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1. Brief Overview and Checklist

2. The Essentials - Requests within the Scope of the Act

3. Acknowledging Receipt of Applications

4. Transfer of Requests

5. Extension of Time Limits

6. Administrative Reasons for Refusal

7. Deferral of Access

8. Charges

9. Summary of Time Limits

10. Access to Parts of Records

11. Forms of Access

12. Making the Decision & Preparing the Statement

 These notes are intended as guidance only. Individual departments and offices may vary them depending on their organisational arrangements. However, the procedures adopted should be such as to enable your organisation to comply fully with the requirements of the FOI Act. The extent to which these procedures will be carried out at central or divisional level will depend on the particular delegation and organisational arrangements in place in your department or office.

Date stamp the request on the date of receipt. The clock begins from this date of receipt.

Open a registered file for each request

Input the request details on the IT request tracking system

Note the deadline for reply on the front of the file. (This deadline may alter subsequently if consultation is required or if an extension of time limit is applied)

Check that the Request comes within the Scope of the FOI Act

This means that it:

Was received in writing or other approved form

Refers to the Act

Contains sufficient particulars to enable the records sought to be identified

Identify appropriate decision maker

Determine the appropriate decision maker to handle the request.

If the decision is to be made at local/divisional level, notify the decision maker of the request and send a copy of the actual application. (The location of the decision maker will determine whether the actual registered file cover should also be sent)

Acknowledge

Acknowledge receipt of the application

Search for and locate the records relevant to the request

Identify all steps taken to locate all records - seek signed confirmation from relevant divisions, if appropriate (See search checklist at Section 2)

Extract relevant electronic documents and print if the form of access is likely to be photocopies of the document

If some or all of the records are held by another public body - then follow the "Transfer of Requests" arrangements at page 10

If the request relates to a large number of records, or a large number of similar requests are on hand, and it is not possible to deal with it within the usual 4 week timeframe then follow the instruction on "Extension of Time" at page 11

Making the Decision

Number each page of the relevant file(s)

Copy all records that come within the scope of the request

Check each page for exempt material

Prepare a schedule of records (either manual or electronic)

Consider whether the records coming within the scope of the request contain third party information

Undertake formal consultations if required under section 29

Undertake informal consultations with colleagues or other relevant persons as appropriate

Consider any relevant public interest factors

Deferral

Identify if deferral of access is necessary and appropriate

Notify the applicant in writing (or other approved form) of:

the decision

the day on which it was made

the name and designation of the person dealing with the request (unless particular safety issues arise)

the reasons for the deferral

the period of the deferral

particulars of rights of review and appeal, the procedure governing the exercise of those rights and the time limits governing such exercise

Advise the applicant in writing (or other approved form) of:

the decision

the day on which it was made

the name and designation of the person dealing with the request (unless particular safety issues arise)

the form and manner of access

any fee payable

If no fee is payable, or if the amount of a deposit already received exceeds the amount of the fee, the record should be made available forthwith

Notifying of the Decision to Refuse

Advise the applicant in writing or other approved form of:

the decision

the day on which it was made

the name and designation of the person dealing with the request (unless particular safety issues arise)

the reasons for the refusal

any provision of the Act pursuant to which the request is refused

findings on any material issues relevant to the decision

particulars of any matter taken into consideration

particulars of rights of review and appeal, the procedure governing the exercise of those rights and the time limits governing such exercise

Particular requirements for personal affairs

Obtain suitable identification where applicant seeks access to records which concern his or her personal affairs

Obtain suitable authorisation where applicant seeks access to records on behalf of another person or with the authorisation of another person.

This chapter follows the steps involved in processing an FOI request.

Section 6 of the Act establishes a statutory right of access to information held by public bodies.

The Act places no restrictions on who may make an request under the Act. Section 6 of the Act confers a general right on ‘every person’ to be offered access to any record held by a public body, subject to the provisions of the Act.

