Guidelines for processing requests for access to documents/information or amendment of records under the FOI Act

RTA Guidelines: PN 069G for (Policy Number PN 069) Guidelines for processing requests for access to documents/information or amendment of records under the FOI Act 1. Purpose These guidelines are issued to assist Roads and Traffic Authority ( RTA ) staff to understand their responsibilities and accountabilities in responding to applications for documents made under the Freedom of Information Act 1989 ( FOI Act ) and applications to amend records, which are also made under the FOI Act. These guidelines should be read conjunction with PN 069. 2. Overview The FOI Act gives any member of the public a statutory right to access any document held by a government agency, unless that document falls within one of the categories of exemption. The reason why an applicant wants to access the document is irrelevant. Premier s Memorandum 2008-19 encourages agencies to identify and release, as soon as practicable, information which can be made available to the public at minimal cost and without compromising the public interest. In particular, agencies should consider routinely releasing information that is sought regularly under the FOI Act. Applicants are also entitled to apply to amend their personal information if they consider it to be incomplete, incorrect, out of date or misleading (this will change with the introduction of the Government Information (Public Access) Act 2009). Government agencies have 21 days to process an application. This time frame is extended by14 days if third parties need to be consulted If an advance deposit is requested, time stops running until the advance deposit is paid. If an application is not determined within the required time frame, the FOI Act provides that the RTA is deemed to have determined the application by refusing access, and the applicant can seek a review of the agency s decision. The RTA cannot control the use made of a document that has been released under FOI Act. The Records Access Unit ( RAU ) receives and processes applications on behalf of the RTA. 2.1 The RAU categorises applications as: Significant matters on the whole are major projects or likely to generate media attention, debate in Parliament, may involve the RTA in legal action or are very comprehensive and wide-ranging. The Director signs off on the Certification of Document Search form(s). A separate certification is required for each supervisor who arranges a search. Emails are not sufficient for this purpose. 1 of 11

Complex matters do not initially appear that they will generate media attention or debate in Parliament. However they may involve the RTA in legal action and are complicated, intricate or difficult. The General Manager signs off on the Certification of Document Search form(s). A separate certification is required for each supervisor who arranges a search. Emails are not sufficient for this purpose. The RAU may at any stage in the FOI process re-classify an Application. For example if the documents are reviewed by the RAU and it determines there is a potential media interest or the delay in receiving documents has resulted in a time critical issue. General matters are the majority of FOI Application received by the RAU. The Unit coordinates the search and sign off is completed by the RTA staff member who searched for the documents. These matters are often a single focus. Policy no. 069 sets out the way in which the different categories are to be processed. 2.2 Each Directorate has an FOI co-ordinator, nominated by the Director. This person has responsibility for co-ordinating the search for documents within the Directorate and providing the Directorate s feedback to the RAU about the documents. While it may be of assistance to the RAU determining officer to receive information from the business area regarding the documents provided (including information regarding any concerns as to release of the documents) it is the RAU determining officer who must make decisions regarding the release or otherwise of documents and therefore all relevant documents must be provided to the FOI decision maker by the business area. 2.3 The RAU will always negotiate the scope of the application with an applicant if their request is an unreasonable diversion of the RTA s resources or if the documents sought are not clear to the subject matter expert. It is proper that the RTA act in accordance with the spirit of the Act throughout the process of assessing the FOI application. 2.3.1. Only the Manager, Records Access Unit or the determining officer within the RAU are authorised to contact the applicant and negotiate scope. No other staff of the RTA are to make contact without written agreement of the Manager, Records Access Unit. 2.3.2. Negotiation of the scope allows requests to be clarified, potentially timeconsuming and expensive requests to be reduced, and possible misunderstandings to be resolved. 2.3.3. The RTA must not refuse to accept an application merely because it does not contain sufficient information to enable the document(s) to which it relates to be identified. Rather, the FOI Act requires agencies first to take such steps as are reasonably practicable to assist applicants to provide such information (s.19(1)). 2.3.4. It is common that applicants are unable to describe, in the particular language of the agency, the documents they seek. The RTA will therefore make due concessions. In particular, if there is doubt as to 2 of 11

