FOI and third party review rights

Agencies that are subject to freedom of information (FOI) legislation, in whatever jurisdiction, are continuously required to balance the competing interests of the agency, the person making the FOI request and third parties whose information might be disclosed. This balancing act becomes even more difficult when third party appeal rights are exercised.

This article discusses when those appeal rights might arise and the approach that, in our experience, is most effective for dealing with them. By way of illustration, we refer to the position under Victorian and Commonwealth law.

FOI and third party notifications

In recent times, we have seen an increasing number of FOI cases involving applications brought by third parties. These arise after an agency makes a decision to grant access to a document which concerns the affairs of a third party (personal, commercial or otherwise) and the third party (not the person making the FOI request) seeks a review of that decision. This situation is often referred to as a ‘reverse FOI’.

Reverse FOIs often arise where a document contains information about a third party that is of a personal, commercial or financial nature which it considers unreasonable to disclose (see sections 33 and 34 of the Freedom of Information Act 1982 (Vic) (Victorian Act) and sections 27 and 27A of the Freedom of Information Act 1982 (Cth) (Commonwealth Act)). In the Commonwealth jurisdiction, it can also occur where a decision is made to disclose information affecting Commonwealth and State relations (see section 26A of the Commonwealth Act).

In Victoria, agencies are not obliged to consult with affected third parties before making a decision to grant access to documents which contain information of a personal nature. It is sufficient, once such a decision is made, for the agency to notify the affected third party of its decision and of their appeal rights (see section 33(3) of the Victorian Act). Where a document contains information of a business, commercial or financial nature, however, an agency is required to consult with the third party prior to deciding whether to release the document (see section 34(3) of the Victorian Act).

In both cases, a third party has a right to appeal the agency’s decision to the Victorian Civil and Administrative Tribunal (VCAT) (see sections 50(3) and (3A) of the Victorian Act).

The position for agencies operating under the Commonwealth Act is slightly different. Under the Commonwealth Act, where a request seeks access to documents containing information of a personal, commercial or financial nature, agencies are required to consult with third parties prior to a decision being made (see sections 27 and 27A of the Commonwealth Act).

In those cases, application for review of a decision to grant access to such documents can be made to the Information Commissioner at first instance (see section 54M of the Commonwealth Act). If the third party is still dissatisfied, they can appeal to the Administrative Appeals Tribunal (AAT) (see section 57A of the Commonwealth Act).

FOI requestors in third party appeals

In Victoria, where a third party appeals a decision to VCAT, the person making the FOI request is not automatically joined as a party to the appeal. They may, however, apply to be joined. Joining the person making the FOI request has its benefits, as it will often assist in the resolution of the dispute – the person making the request might, for example, decide that access to the relevant document is not required after all.

Where an FOI request is made under the Commonwealth Act, and a third party appeals a decision of an agency to release a document, the person making the FOI request is automatically made a party to the appeal (see section 60 of the Commonwealth Act). The AAT is therefore assisted from the outset by their involvement.

Issues for third party appeals

Third party appeals can throw up a number of issues that require careful consideration and management. There is little to no guidance to be taken from the authorities in this area, meaning that agencies need to consider practical, rather than legal, steps to address them.

‘Reverse FOIs’ often arise in the context of tricky situations concerning sensitive communications with the agency. Third parties are often unwilling to have such information released for fear of reprisal, or advantage to competitors.

Recently, we have seen ‘reverse FOIs’ arise where a decision was made to provide access to:

  • building plans to a neighbour, and the property owner opposed the release of those plans
  • a report regarding a registered building practitioner to a property owner, where the registered building practitioner opposed the release of the report
  • a contractor’s tender submission, where the contractor opposed the release of the submission
  • documents concerning complaints about a neighbour, where the person making the complaints opposed their release.

These cases have all highlighted the inherent difficulties with the third party appeal process, particularly the:

  • sensitive nature of the documents to which access is sought
  • protection of the identity of the persons involved – especially where the disclosure of their identity is the very thing that they are seeking to prevent
  • protection of the integrity of the documents – especially where they contain information relating to other persons who are not parties to the appeal.

No guidance exists, either in legislation or case law, as to whether the person making the FOI request should be informed of the third party’s identity or, equally, whether the third party should be informed of the requestor’s identity. This may be less problematic where the person making the FOI request is joined as a party. However, where they are not, agencies need to be mindful of their information privacy obligations, and take care to avoid the disclosure of identifying information unless directed to do so by VCAT or the AAT, or they obtain the consent of the person concerned.

Another ‘grey area’ of this process is whether the third party should be able to view the documents relating to them if it contains others’ personal or sensitive information and if so, whether any such information should first be redacted. While neither the Victorian Act nor Commonwealth Act govern this aspect, we think that it is prudent to adopt a cautious approach and redact any personal or otherwise sensitive information prior to inspection.

The role of the agency

The role of the agency in third party appeals is, to a certain extent, unclear. For example, it is not evident whether the agency takes the position of ‘defending’ its decision, or simply explaining it and assisting the review body with its enquiries. In our experience, the best approach is not to focus on taking sides or being overly defensive with respect to the outcome on appeal, but to keep in mind that the ultimate role of the agency is simply to comply with its obligations under the relevant FOI legislation and to provide full and frank information to the tribunal.

Conclusion: The careful approach

Third party appeal proceedings are undesirable for everyone involved and can involve a significant commitment of any agency’s resources. We suggest that agencies take care when they find themselves in these situations to avoid the unnecessary disclosure of sensitive information and to provide full and frank assistance to the tribunal in the process.