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

Freedom of Information - Whether a practical refusal reason exists - Whether work involved in processing the request would substantially and unreasonably interfere with the performance of the Agency's functions - (CTH) Freedom of Information Act 1982 ss 24, 24AA, and 24AB

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the internal review decision of the Civil Aviation Safety Authority (CASA) of 23 February 2021. I substitute my decision that a practical refusal reason does not exist. CASA must process the applicant's request and notify the applicant of its decision.
2. Within 30 days of this decision, CASA must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision discusses whether a practical refusal reason exists (ss 24, 24AA, and 24AB) in relation to the applicant's request for certain information and documents on file held by CASA relating to them. It finds that CASA has failed to discharge its onus of establishing that its decision is justified.

1. On 6 January 2021, the applicant applied to CASA for access to all information and documents it held relating to them.[1]
2. On 27 January 2021, CASA refused to give the applicant access to the documents sought in accordance with section 24(1)[b) of the Act on the basis that a practical refusal reason exists.
3. After the applicant sought internal review, CASA decided on 23 February 2021 to affirm its original decision to refuse access to the documents on the basis that a practical refusal reason exists.
4. In their IC review application, the applicant advised they disagreed with CASA's decision because:
   • CASA failed to take reasonable steps to assist them to revise the scope of their request so the practical refusal reason would no longer exist, and
   • when considering CASA's role to licence pilots, register aircraft, oversee aviation safety and promote safety awareness, it is reasonable that the applicant as a pilot and operator would be entitled to access their personal information from CASA.
5. During the Information Commissioner review (IC review), the Office of the Australian Information Commissioner (OAIC) directed CASA under s 55(2)(e)(ii) of the FOI Act to consult with the applicant to revise the scope of their request in order to attempt to resolve the practical refusal reason. As a result of this process, the applicant limited the date range of their request (1 February 2017 to 20 December 2020) and the subject matter to documents related to enforcement. They also excluded (in summary):
   • any communications between them and CASA
   • any documents filed in the Administrative Appeals Tribunal (AAT) by them or CASA
   • third-party information, such as names or identifying details.
6. The issue to be decided in this IC review is:
   • whether a request consultation process has been undertaken in accordance with

s 24AB of the FOI Act, and * if so whether the work involved in processing the applicant's request would substantially and unreasonably divert the resources of CASA from its other operations. 7. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[2] 8. In making my decision, I have had regard to the following: * CASA's decision and internal review decisions and reasons for those decisions of 27 January 2021 and 23 February 2021 respectively * the FOI Act[3] * the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and * the parties' submissions.

Whether CASA was entitled to refuse access for a practical refusal reason (s 24)

1. Section 24 of the FOI Act sets out the requirements an agency or Minister must satisfy to refuse access to documents because of a practical refusal reason. In deciding on this issue, I am required to consider:
   • whether a request consultation process has been undertaken in accordance with s 24AB of the FOI Act, and if so
   • whether I am satisfied that the work involved in processing the applicant's request would 'substantially' divert the resources of the agency from its other operations, and
   • whether I am also satisfied that the work involved in processing the applicant's request would 'unreasonably' divert the resources of the agency from its other operations.[6]

Whether a request consultation process was undertaken (s 24AB)

1. For a request consultation process to have been undertaken for the purposes of s 24(1)(a) of the FOI Act, the applicant must have been notified in accordance with s 24AB(2) of the FOI Act. If the applicant contacts the relevant contact person, then the agency must 'take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists' (s 24AB(3)). What constitutes 'reasonable steps' is informed by s 24AB(4)[7] and the FOI Guidelines,[8] but it must be considered on a case-by-case basis.[9]
2. I have reviewed the correspondence between the applicant and CASA during the consultation period. CASA made informal attempts to clarify the request on 8 January 2021.[10] CASA sent the request consultation notice on 22 January 2021. The applicant responded on 22 January 2021, revising the date range of their request.
3. In my view CASA did not take reasonable steps at that time because:

• CASA did not properly engage with the applicant to revise the applicant's request to remove the practical refusal reason. For example, while the request consultation notice made some recommendations, they were very general and did not reflect a proper consideration of the material the applicant was attempting to obtain.[11]
• Upon receiving the applicant's revised request (which was on the first day of the consultation period) CASA proceeded to make a practical refusal decision instead of adequately utilising the request consultation period to take the reasonable steps of:

• − contacting the applicant to explain why the revised request did not remove the practical refusal reason
• − seeking further information from the applicant about what was being sought to determine whether the CASA could provide the applicant with additional information to assist them to revise their request and remove the practical refusal reason, and

− making specific and targeted suggestions for what a reasonable request might be in the applicant's circumstances.[12]

1. During the IC review, the OAIC directed CASA to consult with the applicant to revise the scope of their request in order to attempt to resolve the practical refusal reason. The OAIC directed CASA to take specific steps including:

• explaining to the applicant why the revised request did not remove the practical refusal reason
  • seeking further information from the applicant about what is being sought to determine whether CASA could provide the applicant with additional information to assist them to revise their request to remove the practical refusal reason
  • making specific and targeted suggestions for what a reasonable request might be in the applicant's circumstances, and
  • ensuring that correspondence provided to the applicant by CASA to the above effect:

• − explains the practical refusal reason
  • − includes the name and contact details of a contact person with whom the applicant may consult with during the consultation period, and
  • − that the period of consultation is 14 days.

