Higgins and Department of Education

Application number:
1996 S0165
Decision date:
Friday, Jun 20, 1997

Higgins and Department of Education
 (1996 S0165, 20 June 1997) 

In this 'reverse FOI' case, the Information Commissioner rejected a claim by the applicant that the respondent ought to have refused to deal with an access application for documents concerning the applicant's selection and appointment to a position with the respondent, on the grounds that it involved a substantial and unreasonable diversion of the resources of the respondent (s.28(2)). 

The Information Commissioner indicated that the discretion conferred by s.28(2) was one for the relevant agency to exercise, not a third party.  The Information Commissioner saw no error in the respondent's assessment of the issues relevant to the application of s.28(2).  By the time the application for review had been lodged, the respondent had already located, and made decisions in respect of, the documents sought by the access applicant. 

Since the Information Commissioner must decide cases according to the material facts and circumstances which apply at the time the Information Commissioner comes to make the decision (see Woodyatt and Minister for Corrective Services (1995) 2 QAR 383 at p.398 and pp.405-406), it was no longer possible to say that dealing with the FOI access application would substantially and unreasonably divert the respondent's resources.  The Information Commissioner  also decided that the documents in issue were not exempt matter under s.44(1) of the FOI Act.