**Decision and reasons for decision of Justin Lodge, Acting 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**

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 eSafety Commissioner (eSafety) of 3 July 2024. In considering eSafety's indication that it no longer maintains that processing the applicant's revised request would amount to a substantial and unreasonable diversion of eSafety's resources from its other operations, I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days[1] of this decision, eSafety must process the applicant's request and notify the applicant of its decision in accordance with s 26 of the FOI Act, and must also advise whether it has fully implemented my decision.

1. This decision sets aside eSafety's practical refusal decision on the basis that eSafety no longer maintains a practical refusal reason exists.

1. On 20 May 2023, the applicant[2] made a two part request to eSafety which can be broadly summarised as seeking access to:
   • various types of specified correspondence between Julie Inman Grant and Toby Allan Dagg mentioning certain terms for a specified period of 12 months (Part 1), and
   • daily reports and emails associated with them which were compiled by a meltwater application showing the number of social media posts mentioning certain terms from the last 60 days (Part 2).
2. On 7 June 2024, eSafety 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 eSafety from its other operations.
3. On 24 June 2024, the applicant responded revising the scope of Part 1 of their request by narrowing the date range by six months.
4. On 3 July 2024, eSafety 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 eSafety's other operations.
5. On 4 July 2024, the applicant sought IC review of eSafety's decision under s 54L of the FOI Act.
6. During the course of the IC review, eSafety released documents relating to Part 2 of the applicant's request through administrative access arrangements. The applicant subsequently agreed to narrow the scope of this IC review to documents relating to Part 1 of the request. The applicant also agreed to further revise Part 1 of the request by narrowing the date range to a period of four months, and only requesting specified emails. Subsequently, eSafety indicated that it no longer maintains that processing the applicant's revised request would amount to a substantial and unreasonable diversion of its 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, eSafety 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. Accordingly, eSafety must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

Acting 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

Whether a practical refusal reason exists (ss 24 and 24AA)

Section 24 of the FOI Act enables an agency or Minister to refuse access to a document where the agency has undertaken a request consultation process in accordance with s 24AB of the FOI Act, and after that process the agency or Minister is satisfied that the practical refusal reason still exists.

Subparagraph 24AA(1)(a) of the FOI Act lists the following practical refusal reason:

(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:

(i) in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations; or

(ii) in the case of a Minister--would substantially and unreasonably interfere with the performance of the Minister's functions;

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.

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

[2] The request was made by a journalist at SkyNews. In their IC review application, and in correspondence during the IC review dated 25 July 2024, they advised that Australia News Channel Pty Ltd is the FOI and IC review applicant.