The procedure for making a request is set out at section 7(1) of the Act. Three criteria must be met. The request:

In general departments and public offices will receive FOI requests in writing. However, they may also receive oral queries from visitors to the Office or by way of telephone queries. In order to assist such persons, each department or office should have available a standard FOI application form which may be completed by the caller or sent out by post. A sample form is attached at Section 2 of this manual.

The Act requires that the requester refer to the FOI Act in his or her application. Where such reference is not made, the department or office may deal with the request as an ordinary request for information.

However, where it is not, or may not be, possible to give the information in response to an administrative request and such access may be possible under FOI, the public body is obliged to inform the person of his or her rights under the FOI Act. In addition, the Act requires that the public body offer to assist the person in the preparation of such a request (section 7(7) refers).

When the subsequent FOI request is received, it then becomes an FOI request from the date of its receipt.

The request must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. The Act obliges the public body to assist the requester in identifying the records required.

A request comes within the scope of the Act (section 7) if it is possible to identify the records concerned, notwithstanding that the request is large in its scope or covers a large number of records. A voluminous request is therefore valid. In these circumstances the public body may wish to consult with the requester to narrow the scope of the request and help to identify specifically those records of interest to them. However, the relevant date for the request is the date on which the initial request was received.

if it is not possible, by the taking of reasonable steps, to identify the records concerned from the information supplied. In these circumstances, the public body is obliged to consult with the requester to assist them in identifying the records sought. When the terms of a revised request are agreed between the requester and the public body, the date on which such agreement is reached becomes the relevant date for receipt of the request.

A decision as to whether a request can or cannot be processed should be made immediately on receipt of each request. If the public body considers that the request cannot be processed because the information sought cannot be identified, they should

take immediate steps to contact the requester, preferably by phone, fax or e-mail

advise them that the request cannot be processed because if fails to identify the records sought with sufficient particularity to enable them to be identified

inform the requester as to the records held by the public body relating to the matter of interest to the requester

discuss with the requester the terms and scope of their FOI request

agree with the requester the terms of their revised FOI request

advise the requester that the relevant date for receipt of the request is the date on which such agreement is reached

If following contact with the requester and the offering of assistance to identify the records sought, it is still not possible to focus the request, the request may be refused in accordance with section 10(1)(b). In these circumstances all of the steps taken and details of the assistance offered should be noted carefully as this may subsequently become the subject of an internal review application or review by the Commissioner.

The requester may also indicate if he or she wishes to be given access in a particular form or manner (section 7(1)(c) refers). Requesters will not commonly know that they have options regarding mode of access. Public bodies should be proactive in informing requesters of their access options.

Persons with a disability: Section 6(2) places particular requirements on public bodies to assist persons with a disability in exercising their rights under the Act. The Minister for Finance will issue guidance in relation to this requirement. However, the spirit of the Act and the wording of section 6(2) suggests a public body should offer every possible assistance to persons in submitting requests that comply with the Act.

3. Acknowledge Receipt of Application

Each FOI request must be acknowledged within 2 weeks of receipt (section 7(2) refers).

The letter of acknowledgement should contain the following information:

confirmation of receipt of the FOI request and the date of such receipt

the deadline by which the public body is required to make a decision on the matter

information on the applicant’s rights to seek review if the public body fails to deal with the application within the specified time limit i.e. that the request is deemed to have been refused

the procedures governing the exercise of those appeal rights

the time limits governing the exercise of those rights

A sample acknowledgement letter is attached at Section 2 of this Manual.

4. Transfer of Requests

The Act sets out the following procedure where all or some of the records sought are held by another public body:

Where no records are held (section 7(3) refers):

If your Department holds none of the records sought, you should take all reasonable steps to identify by which other bodies the records are held. Where the records are held by more than one body, the request should be transferred to the body:

whose functions are most closely related to the subject matter of the record or records or

is otherwise most appropriate

The request should be transferred within two weeks of the receipt of the request.

The requester should be informed in writing of the transfer to the request to the other body.

The request is then deemed to have been received by the other body on the date of its receipt by that body and shall be processed accordingly as an FOI request.

