X and Department of Transport, Tourism and Sport

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 03 June 2015
• Case Outcome: The Senior Investigator found that the section 38 requirements were not applied correctly in this case and annulled the decision of the Department.
• Court: Information Commission
• Record Number: 150122
• Respondent: Department of Transport, Tourism and Sport

Whether the decision of the Department to grant a request to which section 38 of the FOI Act applies, involving access to documentation concerning Standard Communications PTY Ltd, was justified

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 2 October 2014 the original requester sought access, in the first instance, from the Department of Agriculture, Food and the Marine for;

"Copy all documentation touching upon and/or concerning any issue raised or represented as regards the safety and/or appropriateness emergency position indicating radio beacons (more commonly known as GME EPIRBs) manufactured by Standard Communications PTY Limited from January 2011 onwards."

The FOI request to which this review applies was initially submitted to the Department of Agriculture, Food and the Marine on 2 October 2014. Had the Department of Agriculture, Food and the Marine, as "the first-mentioned body" in receipt of the request, responded in a timely manner, the original request would have been considered under the provisions of the FOI Act 1997-2003 (the 1997 Act). However, due to a series of delays and other circumstances, the request was not considered (and acknowledged as received) by the second public body to whom it was eventually forwarded, until February 2015, and was considered under the FOI Act 2014, which came into effect on 14 October 2014.

The circumstances of this case are unusual and in the course of the review I identified several instances where the two public bodies involved contributed to a considerable delay in processing the FOI request by not complying with the statutory provisions of the 1997 Act and the FOI Act 2014.

The Department of Agriculture, Food and the Marine sought clarification on the original request but did not do so until 7 November 2014. Given that the Department of Agriculture, Food and the Marine had, effectively, not responded within the time provided for in section 8 of the 1997 Act, the original requester, had he been aware, would have been entitled to apply for an internal review on the basis of a deemed refusal of his original request (section 41(1) of the 1997 Act refers). However, the requester did not do so.

The Department of Agriculture, Food and the Marine then wrote to the original requester on 19 November 2014 and in so doing, concluded that it did not hold the requested records. The Department of Agriculture, Food and the Marine advised that the request was more appropriate to the Department of Transport, Tourism and Sport and stated that it would transfer the request to that Department. The request was transferred on 20 November 2014. In this regard, section 7 of the 1997 Act provides for a requester to receive notification and a summary of the various rights under the Act. The requester did not receive such a notification from the public body within 2 weeks of the receipt of an FOI request.

Section 7(3) of the 1997 Act
Section 7(3) of the 1997 Act provides;

"Where a request under this section is received by the head of a public body ("the head") and the record or records concerned is or are not held by the body ("the first-mentioned body") but, to the knowledge of the head, is or are held by one or more other public bodies, the head shall, as soon as may be, but not more than 2 weeks, after the receipt of the request, cause a copy of the request to be given to the head of the other body or, as the case may be, to the head of that one of the other bodies --

(a) whose functions...