When will an agency be required to generate a document in response to an FOI Request? Section 17 of the FOI Act explained

The Freedom of Information Act 1982 (FOI Act) provides every person with a legally enforceable right to obtain access to documents of an agency or a Minister. Generally, this does not require an agency to give information or to answer questions.

Section 17 provides an exception where:

• a request is made in accordance with the requirements of ss 15(2) to an agency
• it appears the applicant desires information that is not available in discrete form in written documents of the agency
• it does not appear the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded, and
• the agency could produce a written document containing the information in discrete form by:
  • the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information, or
  • the making of a transcript from a sound recording held in the agency.

If the above elements are satisfied, the agency must deal with the request as if it were a request for access to the written document containing the information. However, in accordance with s 17(2), an agency would not be required to produce the written document if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

Practically, this obligation arises where:

• an agency could produce a written document containing the requested information using a computer system that is ordinarily available to the agency, and
• doing so would not substantially and unreasonably divert the resources of the agency from its other operations.

Computer or other equipment ordinarily available to the agency

In Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67, the Full Court of the Federal Court held that ‘a computer or other equipment that is ordinarily available to the agency’ refers to a ‘…functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available’.[1]

Whether a computer system is ‘ordinarily available’ to an agency will depend on the facts, including whether access to it would involve a departure from the agency’s ordinary or usual conduct and operations.[2]

That case concerned a request for information that did not exist in discrete form, and the evidence showed that it would have been necessary for the agency to write a computer program that would take at least a week to write and cost a significant sum to comply with the request. In that case, the computer system was found not to be ordinarily available for the purposes of s 17. The Full Court did note there might be cases where a computer system was ordinarily available, even if a new computer program were required, including whether an agency ‘…might routinely commission or retain staff to produce new computer programs of the necessary kind’.[3]

As an example, in ‘ANN’ and Comcare (Freedom of Information) [2024] AICmr 196, the evidence showed that to produce a written document, the agency would have been required to write a specific Structured Query Language (SQL) query to extract data from the relevant database, which would take one business day to complete. A delegate of the Australian Information Commissioner found that such work did not fall outside the course of the agency’s ordinary operations such that the computer or equipment could not be considered ‘ordinarily available’. This is because:

• no other equipment was required to generate the SQL query and the equipment and technical expertise already existed within the agency, and
• the creation of the SQL query was relatively routine and simple, and not so involved that it was not ‘ordinarily available’.

Legislation restricting how information may be used could be relevant to whether a computer system was ‘ordinarily available’. In Neilson and Secretary, Services Australia (Freedom of Information) [2020] AATA 1435, the evidence showed that the agency was prevented by rules issued under the National Health Act 1953 (Cth) to produce the relevant document using their existing computer system. The evidence further showed that a new program would need to be written to comply with the relevant request. On that basis, that AAT was satisfied that a written document could not be produced using a computer or other equipment that was ordinarily available to the agency.[4]

Substantially and unreasonably divert the resources of the agency

If the factors under s 17(1) are satisfied, an agency must then consider s 17(2) and whether the production of such a document would substantially and unreasonably divert the resources of the agency from its other operations.

If an agency is considering refusal in accordance with s 17(2), a request consultation process will need to be undertaken.

Agencies may first wish to informally engage with the applicant to clarify the request and suggest ways the request can be revised, so that it does not substantially and unreasonably divert the agency’s resources from its other operations. Alternatively, if the practical refusal reason is not resolved via informal consultation, then a formal consultation under s 24AB of the FOI Act may be required (see paragraph 3.241 of the FOI Guidelines).

[1] Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67, at [43]

[2] Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67, at [48]

[3] Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67, at [49]

[4] ‘ANN’ and Comcare (Freedom of Information) [2024] AICmr 196, at [32]-[34]