The Minister for Finance will draw up guidelines on the transfer of records between public bodies following commencement of the Act (section 7(5) refers).

What if the records are held by a body outside of the scope of the FOI Act?

If the records requested are held solely by a body outside of the scope of the FOI Act, no legal obligation arises to transfer the request to that other body. In that instance, good administrative practice would suggest that you advise the requester that the records may be held by x body but that the access rights of the FOI Act will not apply. It would also be good practice to advise that other body of the substance of the request and ask them to assist the requester insofar as is possible.

If your Department or Office holds some of the records, you should deal with the request as follows:

Those Records held by you: That part of the request in respect of which records are held by your department should be treated as a normal FOI request and processed accordingly

Those Records not held by you: You should take all reasonable steps to identify by which other bodies the records are held. The requester should then be informed of the names of the other public bodies that hold the records. This information may be included in the acknowledgement to the requester indicating clearly those aspects of the request that being treated as an FOI request by you.

5. Extension of Time

The Act allows the standard 4 week time limit for dealing with requests to be extended in certain limited circumstances:

where the request relates to such a number of records that compliance with the standard 4 week time period is not reasonably possible

where the number of other FOI requests relating to the particular record(s) sought or to information corresponding to that to which the request relates, are such that compliance with the standard 4 week time period is not reasonably possible.

The requester must be notified of the period of the fact of the extension and the period of the extension before the expiry of the initial 4 week period. The period of extension must not exceed 4 weeks.

Where period of extension is proposed, the requester has the right to appeal the matter directly to the Information Commissioner, without going through internal appeal. The notification of the extension should clearly specify this right together with details as to how the right may be exercised.

A standard form is attached at Section 2 of this Manual.

6. Administrative Reasons for Refusing Requests

Under the Act, access to a record can be refused because it is an exempt record or on certain specific administrative grounds. These administrative reasons for refusal are set out in section 10 of the Act:

1. The record does not exist or cannot be found

A request may be refused at the outset to the extent to which the records sought either do not exist or cannot be found upon the taking of "reasonable steps" (s 10(1)(a)).

A key issue here will be the reasonableness of the searches undertaken for the records:

Bodies will need to review their record management systems to ensure that their index search mechanisms are sufficient to fully comply with this requirement. Public bodies must also give clear instructions to staff on the extent and nature of searches to be undertaken. Staff should be able to rely on these instructions as their primary guidance in tracking records. Such steps will vary depending on the record management system in place in an individual office, but might include:

search of the file registry index

search of electronic information system

cross-checking of FOI tracking system to check for previous FOI requests on the same subject

physical searches of cabinets, file holdings, etc. in the relevant area/division

enquiring of staff in the area/division to which the record relates

written confirmation from appropriate staff that extensive searches of all relevant records have been undertaken, including non-registered or informal records held in folders, desk-tops, work organisers, diaries, etc.

These searches will form the basis for documenting the grounds on which a section 10(1)(a) refusal arises. Requesters may be unfamiliar with the particular record keeping practices of the public body. Insofar as is possible, all steps taken to locate the relevant records should be explained to the requester when replying. It would also be good administrative practice to advise the requester of any other bodies who might hold records relating to the particular subject.

2. The request is not sufficiently detailed to enable the records to be identified

This aspect of the request is dealt with in detail at page 7 of the manual. Section 10(2) specifically requires a further related offer of assistance to the requester before such a refusal occurs. Refusal on this basis should occur only if the body, after making all reasonable efforts with the requester, is left in the position that it simply cannot identify which of its records the requester wants. Refusal on this basis should be seen as very much a provision of last resort. The time and effort devoted to the provision of good quality assistance to the requester will result in significant administrative benefits for the public body

:

it develops a good relationship with client

it promotes the ‘quality customer service’ to the public

it results in a more focused request, requiring less administrative resources to process it

it will diminish the likelihood of appeal

3. A voluminous request

The volume of records sought can also be a basis for a refusal of a request under section 10(1)(c). However, there is a statutory obligation on the public body to assist the requester to narrow his or her request before refusing a request on those grounds (section 10(2) refers).

