1 This application for access to documents has had a protracted history but the matter before me today is in narrow compass.

2 The respondent department in its 2003 annual report under the generic heading "Investment Facilitation and Attraction" advised that new investments facilitated and announced in the reporting year totalled $2,417m (expressed under the heading "2002/2003 Performance") and that jobs derived from those investments facilitated totalled 7,463.

3 Following the application for access by Ms Asher, protracted negotiations between the parties ensued but for the purposes of today's hearing a list of names and numbers has been provided by the respondent. It is common ground that the list broadly satisfies the applicant's revised request. The document consists of the names of some 135 entities with related jobs totalling 7,463.

4 The question before me today is whether the respondent can avail itself of the provisions of section 25A of the Freedom of Information Act ("the Act") in satisfying its obligations under section 34(3) to consult prior to any determination to be made pursuant to section 34(1). Whether or not the document in question would disclose information acquired by the respondent from a business undertaking with information relating to a business commercial or financial nature is not conceded by the applicant, but again, for today's purposes, any decision in that regard is not required.

5 Assuming the document answers the general nomenclature, it is exempt if disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage. (See s.34(1).

6 Section 34(3) of the Act provides that a particular undertaking must be notified that a request for access has been received. The view of the undertaking must be sought as to whether disclosure should occur and the undertaking should be informed of its right to make an application for review as provided by s.50(2)(e).

7 The respondent's case is that the consultation process envisaged by s.34(3) of the Act would involve a substantial and unreasonable diversion of its resources. Section 25A provides that an agency can refuse to grant access without having caused the processing of the request to be undertaken, if it is satisfied that the work involved in processing the request would substantially and unreasonably divert its resources from its other operations. S.25(2) sets out some categories that are to be considered; it is not necessary for me to repeat them but suffice to say those categories are not closed.

8 The Tribunal heard evidence from one of the departmental chief executive officers and from its FOI officer.

9 Mr Foskett (the CEO) emphasised how important was the attraction of investment to the State with its concomitant job creation. And that is beyond doubt. He also expressed some views about the confidentiality of communications between the parties, although it is hard to relate his fears in that regard to ex post facto transactions.

10 Mr McCabe, the FOI officer, set out in his evidence what in his experience was the most efficient methodology where consultation was required with business entities. He said he had considerable experience dealing with such matters.

11 The respondent's submissions are broadly as follows:

• Although the locating and collating of documents is not a difficult task, the consultation process will be.

• Of necessity there is a balance to be struck between access to documents and the need for the department to maintain confidentiality with the companies with which it does business.

• The departmental accounts are the subject of constant review by the Auditor General, and that is a factor to be taken into account when considering the unreasonable nature of the diversion of resources.

12 In relation to the question of whether the consultation process envisaged by Section 34(3) would substantially and unreasonably divert resources away from the department's functions, he makes the follows points:

• There are over one hundred entities involved.

• There is an internal division within the department between the FOI officer and the various case officers which would expand the consultation process.

• It is possible these internal consultations will be hindered by a change in personnel both within the department and within the particular entities.

• It is likely, once the entity receives notification, that it will need to refer the matter it to its legal officers and other executives thus giving rise to further delay and consultation.

• The department will have to collate the responses.

• The department's resources are finite and it only has two FOI officers.

• On Mr McCabe's evidence the process would require 5½ weeks full time work and 5½ weeks part-time to complete.

13 In relation to whether the diversion of resources would be unreasonable, Mr Niall made the following points:

• There is no public interest in the list. He submits that if there were, then the department would consider a higher allocation of resources. But if an applicant is just "fishing", that should be taken into account.

• In any event the outcomes of investment are best assessed on an aggregate basis.

• There is no evidence of wrongdoing

• Further transparency is guaranteed by the oversight provided by the Auditor General, and thus further inspection and inquiry by the applicant is unreasonable in the circumstances.

14 Let me say at the beginning that I am unimpressed by the arguments about the oversight of the Auditor-General. The Freedom of Information Act does not say that a document is exempt where it is a product of, or subject to audit by the Auditor-General. No doubt it is true that submissions of such a nature are of relevance when one is considering the possibility of invoking the public interest override contemplated in section 50(4) but that is not what is being sought here. I regard arguments that suggest that the presence of the Auditor General in his supervisory role means that section 25A can be invoked on the basis that the application for access is unreasonable, of questionable validity and further, a misconception of the purposes of the legislation. Nor is there any necessity that there be suggestions of wrongdoing in order to obtain access to the documents, although inferences of that nature would be the subject of proper consideration under section 50(4).

15 The submissions about the need for internal and external consultations are to my mind overstated in circumstances of this nature. Should the entities need to consult their own lawyers so be it; that is part of the process of normal business conduct.

16 I accept that the department's resources are finite but in my view it is unrealistic to suggest that other freedom of information applications will be delayed by this consultation processes and indeed, if that is the case, the inference one draws is that the department is under-resourced and not serious about its FOI obligations.

17 Mr McCabe's evidence, while no doubt a correct reflection of the excellent way in which he performs his quite onerous tasks, and a proper reflection of what his experience has led him to believe to be the most efficacious methodology, in my view overstates the task at hand. I have no doubt that his estimate of resources fits the task as he sees it, but the task is nowhere near as complicated as he makes it.

18 I do not accept that the methodology of consultation envisaged by him is necessary in the circumstances of this case, and in that regard I have put his evidence to one side. It follows that I am not satisfied that the diversion of necessary resources for the task is either substantial or unreasonable.

19 The consultation process in relation to documents relating to personal privacy is frequently invoked in this Tribunal with little attendant anxiety or fuss from litigants. Despite Mr Niall's spirited submissions to the contrary, I see no great difference between the notifications to be given under the Freedom of Information Act and the service of documents in the normal course of legal business. Corporate entities have a company secretary, each company has a registered office and service can be effected on that entity in the normal manner by certified mail. Where the parties are not corporate entities, the department will have some records, the telephone directory will provide some detail and if further doubts exist, the Registry of Business Names can be accessed. One again service can be effected by certified mail. What is required is a standard letter to each entity setting out the information in question that is sought to be released, that is, the name of the entity and the number of jobs involved and the letter must advise the entity of its rights of review.

20 It is my view that the respondent's application to avail itself of section 25A has failed. I direct that the letters in the settled form as agreed between counsel, must be despatched to the parties by certified mail as soon as practicable, but in any event no later than 22 July 2005.

21 The orders are as follows:

• The further hearing is listed at 10.00am on 15 September 2005 (2 days);

• No later than 22 July 2005 the respondent is to write to the undertakings as required by s.34(3) of the Freedom of Information Act 1982 in terms agreed by counsel;

• No later than 30 August 2005 the respondent is to make its decision pursuant to section 34(1) of the Act;

• The respondent is to use its best endeavours to preserve all responses to the letters despatched in accordance with these orders.