Application of Section 29A FOI Act

Relevant considerations

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

Before refusing to deal with an application under section 29(1) of the FOI Act, the agency or Minister must provide the applicant with a written notice:¹

• stating an intention to refuse to deal with the application;
• advising the applicant may consult with a stated officer of the agency, within the consultation period, with a view to making the application in a form that would remove the ground of refusal;
• advising the consultation period ends 21 days after the day the applicant has been given the written notice; and
• stating the effect of section 29A(2)-(7) of the FOI Act.

2. Has the agency or Minister, as far as is reasonably practicable, provided the applicant with information to assist in refining their access application to remove the ground of refusal?

Before refusing to deal with an application under section 29(1) of the FOI Act, the agency or Minister must provide the applicant with information to assist the applicant to alter their access application to remove the ground for refusal to deal.²

3. Has the agency or Minister given the applicant a reasonable opportunity to consult with an officer of the agency?

Before refusing to deal with an application under section 29(1) of the FOI Act, the agency or Minister must provide the applicant with a reasonable opportunity to consult with an officer of the agency or Minister, with a view to altering the access application to remove the ground of refusal.³ 

a) Has the applicant not consulted with an officer of the agency?

If an applicant does not consult with an officer of the agency following the written notice, the applicant is taken to have withdrawn their access application.⁴ Relevantly, an applicant is taken to not have consulted if, at the end of the consultation period, the applicant has not given the officer a written notice either confirming or altering their access application.⁵

b) Has the applicant consulted with an officer of the agency?

Following the consultation the applicant may give the officer written notice either confirming or altering the access application.⁶ An alteration may include, but is not limited to:

• an alteration of the documents to which the application relates
• an alteration of the application to state that the 'appropriate period' for section 27 in relation to the application is to be a period that has been agreed with the officer.

Where the applicant alters the access application after consultation, section 29 of the FOI Act applies in relation to the altered application and the other provisions in section 29A do not apply.

During the consultation period, the applicant and officer may agree what is to be the 'appropriate period' for the agency or Minister to process the application for purpose of section 27 of the FOI Act.⁷ If the applicant gives the officer a written notice altering the application to state that the 'appropriate period' for section 27 is a period agreed, then the agreed period is taken to be the 'appropriate period'.⁸

The 'appropriate period' for dealing with an application excludes the time from when the applicant is given notice of the agency or Minister's intention to refuse to deal with the application, to when the applicant gives notice either confirming or refining their application.⁹ 

¹ Section 29A(1)(a) of the FOI Act.
² Section 29A(1)(c) of the FOI Act.
³ Section 29A(1)(b) of the FOI Act.
⁴ Section 29A(5) of the FOI Act.
⁵ Section 29A(6) of the FOI Act.
⁶ Section 29A(3) of the FOI Act.
⁷ Section 29A(2) of the FOI Act.
⁸ Section 29A(7) of the FOI Act.
⁹ Section 29A(8) of the FOI Act.