whether the applicant wants particular documents, the RTA should consult with him or her. 2.3.5. The FOI Manual at 3.7.11states there is no prescribed format for taking reasonable steps to assist the applicant. It will depend on the circumstances of each case. While this is correct the RAU will: 2.3.5.1. Assist the applicant by discussing how to narrow an application by varying the date ranges, location and specific type of documents etc. 2.3.5.2. Inform the applicant about the consultation process and how they may be able to reduce the cost of an application. 2.3.5.3. Inform the applicant of the consequences of not narrowing the scope such as processing costs and unreasonable diversion of the RTA s resources. 2.3.5.4. The decision to narrow the scope remains solely with the applicant. 2.3.5.5. All consultation with the applicant will be documented and any subsequent decision of the applicant to narrow the scope or not will be in writing and placed on the FOI file. 3. Documents that can be accessed under the FOI Act The FOI Act gives a right of access to the documents that are held by the RTA at the time that the application is received. 3.1 A document is defined as: (a) any paper or other material on which there is writing or in or on which there are marks, symbols or perforations having a meaning, whether or not that meaning is ascertainable only by persons qualified to interpret them; and (b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced (s.6). The notion of document therefore is wide and includes draft documents, notes of telephone conversations, voice mail messages, notes written on post-it pads, work diary entries, personal work notes, rough notes taken while interviewing job applicants (both during the interviews and in the post-interview discussions), email messages, maps, plans, graphs, film, file notes on a disk and any words, figures or symbols having meaning to someone else. A document includes information which is stored on a computer database, where the agency can use that database to create the written document using its ordinary processes (s.23). 3 of 11

Documents need not necessarily be contained on official files. They may be in the possession of individual employees. Generally, if a document in any way relates to the functions of the agency, it is subject to FOI. A document is held by the RTA irrespective of whether the RTA created it or received it from elsewhere (s.6(1)).this includes documents temporarily held by the agency. Any documents created by the agency but held by the Archives Authority, the Australian Museum, the Museum of Applied Arts and Sciences, the State Library, and any other prescribed agency (which includes the Ombudsman) are deemed to be held by the agency which created them (s.11(1)). 3.2 The RTA is not required to create new documents for the sole purpose of providing applicants with the information they seek. Therefore, the RTA is not required: to make available information which is not in its possession in documentary form; to collect together information from a number of documents in its possession to create a new document. However, the RTA is not prohibited from creating a document and this can sometimes be more efficient than processing the application itself. If an application relates to information held by the agency in electronic form, and the agency can produce a written document containing the information by: the use of equipment that is usually available to [the agency] for retrieving or collating stored information (s.23), then the RTA must treat the application as if it were an application for that written document. Therefore, if information can be retrieved from a data warehouse by running a query, it should be actioned. 3.3 The RTA has an obligation under s.14 of the State Records Act 1998, which requires that: if a record is in such a form that information can only be produced or made available from it by means of the use of particular equipment or information technology (such as computer software), the public office responsible for the record must take such action as may be necessary to ensure that the information remains able to be produced or made available. 4. Searching for documents When the RAU receives a valid FOI application, it is required to search for documents throughout the RTA. It is standard practice to ask the relevant business area of the agency to conduct the search for documents rather than the FOI decision maker conducting the search 4 of 11

themselves. This practice is based on the assumption that staff from the relevant business area are better placed to locate and identify all documents relevant to the request than someone from a different area of the agency. It is, however, the responsibility of the FOI decision maker to ensure that a thorough and diligent search for documents has been completed. For that reason the FOI Case Manager may request further searches or clarification of areas searched. For significant or complex matters, an email request for search of documents is sent to the relevant Directors or General Mangers and cc d to the relevant FOI co-coordinators. The FOI co-ordinator should contact the appropriate Subject Matter Expert(s) ( SME ) in their Directorate and arrange for the documents to be gathered. A thorough, diligent and methodical search for documents is to be conducted. The FOI co-ordinator should also advise the RAU if the documents may (also) be held in another Directorate. The RAU undertakes any direct search of the DRIVES database when required. 4.1 If it is going to take two or more hours to locate and copy the documents, the FOI co-ordinator should provide the RAU with an estimate of the amount of time (to the nearest 15 minutes) that it will take to locate and copy any documents relating to the request. The Directorate must provide the documents or give a time estimate within 2 working days. 4.2 The time that it would take to search for documents is included in the calculation of the processing time: Roads and Traffic Authority, New South Wales v Hutchinson (GD) [2007] NSWADTAP 28. 4.3 If the work involved in locating and copying the documents will be more than 2 hours, the RAU will ask the applicant to pay an advanced deposit. The 21 day time limit stops until the advance deposit is paid. While searching for documents should cease until the deposit is paid, if there are large volumes of documents it may be prudent to continue. Before refusing to deal with the application, the RTA must try to help the applicant to narrow the scope of the request. If the request appears to require the production of large volumes of documents, the FOI Co-ordinator should provide a detailed email explaining why the documents will be time consuming to search for and how the application could be narrowed so as to make the search less time consuming. 4.4 If the application is framed in very broad terms, then it may be an unreasonable diversion of the RTA s resources to process the application. In that case, the RTA can refuse to process the request: s. 25(1)(a1). There is no absolute rule for what amounts to a voluminous request, but as a rule of thumb, the RAU will ask the applicant to narrow the scope of an application where it will take more than 40 hours to search for the documents. Before refusing to deal with the application, the RTA must try to help the applicant to narrow the scope of the request. If the request appears to be very voluminous, the FOI co-ordinator should provide a detailed email explaining why the documents will be time consuming to search for and how the application 5 of 11

