What is a 'document' under the FOI Act

The Freedom of Information Act 1991 (FOI Act) is purposefully broad when referring to a document. Section 4(1) defines it as ‘anything in which information is stored or from which information may be reproduced’.

This definition is intended to capture physical (paper) documents and records stored in other formats, such as digital records.

Examples of documents include:

Hardcopy and electronic letters, minutes, briefings, agendas, reports
Electronic databases and emails
DVDs and tape recordings
Photos, maps and plans
Text messages and social media
Microsoft Teams discussions
Information stored on electronic devices (such as phones and tablets)

When considering what constitutes a document under the FOI Act, the South Australian Civil and Administrative Tribunal (SACAT) case: State of South Australia (Department of the Premier and Cabinet) v Seven Network (Operations) Ltd [2021] SACAT 60 (28 July 2021) provides useful guidance.

Documents, information and records – the same or different?

The terms documents, information and records are sometimes used interchangeably, however the FOI Act deliberately uses different terms.

A document is distinct from information and records and is to be understood according to its ordinary meaning.

A document is a container or receptacle that holds information, not the information itself. It is typically:
- a physically discrete item (for example a report, letter or file) or
- an electronic record with clear boundaries (for example a file with a start and end, defined by software metadata such as title, author, date).

A document can usually be distinguished by its topic, purpose, author and/or creation date.

Information is the content within the container or receptable.
A record provides evidence of an activity that has occurred or a decision that has been made. Sometimes, this can be an accumulation of documents.

For example, an email chain is authored by different people, at different times. Generally, this would be stored as one record (providing proof of the conversation) but is made up of several documents. As such, emails within email chains that include documents that do not meet the scope of an FOI application do not need to be processed.

These terms are not interchangeable, and interpreting ‘document’ to mean information alone would undermine the objects of the FOI Act. Section 3(b) confers ‘a legally enforceable right to be given access to documents held by government’, not just information.

‘Out-of-scope’ information in a document

There may be times where a single document contains both in-scope and out-of-scope information. Documents of this type must be processed wholly unless an agreement is reached with the applicant to allow for out-of-scope information to be removed or redacted.

The FOI Act does not provide agencies with the authority to amend a document to match only the parts that fall within the scope of the application. For example, using an extract of a document to fulfil the scope of the application or redacting information in a document considered ‘out-of-scope’. Redaction is only allowed where the information is covered by an exemption clause under Schedule 1 of the FOI Act.

Refusal to give access to parts of a document without properly assessing it against the 19 exemption clauses is not authorised by section 20 of the FOI Act (Refusal of access).

Where an agency incorrectly identifies only part of a document (an extract) as in-scope or excludes out-of-scope information from consideration altogether, the determination is legally flawed and cannot be considered valid under section 19 (Determination of applications). In such cases, the Ombudsman at review, may correct the agency’s misidentification of the document.

Databases and system information

Section 4(5) of the FOI Act states:

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.

To satisfy section 4(5) it is acceptable to generate a document to contain the information within scope of the application. You don’t need to provide the entire 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 with the applicant.

Metadata

Sometimes the scope of an FOI application may include a request for metadata. Noting the requirements of section 4(5) of the FOI Act, it may be appropriate to generate a report to provide the metadata in scope.

It may be helpful to communicate with the applicant to establish what metadata is in scope, for example document creation, modification, registration dates, audit histories, version histories or other system information. Consideration of forms of access should also be considered, pursuant to section 22 of the FOI Act.

AI prompts and generated outputs

Sections 4(1) and 4(5) described above are not narrow in their interpretation of what constitutes a document under FOI. Nor is section 4(4) in placing the responsibility on an agency to process a document if it has an immediate right of access to it. AI related material (such as prompts, training data, transcripts and other outputs) does not sit outside this remit and must be processed if found within scope of an FOI application.

While AI prompts and outputs should be considered as documents by default, it is important to assess, as part of good records management, if they are transitory (where its continuing value has ceased) and can be disposed of.

For example, where a transcript has been used to assist in drafting minutes, and the minutes are accepted as true and accurate, the transcript can be considered transitory and should be destroyed as per normal administrative practice. If the transcript is not destroyed, the transcript will fall within scope of an FOI application if relevant.

AI generated content, such as transcripts, are famously inaccurate and even something as small as a misplaced punctuation mark can affect the context of the information. Failure to review and accept a transcript as a true and accurate record may mean inaccurate transcripts are held by the agency and are provided to applicants through the FOI process.

Assessing whether an AI prompt or output has become transitory and can subsequently be destroyed must be undertaken as part of usual business practice (and good records management) and not in response to an FOI application. Documents must be considered within scope as at the date an FOI application is received. Destroying information held that is within scope, after this date, could be considered maladministration.