Decision and reasons for decision of Rocelle Ago

General Manager Freedom of Information Commissioner Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Freedom of Information - Respondent to process request following removal of practical refusal reason claim

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Health and Aged Care (the Department) of 7 March 2023. I substitute my decision that a practical refusal reason does not exist.
2. The Department must now process the applicant's request and notify the applicant of its decision no later than 30 days after it receives this decision.[1]

1. On 8 December 2022, the applicant applied to the Department for correspondence received and sent by 2 named individuals mentioning another named individual or a vaccine developer or an identified COVID-19 vaccine.
2. On 23 December 2022, the Department provided the applicant with a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(a)(i) of the FOI Act on the grounds that a practical refusal reason exists, as processing the request would substantially and unreasonably divert the resources of the Department from its other operations.
3. On 29 December 2022, the applicant revised the scope of their request.
4. On 17 January 2023, the Department refused the applicant's revised request under s 24AA(1)(a)(i) on the basis that processing the request would amount to a substantial and unreasonable diversion of resources from the Department's other operations. The applicant sought internal review of the Department's decision but the Department affirmed its original decision on 7 March 2023.
5. On 11 March 2023, the applicant sought IC review of the Department's decision under

s 54L of the FOI Act. 6. During the course of the IC review, the Department suggested a further revision to the applicant's request, which the applicant accepted. The revised request was for correspondence to and from 2 named individuals mentioning another named individual and an identified COVID-19 vaccine, excluding duplicates and email attachments. The Department has indicated that it no longer maintains that processing the applicant's revised request would amount to a substantial and unreasonable diversion of the Department's resources from its other operations (s 24AA(1)(a)(i)), and that it is able to process the revised request. 7. In an IC review of an access refusal decision, the Department bears the onus of establishing that their decision is justified or that I should give a decision adverse to the IC review applicant (s 55D(1)). 8. Based on the information before me, I am satisfied that the practical refusal reason no longer exists. 9. The Department must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

General Manager, Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

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[1] On the question of the processing deadlines that now apply, see Fletcher and Prime Minister of Australia [2013] AICmr 11 [33] - [38].