It should be noted that the expression "retrieval and examination of such number of records" and "examination of such kind of records" are likely to be given a careful interpretation, given that use of s 10(1)(c) results in requesters not making any progress towards having their request considered. Further guidance on the application of this provision will issue from the CPU.

A body will not be able to include additional time or work needed because its filing system or index searching is cumbersome or inefficient. Requesters are entitled to expect that a public body will have an efficient records management system. If section 10(1)(c) is used, it should only be on the basis of a documented and defensible estimate of how the other work of the body would be interfered with or disrupted to a substantial and unreasonable extent.

Another approach for dealing with a very large request is to offer to provide the records to the requester on a phased basis. As this provision is outside of the strict provisions of the Act, it is essential that prior agreement of the requester is secured to the arrangement. In this way, it may be possible to agree an extended timetable to handle the request which goes beyond the statutorily required time periods, but which also allows the body to deal with the request in manageable parts. The requester must be informed of his or her rights to appeal the refusal under section 10(1)(c) if he or she is not agreeable to phased release.

Occasionally, circumstances may be such that other legislation could require the publication (within 12 weeks of receipt of the request) of the same record sought by the requester.

Section 10(1)(d) allows the refusal of the request on this basis. Such a refusal would be discretionary. A body could choose to instead proceed with the request, where the earlier release of the record did not pose difficulty.

5. The request is frivolous

The Act also provides that requests can be refused on the basis that they are "frivolous" (section 10(1)(e) refers). The Oxford English Dictionary defines ‘frivolous’ as: ‘of little weight, value or importance; not worthy of serious attention; having no reasonable ground or purpose; characterised by lack of seriousness or sense; silly’.

Such a possible refusal would need to be well grounded and to take into account the overall context of the FOI Act. For example, requesters are entitled by the Act to seek to exercise the right of access to any of the records (including both significant and trivial records) that a body holds, and the reasons for a request are irrelevant to a decision upon it.

The adjective "vexatious" needs to be seen in its statutory context within the Act. Certainly, repeated and very closely sequential requests for precisely the same records may be properly characterised as "vexatious" and refused on that basis. However, requests which are made close in time to one another may not, in circumstances, qualify as vexatious. This is firstly because the later requests may in fact encompass subsequently altered or annotated, or newly created, records, and hence open fresh ground for decision. Secondly, this may be because the lapse of time itself, between requests for precisely the same documents, may have resulted in significant changes in the circumstances surrounding the documents (regarding the consequences of disclosure or the public interest), such that a possibly different decision may result.

The NZ Ombudsman has adopted the approach that a request may be ‘vexatious’ if the requester is abusing the rights granted by statute rather than exercising them in a bona fide manner¹.

7. A fee or deposit has not been paid

The Act also permits refusal of requests where a fee or deposit payable under section 47 has not been paid (s.10(1)(f)). This affords a public body discretion to refuse a request where there is a fee is outstanding in respect of a previous request.

7. Deferral of Access

Where access is to be granted, the only remaining issue is the timing of that grant of access. A possible option is to defer access under section 11. Such deferral is available where:

(a) the record was prepared solely for the Oireachtas and is to be provided within a reasonable period after receipt of the request (s 11(1)(a));

This purpose of this provision is to respect the position of the Oireachtas and allow the Houses or a Committee of the Houses to have priority of access to records prepared solely for its information, prior to the release of that information under FOI.

(b) the record is a kind specified in section 20(2)(b), (d) or (e), the disclosure of which before a specified day would be contrary to the public interest (s 11(1)(b);

Section 20(2) provides, inter alia, that the following matters may not be regarded as coming within the deliberations of public bodies. They do not therefore enjoy the protections of the section 20 exemption, but may be deferred in accordance with section 11(1)(b):

20(2)(b): factual (including statistical) information and analyses thereof

20(2)(d): a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body

20(2)(e): a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice or such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

(c) the record is "of such interest to the public generally" that it is to be published through the means of the Oireachtas within one week of the deadline for the decision on the request (s 11(1)(c).

