Birt and Department of Emergency Services

Birt and Department of Emergency Services
(210368, 20 March 2008)

Section 29B – Refusal to deal with application – previous application for same documents

The applicant wrote to the Office of the Minister for Emergency Services referring to a previous decision of this Office that was issued on 30 June 2006 in external review 159/04. The applicant alleged that a particular paragraph of that decision evidenced the existence of certain communications to which he then sought access under the Freedom of Information Act 1992 (FOI Act).  

Acting Information Commissioner Rangihaeata considered whether the Department of Emergency Services (Department) had correctly exercised its discretion under section 29B(3) of the FOI Act to refuse to deal with the later application on the ground specified in section 29B(4)(a)(ii) of the FOI Act.   

Acting Information Commissioner Rangihaeata decided that the Department was entitled to rely on section 29B of the FOI Act in these circumstances, if the following criteria were met:  

a)         the documents sought under the later application to the Department were the same documents sought under the earlier application to the Department

b)         the later application did not disclose any reasonable basis for again seeking access to the documents

c)          the decisions of the Department in relation to the earlier application had been the subject of a completed external review.  

In relation to criteria a), the Acting Information Commissioner considered the applicant’s submissions and the wording of both the earlier application and later application and decided that:  

·       the scope of the earlier application was sufficiently broad to cover the documents requested in the later application

·       the documents the applicant requested in the later application were the same documents he requested in the earlier application.   

In relation to criteria b), the Acting Information Commissioner found that the applicant’s submissions did not disclose any reasonable basis for the applicant to again seek access to the documents. The Acting Information Commissioner also noted that the previous decision of this Office was that there were no further documents of the Department responsive to the earlier application.   

In relation to criteria c), Acting Information Commissioner Rangihaeata was satisfied that the earlier decisions of the Department had been the subject of a completed external review by this Office.  

On that basis, Acting Information Commissioner Rangihaeata decided that the Department was entitled to refuse to deal with the applicant’s FOI application under section 29B of the FOI Act.