could be narrowed so as to make the search less time consuming. The RAU will contact the applicant (see 2.3.1). 4.5 The request should be interpreted in a broad, common sense way. An applicant does not usually know what documents exist and the best he or she can usually do is to identify what he/she wants in general terms. A request must be read fairly and extends to any documents that might reasonably be taken to be comprised within the description used by the applicant. For example an application that seeks all briefs relating to a specific subject this should also include memoranda and advice in other forms, provided that it deals with the subject matter of the application. 4.6 If the request is difficult to understand, the FOI co-ordinator should contact RAU, who will contact the applicant to clarify the meaning of the request. Only RAU staff mat contact an applicant. 4.7 The RTA is only required to take reasonable steps to locate documents that fall within the scope of the request. Ordinarily, this will involve a search of CARMS for relevant records and any other data warehouse, asking SME and considering if other documents may be held that are not part of the RTA s official files. 4.8 The search must be thorough and the conducted by staff who have knowledge of what documents may be available. If the RTA s contractors might hold relevant material, those contractors should also be contacted and asked to provide a copy of any relevant material to the FOI co-ordinator. 4.9 All documents that fall within the scope of the applicant s request must be forwarded by Directorate staff to the FOI co-ordinator if the matter is classified as significant or complex. The FOI co-ordinator will forward the documents to the RAU for determination after the appropriate sign-off. The documents should be accompanied by a Search Declaration signed by the Director/General Manager certifying that a complete search has been conducted. If the Director or any of the SME have concerns about the release of any of the documents, these should also be raised (either in a separate memo or email) at the time that the documents are returned (please refer to 2.2). 4.10 If the RTA is concerned that a FOI applicant may misunderstand or misinterpret information in documents to be released, it is always open to the RTA to include an explanation or to release further information outside the scope of the application. 4.11 The documents provided must be unstapled, single sided and in original format to assist with the scanning and copying process in the RAU Unit. Alternatively, the Search Officer may scan the original documents and send an electronic version (pdf) to the allocated Case Officer. 4.12 If a complaint is made to the NSW Ombudsman, the RTA may have to give the Ombudsman evidence justifying the searches that were undertaken and demonstrate that the searches were sufficient to locate the documents that the RTA holds. 6 of 11

5. Advanced deposits If the application relates to non-personal information and will take more than 2 hours to process, the RAU will usually ask for payment of an advance deposit. The 21 day time limit for processing an application stops running until the advance deposit is paid. The advance deposit must be paid within the specified time frame. If not, the RAU will write to the applicant advising that application has been refused because of the failure to pay the advance deposit. As the 21 day time period stops running while waiting for an advance deposit, it is important that the RAU is notified within 2 days of any request that would take more than 2 hours to process. 6. Consultation The RTA cannot release information that relates to a person s (which includes an organisation or government agency) business, professional, personal, commercial or financial affairs unless the RTA has first consulted the relevant third party. The FOI Act allows an additional 14 days to undertake this consultation process. The RAU may ask the SME or FOI co-ordinators to help locate contact information for the people or businesses named in the documents. 7. Exemptions In accordance with the spirit and wording of the Act, the RTA considers every request with the aim of assisting the public to know and understand the processes of administration and management of the agency. The FOI Act allows for requested documents to be withheld where they are considered to be exempt from release. 7.1 The RTA protects its legitimate the decision-making and policy-making functions, if their disclosure would be contrary to the public interest and commercial interests and other interests, including privacy, of individuals by using the exemptions provided for under the Act. In some cases, even when an exemption provided by the FOI Act appears both applicable and justifiable a document may be released by the Case Officer. 7.2 The RAU determining officer will therefore consider, in relation to the provisions of the FOI Act, any document regarded as possibly exempt and decide whether it should be released, released with exempt details deleted, or withheld. 7.3 The FOI Act contains a list of exemptions, in Schedule 1 to the Act, which set out the circumstances in which documents may not have to be disclosed by the RTA. If only part of a document is exempt, the document may be edited so as to remove the exempt material and the rest of the information will be released. 7.4 The RAU requires input from the SME into any decision about whether or not a document is exempt. A SME should attempt to identify their concerns about the release of information in general terms. The determining officer will decide 7 of 11