Deferral under section 11 is strictly subject to the above criteria. It represents a mechanism under which public bodies concerned with timing can disclose records consistent with the requirements of the Act.

A requester may appeal decisions outlined in paragraph (b) and (c) above directly to the Commissioner, without the requirement to first seek internal review of the matter.

8. Charges

Section 47 of the Act permits the charging of a fee only in connection with:

1) the gathering together of the relevant records (search and retrieval time); and

2) any copying of the record which is required (s 47(2)).

Further, the number of hours of search and retrieval time which can be charged are limited to those which an efficient and well-organised body would need to find the records (s 47(3)(a)).

The hourly amount of the search and retrieval fee will be set by regulation, as will the charge for the copying of records. The Department of Finance will issue guidelines in this regard.

Further charging principles in section 47:

Where the requester is seeking records which contain only personal information about her or himself, a fee for search and retrieval time is not be imposed (unless a "significant number of records" are involved) (s 47(4)). "Significant" means that the number of records involved would be markedly higher than the average for such requests.

The public body should consider not imposing a fee for the costs of copying personal records if it is not reasonable to do so, having regard to the limited means of the requester and the nature of the personal information being sought (s 47(4)(b))

A fee (or deposit) may be reduced or waived if the body considers that the records (if disclosed) would be "of particular assistance to the understanding of an issue of national importance". This test is a ‘hypothetical’ one which asks about the probable situation on the assumption that the records are released. It is expected that decisions in respect of this provision will normally only be taken at a senior level in a public body and only after careful consideration of whether the information would be of particular assistance to understanding an issue of national importance

As regards fees generally under the Act, a public body should not impose them if it considers that the amount of the proposed fee would be less than the administrative (including accounting and collection) costs tinvolved (s 47(6)). Such administrative costs would include the materials, resources and staff time necessary for all of the clerical and decision-making tasks which may be involved in the imposition of the fee.

Payment of a Deposit

In the usual case, fees would be notified to the requester at the time of the substantive decision on the access request. However, where the fee for search and retrieval alone is likely to exceed £ 40, the Act requires the sending of a request for a deposit, including a formal estimate and notice of rights to the requester (s 47(7)). This letter must be sent to the requester within 2 weeks of the receipt of the request. The intent behind this letter is to settle the question of the fee before the search and retrieval work is actually undertaken. The letter is to provide an estimate of the hours of such work required and to seek a deposit of at least 20% of the related fee, and also to advise that work on the request and the time limits for the decision will recommence only upon payment of the deposit.

In the letter, the body should also refer to the amendments to the request which may have the effect of reducing or eliminating the deposit otherwise required.

Refunds of fees are necessary where

1) the amount of a deposit exceeds the actual fee charged in relation to a request (s 47(10)); or

2) the fee or deposit decision is partly or wholly reversed on appeal (s 47(11)). The requester should only be required to pay for work actually done and costs actually incurred. Further, refunds must be given if the requester succeeds in obtaining a decision on appeal reducing the amount of the fee or deposit.

Section 47(12) has the effect in some circumstances of extending the time available for making a decision on a request. It does so by eliminating the following periods from the time calculation under section 8(3):

the period between the request for a deposit relating to search and retrieval costs, and the actual payment of that deposit;

the period during which any appeals concerning the fee or deposit are pending at any of the three possible levels of appeal; and

the period between receipt of the request and the making of any amendment with a view to reducing or eliminating the deposit requirement.

9. Summary of Time Limits

Time Limits which the Applicant must meet

Time Limits which a third party must meet

Time Limits which the Information Commissioner must meet

10. Access to Parts of Records

Section 13 allows for access to parts of records.

Where part of a record is exempt, this section provides for access to the remainder, where this is practical and does not mislead.

