Retaining a detailed account of all the places searched, both physical and electronic, will ensure your agency can explain what attempts were made to locate all relevant documents should the applicant question your agency’s search or raises a complaint with the Ombudsman SA under the Ombudsman Act 1972.

The time spent searching for and locating documents should also be recorded since an agency can charge the applicant for this time unless the applicant is entitled to a fee waiver or the agency chooses not to charge the applicant.

It is inappropriate to charge for costs associated with extensive searching due to poor recordkeeping.

Common places that agencies should search to locate documents include:

• records management systems and business systems
• computer drives and files – including personal drives and files if necessary
• computer discs and other portable storage devices including portable computers
• home and work cloud-based storage such as Google Drive, OneDrive and iCloud
• office desks, filing cabinets and compactus storage
• notepads, diaries and calendars
• audio and video recordings
• offsite storage locations
• State Records SA archival collection
• email accounts
• home computers where staff may be working from home
• government mobile devices, and personal mobile devices used for business purposes.

This list is not exhaustive. Documents that can be considered in scope of a FOI application come in many different formats and locations.

Section 4(5) of the FOI Act provides “where -

• (a) an agency holds information in computer storage; and
• (b) a particular document is capable of being produced by the computer on the basis of information so stored
• the agency is to be taken to hold that document”

The Act clearly extends to digital information and to documents which can be created from an existing database.

Section 8 of the Legislation Interpretation Act 2021 provides for the inclusion of digital materials. Where a person is required under an Act to produce information or a document kept by computer or other process, the person is required to produce or make available for inspection a document that reproduces the information in a form capable of being understood. Therefore, if the agency is providing access to information from a computer database to an applicant, the agency must ensure that it reproduces the information in a form that can be understood by the applicant.

Occasionally, the reproduction of information will be from multiple databases or requires the printing of a large amount of information. If this will unreasonably divert the agency’s resources, the agency should contact the applicant and discuss narrowing the scope of the application or discuss the alternative formats in which the information could be provided.

Creating new documents digitally

Although an agency is under no obligation to create a new document to satisfy an FOI application, sometimes it is easier to cut and paste the relevant information from several digital sources into a new document and provide this to the applicant. If this is the preferred approach by the agency, the agency should negotiate this with the applicant. When processing an FOI application, a record should be kept that documents the steps taken and consultation events with the applicant.

When an agency transfers a document into the custody of State Records for permanent storage, the agency remains the owner of the document and is considered to continue to possess the document for the purposes of the FOI Act. Therefore, the agency must include documents in the custody of State Records when undertaking searches in relation to FOI applications.

When records are transferred to State Records, agencies are required to give those records public access determinations to ensure that appropriate access is given.  A public access determination does one of three things:

• declares a record to be immediately open to public access
• declares a record to be open only after a certain period (e.g. open after 20 years)
• declares a record to be indefinitely closed.

Where an FOI request is made for a document in the custody of State Records which has an ‘open’ public access determination, an agency may refuse the application and direct the applicant to State Records to seek access because the document is already publicly available.

Where an FOI request is made for a document in the custody of State Records which has a ‘closed’ public access determination (either for a certain period or indefinitely) the agency must make a determination as to whether access to the documents is to be granted, in line with FOI legislation.

When an FOI applicant applies for access to documents of an agency that, after reasonable searches, are unable to be found, section 23(1) of the FOI Act requires an agency to notify the applicant in writing of its determination or if the agency does not hold the document/s.

Where the document requested is not held by the agency but is known to be held by another agency, consideration should be given to transferring the application in accordance with section 16(1) of the FOI Act. Before transferring an FOI application, the transfer should be discussed with the agency that will receive the application to ensure the decision to transfer is appropriate.

When an agency concludes that it does not hold a document, the agency must notify the applicant in writing and explain the searches, enquiries and considerations that were undertaken. If the document once existed but no longer does, such as documents were legally destroyed in accordance with a Records Disposal Schedule approved under the State Records Act 1997, this should be explained to the applicant.

State Record has developed a notice template for documents not found.