Application of Section 29(4) FOI Act

Relevant considerations

1. What are the terms of the access application?

The terms of the access application is the basis upon which agencies and Ministers may refuse to deal with an application.

If the terms of the access application satisfy the requirements in section 29(4)(a), the agency or Minister may refuse to deal with the application. Relevantly the access application must specify that it relates to:

• all documents or all documents of a stated class; and
• contain information of a stated kind or relate to a stated subject matter.

If the terms of an access application relate to specific documents or specific documents for a specific period, an agency or Minister may not refuse to deal with the application under section 29(4) of the FOI Act.³

2. Does the agency or Minister consider all relevant documents are exempt?

The agency or Minister must identify the relevant exemption and demonstrate why that exemption is apparently satisfied for all relevant documents. This involves setting out the exemption and applying the relevant test, as would be done if the application was actually processed.

3. Has the agency or Minister complied with the notice requirements?

Section 29(5) of the FOI Act requires the agency or Minister to identify, in its decision, the relevant provision under which the documents are considered exempt.

³ (Unpublished OIC Preliminary View).