The public body is required to comply with this section when it is practicable to do so. In considering whether release of an edited version of the record may be practicable, you should consider:

the extent to which the exempt matter is discrete or forms an integral part of the record

the proportion of the material in the record to be deleted

the extent to which the edited version of the document continues to convey the general sense and meaning of the original document

whether the edited version would be misleading to the requester. Section 13(2) specifically provides that this section should not be used if the resultant version of the record would be misleading.

Obligation to inform the requester

Section 13(3) provides that the requester be informed that the version of the record has been edited. The notice to the requester should also specify the nature of the matter deleted, unless the information is such that the "refusal to confirm or deny provision" has been applied (sections 19(5), 22(2), 23(2) or 24(3) refers).

11. Forms of Access

Manner of Access

In accordance with section 7(1), a requester may seek access in a particular form.

Section 12 of the Act provides that access may be offered to requesters in the following forms:

a copy of the record

a transcript of the information

a computer disk or other electronic device containing the information

in case the record is of sound images, a reasonable opportunity to hear the record

in case the record is of visual images, a reasonable opportunity to view the record

in case the information is in shorthand, the information in written form

in case the information is in code, the information in decodified form

the information in such other form or manner as may be determined. Determined means determined by the Minister for Finance. The purpose of this provision is to allow the Minister to determine other forms of access to take account of changing technologies or record keeping practices or terminology.

the information in a combination of any two or more of the foregoing

While the spirit of the Act requires that a public body comply insofar as is possible with the wishes of the requester, a body may, in certain circumstances, consider offering access in an alternative form. Section 12(2) sets out particular circumstances in which such alternative access may be offered:

a) where access in another form would be significantly more efficient

This may arise, for example, where the information is held in a form other than that requested and the transfer of the records to the preferred form would impose a significant burden on the resources of the body e.g. information stored on cassette may require many staff hours to transcribe to paper.

While the Act does not require consultation with the requester when this provision is invoked, it would be good administrative practice to explain fully to the applicant the problems associated with access in the requested form and the reasons for offering the alternative option.

b) where the giving of access in the form or manner requested would:

It may be inappropriate to allow physical handling of an old record which is in a particularly fragile or delicate condition.

Where copyright of a record belongs to a third party, the public body may have an obligation to prevent release of copies of the record e.g. architectural drawings. In such circumstances, it may be more appropriate to allow inspection of the record

A public body can justify offering information in an alternative form if doing so would breach a legal duty. A body may, for example, owe a duty of confidence to a third party in respect of a record. In such circumstances, it may be willing to release a transcipt of the record rather than an actual photocopy to prevent release of information which may help to identify the supplier e.g. style of handwriting

If disclsoure in the preferred manner would prejudice the interests protected by the exemption provisions, the public body can make the information available in another form. Under section 13, a body can body can delete exempt material from documents and release the remainder of the information. In some instances, the actual copy of the edited document may provide clues to the exempt information removed e.g. the number of confidential sources relied on by a body in relation to a particular investigation. In such cases, the body may prefer to issue a written statement of the non-exempt information.

Where any of the circumstances in paragraph b) apply, the decision maker must consult with the requester to agree an alternative form of access. Where, following such consultation, agreement on the form of access is not possible, the decision maker may grant the request in the form he or she considers most appropriate.

12. Making the Decision

the decision concerned and the day on which it was made [s.8(2)(a)]

the name and designation of the person in the public body concerned who is dealing with the request (unless the head concerned reasonably believes that their disclosure could prejudice the safety or well-being of the person concerned) s.8(2)(b)]

if the request aforesaid is granted, whether wholly or in part­

the day on which access to the records will be offered to the requester

the form of access

the period during which the record will be kept available for the purpose of such access, [s.8(2)(c)(i)] and

the amount of any fee payable by the requester [s.8(2)(c)(ii)]

if the request aforesaid is refused, whether wholly or in part­

the reasons for the refusal, [s.8(2)(d(i))] and

the following additional information relating to the decision, (unless the refusal to confirm or deny provision is being invoked i.e. pursuant to section 19 (5), 22 (2), 23 (2) or 24 (3))

any provision of this Act pursuant to which the request is refused, and

the findings on any material issues relevant to the decision, and

particulars of any matter relating to the public interest taken into consideration for the purposes of the decision, [s.8(2)(d)(ii)]

if the giving of access to the record is deferred under section 11, the reasons for the deferral and the period of the deferral, [s.8(2)(e)] and

particulars of:

rights of review and appeal under this Act in relation to the decisions referred to in the notice,

the procedure governing the exercise of those rights and

the time limits governing such exercise. [s.8(2)(f)]