whether that information falls within the scope of an exemption in Schedule 1. The FOI case manager will consider input from RTA staff however the actual decision regarding the release or otherwise of documents rests solely with the determining officer in the RAU 8. Applications to Amend Documents If a document contains information concerning a person s personal affairs, and the person considers that the information is incomplete, incorrect, out of date or misleading, that person may apply to amend the RTA s records under the FOI Act. When considering an application to amend records, the RAU will consider: the circumstances in which the document was created; whether the information was an accurate record of the facts as at the time that the document was created; if any opinions expressed in the document were genuinely held and accurately recorded; if the opinion concerns medical matters (or other matters for experts) whether the person expressing the opinion is an expert in that field. To find out this information, the RAU may need to interview staff from the Directorate and will liaise with the relevant Manager while doing so. 9. Determination Process The determination is ultimately the responsibility of the determining officer in the RAU. The determining officer will take into account the outcome of any consultations conducted with third parties, but is not required to adopt the third party s views. The determining officer will also take into account and be guided by the views of the SME, but will make her or his own independent decision. 9.1 Significant FOI Applications 9.1.1. When a draft determination is ready it is sent to the relevant director for comment within two days. The RAU will contact the Director s nominated assistant if there has not been a response within the timeframe. If the signed file is not returned within a reasonable time (2 3 hours) the RAU will release the determination and accompanying documents without any further correspondence with the Director. 9.1.2. Directors have NO ROLE in making a determination. This authority is solely delegated to the RAU. However the RAU relies on Directors as subject matter experts to assist the RAU to interpret the documents and highlight any key issues. 8 of 11

9.1.3. The Manager, Records Access Unit will send a copy of a significant determination to the Minister for Roads once it had been sent to the applicant. 10. Internal Review An applicant who is dissatisfied with the agency s determination can apply for an internal review of that determination. The applicant has 28 days from receiving notice of the determination to apply for an internal review (although this time period can be extended by the agency). If a determination is made to release a document, despite the objection of a third party, the third party also has a right of internal review. 10.1 Internal review determinations must be made within 14 days of receipt of the internal review application. 10.2 Internal review determinations are made by the RTA s Legal Branch. On receipt of an internal review application, the RAU will send the complete FOI file and a memo to the General Counsel within 2 days of receipt of the internal review application. The General Counsel determines who will conduct the internal review. Once the internal review is concluded Legal Branch advises the applicant and the RAU of the outcome. 10.3 The General Counsel s delegate may seek input from the SME when making the internal review decision. 10.4 All documentation associated with the Internal Review is to be placed on the FOI file and returned to the RAU for storage. 11. External Appeal An applicant (or third party) who is dissatisfied with an agency s internal review determination can seek an external review by either the Ombudsman or the Administrative Decisions Tribunal ( ADT ). 11.1 An applicant has 60 days to apply to the ADT (although the ADT can extend this timeframe). 11.2 If the matter goes before the ADT, the RTA has the onus of proving to the ADT that the exemptions that it claimed were justified and that the ADT should make the same decision not to release the information. This will generally involve one or more RTA staff members giving evidence on oath. 11.3 The ADT has the power to affirm, vary or set aside the decision of the RTA and substitute a decision of its own. 11.4 There is no time limit for making an application to the Ombudsman, although the Ombudsman will usually only consider a complaint if it is made within 6 months 9 of 11

of the internal review determination. Again, the Ombudsman will generally require the RTA to provide evidence to justify its decision. 11.5 Under the Ombudsman Act, 1974, the Ombudsman may investigate the conduct of anyone in relation to an FOI determination. Applicants have a right to ask the Ombudsman for an external review of their application. The right to ask for an external review only exists if the applicant sought an internal review and that review has been finalised. 11.6 The Ombudsman may request access to all documents related to the determination, including legal advice, but is not permitted to disclose any exempt material. A complaint may be dealt with in a number of ways including conciliation, mediation, suggestion or recommendation. Where the RTA accepts an Ombudsman s suggestion of a further reconsideration of the decision by the RTA, there is no further right of review. 11.7 The Ombudsman may also recommend that the release of a document is in the public interest, or that the RTA s procedures be reviewed. The RTA is not obliged to adopt an Ombudsman s recommendation, but the Ombudsman can seek consultation with the Minister and make a special report to be tabled in Parliament. 12. Additional Information 12.1 The Manager, Records Access Unit is responsible for monitoring and reviewing the guidelines. 12.2 FOI fees and charges (GST exempt) Nature of application Application fee Processing charge Access to records - personal requests Access to records - other requests $30 $30 /hour after first 20 hours $30 $30 /hour Amendment of records nil nil Review of Determination/Conduct FOI - $40 nil *. A 50% reduction in fees may apply if you, are under 18 years of age, suffer financial hardship, are a non-profit organisation or apply for public interest reasons 10 of 11

12.3 Applicable RTA Forms 12.3.1. Request for Access to Documents RTA Form No. 228 12.3.2. Amendment of Records RTA Form No. 622 12.3.3. Internal Review RTA Form No. 229 Guideline replaces: These guidelines replace the Guidelines for processing requests for access to documents/information under the FOI or Privacy Acts and Guidelines for processing requests for amendments to documents under the FOI or Privacy Acts. 11 of 11