ALD 171.