Section 8 requires that the name of the person dealing with the request be provided in the notification. In rare circumstances, a public body may not wish to identify the particular staff involved because of fears for their personal safety or well-being. In these instances, details of an appropriate contact point for the body should be provided. This person, should be sufficiently aware of FOI matters to handle queries and pass them on to the appropriate areas of the organisation (i.e. the information officer, press officer, etc.)

Reasons for Decisions

The ability to give a rational explanation for a decision is central to good decision making in all areas of administrative law. Section 8 of the FOI Act requires that a notice be given of the decision including the reasons for each decision and the findings on material questions of fact underlying the reasons. It is not sufficient compliance with this section, if the reasons for refusing access merely paraphrase the words of the particular exemption.

A proper decision should always be capable of rational explanation, and a statement should contain such an explanation The statement of reasons should show a connection, supported by a chain of reasoning, between the findings of fact and the decision. A decision-maker should look at each specific record, or separate part of a record, and state specifically why access to it is being refused. A failure to give such an explanation may appear to be an arbitrary one and not based on proper considerations.

What does this mean in practice?

When access is refused, the decision maker must advise the requester of the following having regard to the particular requirements of each exemption:

a description of the records are within the scope of the request, without revealing exempt matter

why the records are sensitive

the exemptions claimed for different records (or parts of records) and why each applies

what the likely consequences of release may be

arguments for and against disclosure, where appropriate.

The notice must contain the real reasons for not disclosing documents. Embarrassment at either political or administrative level is not a reason to deny access.

Standard of Proof

In any review by the Commissioner, the onus of proof that the decision was justified rests with the public body.

The decision maker should establish that the records in question contain exempt matter. S/he does this by making findings of fact that establish that the record

is of a type described in an exemption

and where required, one of the effects described in the exemption could reasonably be expected to follow if it were disclosed.

Where the exemption is limited by the public interest test, the decision maker should consider the relevant competing public interest factors. This consideration should be conveyed to the requester, including those factors which influenced the decision in weighing the various public interests and deciding where the balance of the public interest might lie.

Information Commissioners abroad have commented to the effect that insufficient weight is sometimes given by decision makers to an applicant’s right of access under the FOI Act, and that exemptions are frequently claimed by public bodies when the essential public and private interests that are sought to be protected are not apparent.

Findings on material issues

‘Material’ issues are facts which are relevant to the decision. Material issues are therefore the facts necessary to establish the basis for the decision. Some will be facts in the sense of basic factual matters on which the decision depends, such as the identification of the relevant documents. Others may be facts in the sense of evidence on which can be based the conclusions necessary to satisfy the statutory requirement of a particular exemption.

The ‘findings’ are the decision maker’s conclusions about the material facts. However, only those findings of fact which are relevant to the issues to be determined in the decision need be set out in the statement. A finding on a question of fact will be relevant:

where it is a fact upon which the decision is based.

any relevant consultations, statutory or otherwise, which have taken place

the scope of the request as interpreted by the body;

any transfers of requests to other bodies;

any matters of fact which have, for example, influenced a decision to defer access to a record or to provide access in a form other than that requested;

any other matters of fact relevant to the processing of the request.

Sometimes the facts will be immediately apparent from the material before the decision maker. In other cases, the findings will be reached by a process of reasoning, where they are deduced from the primary facts. It will ordinarily be necessary to state the material primary facts and the process of derivation or inference from those facts in order to provide adequate information about the ways in which the decision was reached.

