Express law No. 58

13 August 2007

Freedom of information and transfer of requests between

The Federal Court on 8 August 2007 ruled on the process
required to transfer a freedom of information request
between agencies. In doing so, the court provided guidance
on the matters which need to be taken into account when
considering whether to transfer a request.

Bienstein v Attorney-General (Commonwealth) and Minister
for Justice and Customs (Commonwealth) [2007] FCA 1174

The Freedom of Information Act 1982 (FOI Act) establishes
a process for public access to government-held documents.

Section 16(1) of the FOI Act permits an agency to transfer
part or the whole of a request for documents to another
agency where:

  1. the document is not in the possession of that agency,
    but, to the knowledge of that agency, it is in the possession
    of another agency
  2. the subject matter of the document is more closely
    connected with the functions of another agency.

In this case, the Attorney-General and the Minister for
Justice and Customs had each transferred requests to the
Attorney-General's Department.

The applicant challenged the validity of both transfers.
She also argued that an applicant has a right to insist
that the request remain with the agency that received it
when the applicant wants to determine whether that agency
holds any documents relevant to the request.

The Administrative Appeals Tribunal found that both requests
were transferred in accordance with section 16(1)(b) of
the FOI Act and that it did not have jurisdiction to review
the transfers.

Decision of the Federal Court

On appeal, the Federal Court (Gray J) ruled in favour
of the applicant. His Honour set aside the decision of
the tribunal and remitted each matter to the tribunal to
be heard again on the basis that the transfers were invalid
and each gave rise to a deemed refusal to provide documents
to the applicant.

His Honour found that section 16(1) of the FOI Act gives
an agency a discretion to transfer a request in two alternative
circumstances. The relevant test cannot be satisfied and
the transfer properly effected in either of those circumstances
until the transferring agency has made all necessary searches
to locate the document/s in question. Consequently, the
transfer of a whole request under section 16(1) of the
FOI Act without regard to what documents the transferring
agency has will not constitute a valid transfer.

His Honour held that section 16(1)(b) of the FOI Act will
only permit a transfer when the transferring agency has
the document in question in its possession but can identify
another agency with which the document is more closely
connected. His Honour reached this conclusion after analysing
the terms of section 16(1)(b), the context of other provisions
in the FOI Act and the underlying purpose or object of
the FOI Act. His Honour found that the tribunal was in
error when it found that section 16(1)(b) did not require
the Attorney-General or the Minister for Justice and Customs
to determine whether the documents sought by the applicant
were in their possession before transferring the request.

His Honour found that both transfers were invalid. Consequently,
the Attorney-General or the Minister for Justice and Customs
remained responsible for the processing of both requests
and each was deemed to have refused the request. Accordingly,
his Honour found that the tribunal had jurisdiction to
review those decisions (section 54 of the FOI Act).

Implications for clients

The Federal Court's decision clarifies the circumstances
in which a transfer can be effected. The decision makes
it clear that a transfer will not be valid unless the transferring
agency can demonstrate that it has conducted proper searches
for the documents which are the subject of a proposed transfer.

The decision also emphasises that an agency retains a
discretion under section 16(1) of the FOI Act not to transfer
a request.

More information

Text of the decision is available at Bienstein
v Attorney-General [2007]
FCA 1174

Jane Lye, Senior Lawyer, AGS acted as instructing solicitor
for the Attorney-General and the Minister for Justice and
Customs in this case.

For further information please contact:

Jane Lye
Senior Lawyer
T 07 3360 5736 F 07 3360 5795

Elena Arduca
Senior Lawyer
T 03 9242 1473 F 03 9242 1265

Justin Hyland
Senior Executive Lawyer
T 02 6253 7417 F 02 6253 7380

Important: The material in Express law is
provided to clients as an early, interim view for general
information only, and further analysis on the matter
may be prepared by AGS. The material should not be
relied upon for the purpose of a particular matter.
Please contact AGS before any action or decision is
taken on the basis of any of the material in this message.