All material findings of fact that have been relied on should be set out and should be clearly stated. If a material question of fact is not stated in a statement of reasons, the Information Commissioner may assume that it is not material, and may find that the decision is defective in not taking all relevant considerations into account.

A proper FOI decision: Summary

A proper FOI decision must be based on the detailed and complete evidence required in the context of the particular circumstances and the exemption provision at issue.

This foundation of the decision in properly considered evidence must be reflected in the statement of reasons and in its references to the material supporting the findings made.

Schedule of Documents

The use of a schedule to list and describe the records identified as being within the ambit of the access application, is strongly recommended where more than a few records are involved. The schedule is not a substitute for the statement of reasons but will assist in the preparation of the more detailed statement.

It will assist decision makers to properly discharge their duties under the FOI Act by

providing a means of ordering the material under consideration

setting out clearly the considerations attaching to each one

providing an essential reference source both for internal review and for review by the Commissioner

A version of the schedule from which sensitive information has been removed should be attached to the statement issuing to the requester. It will assist the requester by giving a clear overview of the records considered and the decision made in relation to each one.

What should it contain?

The level of detail contained in the schedule will depend to a large extent on the nature of the FOI request under consideration. It is recommended, however, that the schedule list the records sequentially by number and contain the following information:

the date of each record

the author of the record and the person or persons to whom it is addressed (or the title of the record if it is a report or a submission of some kind).

a brief but sufficient description of the record or its contents to show a prima facie claim for exemption (i.e. a letter seeking legal advice which may be prima facie, exempt under section 22).

the exemption claimed for each record

where the claim for exemption relates to parts of a record, a clear indication of the part or parts involved (e.g. paragraph 5 or line in paragraph 5 on page 3). A sample schedule is attached. Also included is an example of a completed schedule from the Western Australian Information Commissioner.

Identification of documents

One of the material questions of primary fact which must be decided in relation to an FOI request is the identification of the documents which fall within the terms of the request. The notification and schedule which issues to the requester should contain sufficiently detailed descriptions of records to enable him or her to know what records are in issue and the nature of those records. It should be sufficiently clear and detailed to allow the requester to make an informed decision on appeal options.

There may be rare occasions can be grouped rather than listed individually. This should only be used as a last resort where the number of records is voluminous and where the specific information in the records involved is not the significant factor in the claim for exemption. Great care should be taken in adopting this approach not to deprive the requester unnecessarily of specific information which he or she needs to make an informed decision about seeking review. This approach does not relieve the decision maker of his or her responsibility of examining each to determine exempt material.

What is a ‘record’ for the purposes of preparing a schedule?

There is no precise guidance as to what constitutes ‘a’ separate record for the purpose of decision making. Generally it is good administrative practice to identify as separate records each item that is different from other items in such respects as: source, author, date, addressee, contents, title, etc. It will be necessary to identify each part of a record individually where the exemptions or the specific reasons for claiming exemptions are different. Where edited copies are being released it will be necessary to deal with each record page by page.

Section 8(2)(f) requires a notice of decision give particulars of rights of review and appeal under this Act in relation to the decision and the procedure for the exercise of those rights including time limits governing such exercise.. Where applicable, the information include particulars of the manner in which an application for internal review should be made (s14(2)).

What is particulars of rights of review and appealwill depend on the circumstances:

Where the original decision is made by a head, the notice should not include information about the right of internal review , since it does not apply in such cases, but it will be necessary to inform the requester of her or his rights to apply to the Information Commissioner for review of the decision.

A third party with the right to seek review under the reverse-FOI provisions should also be informed of her or his right to review by the Information Commissioner.

A body, which has made an actual decision on a request but has done so outside the statutory time limits, should inform the requester of the right to internal review or the right to external review as appropriate (section 41 refers)

Bodies may find it convenient to prepare standard statements concerning rights of review, which can be varied according to circumstances, and attach such a statement to the notice.

Cases Precedent Referred to

1. NZ 9 CCNO 89, 90 (J.F. Robertson)

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