2. As noted in previous decisions[13], it is open to me to consider that the steps taken by an agency to consult with the applicant during an IC review cure their failure to take reasonable steps during the request consultation period.
3. I have considered the correspondence exchanged between CASA and the applicant after the date of the OAIC's direction. Having regard to the additional steps taken by CASA to consult with the applicant, I consider that CASA has now taken reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.

Whether a practical refusal reason exists (s 24AA(1)(a)(i))

1. In determining whether a practical refusal reason exists I must first consider whether I am satisfied that the diversion of CASA's resources from its other operations would be substantial. If I am satisfied that it would be, I must then consider if that substantial diversion would be 'unreasonable'.[14]
2. In answering this question I have had regard to the relevant mandatory factors listed in s 24AA(2) of the FOI Act but I have not considered the factors set out in s 24AA(3) of the FOI Act.[15]

Whether the work involved in processing the request would substantially divert the resources of CASA from its other operations

1. Initially CASA maintained that 10,487 documents, consisting of 9,000 emails and 1,487 other records, were in scope of the request, and processing it would take 300 hours.
2. However, after the OAIC directed CASA to undertake further consultation with the applicant about the scope of their request, the applicant revised their request (as set out above at [8]).
3. CASA advised that 662 documents are potentially in scope, consisting of approximately 2,230 pages, and provided the following estimates for processing the revised request:

• - (documents potentially in scope have already been identified and located)

1. In summary, the applicant maintains they have sufficiently narrowed the scope of their request and no practical refusal reason exists.

CASA has failed to provide sufficient evidence or particulars to support its estimate of the processing time is accurate

1. In my view, CASA has not sufficiently demonstrated its estimate of the processing time is accurate. In particular it has not provided sufficient evidence or particulars to substantiate the number of documents within scope of the request.
2. In summary CASA submitted:
   • It searched CASA's formal records repository (RMS) using the search terms:
     • − the applicant's name - which produced results of 587 records
     • − the applicant's aviation reference number, which produced an additional 75 documents not mentioning the applicant's name in the document title.
   • Based on a sample of 10% of those records:

• − 60% were emails with attachments * − the documents without attachments averaged 2 pages in length (1174 pages in total) although some of the documents are over 100 pages (for example, an FOI file involving the applicant had a document comprising half of the documents within the scope of the request) * − the attachments averaged 3 pages in length (1056 pages in total)

• CASA estimated '90% of those records involved enforcement as the subject matter and/or are [not] in the applicant's excluded category of documents'.

3. In my view, CASA has provided insufficient evidence or particulars to demonstrate that 90% of the records it identified via its searches involved enforcement as the subject matter and 'are [not] in the applicant's excluded category of documents'. This is because:

• While CASA advised it used sampling to estimate the percentage of documents within scope, CASA did not provide evidence of the sampling, or sufficient particulars to substantiate it had excluded documents which the applicant removed from their request, being:

• − any communications between the applicant and CASA
  • − any documents filed in the Administrative Appeals Tribunal (AAT) by them or CASA
  • − third-party information, such as names or identifying details.

• It is reasonable to assume that the removal of the above documents would significantly reduce the number of documents and pages within scope, as well as the time required for examination, consultation and decision-making. However, this is not reflected in CASA's submissions or estimates. CASA did not provide an explanation or contextual information to indicate why, in circumstances where there are apparently a significant number of enforcement related documents pertaining to the applicant, only a small proportion would involve communications between the applicant and CASA.
  • CASA advised an FOI file involving the applicant 'had a document comprising half of the documents within the scope of the request'. In my view, given that the applicant limited their revised request to 'documents related to Enforcement', documents relating to FOI requests made by the applicant, including the voluminous document referred to by CASA, would be out of scope of the request.

4. In these circumstances, I am not satisfied that the number of documents or pages in scope of the revised request, or the estimates made on a 'per page' basis, are accurate. Noting CASA's estimates for the most time intensive activities are contingent on the number of documents and pages within scope, I consider the time needed to process the request would be significantly less than what CASA has estimated.
5. For the above reasons, I consider CASA has failed to discharge its onus of establishing that the decision is justified.[17]

1. I find that CASA has not established that a practical refusal reason exists for the purposes of s 24(1)(b) of the FOI Act. Therefore, CASA was not authorised under s 24(1)(b) of the FOI Act to refuse access to the documents.

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

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Whether a request consultation process was undertaken (s 24AB)

(1) This section sets out what is a request consultation process for the purposes of section 24.

(2) The agency or Minister must give the applicant a written notice stating the following:

(a) an intention to refuse access to a document in accordance with a request;

(c) the name of an officer of the agency or member of staff of the Minister (the contact person) with whom the applicant may consult during a period;

(d) details of how the applicant may contact the contact person;

(e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.

(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.

(4) For the purposes of subsection (3), reasonable steps includes the following:

(a) giving the applicant a reasonable opportunity to consult with the contact person;

(b) providing the applicant with any information that would assist the applicant to revise the request.

(5) The contact person may, with the applicant's agreement, extend the consultation period by written notice to the applicant.

(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:

(c) indicate that the applicant does not wish to revise the request.

(7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if:

(a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or

(b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period. [emphasis in original]

Where an agency or minister is satisfied that a practical refusal reason exists, they must undertake a request consultation process with the applicant before making a decision to refuse the request (s 24AB).

The agency or minister must give the applicant a written notice that states:

• an intention to refuse access to a document in accordance with a request
• the practical refusal reason
• the name and contact details of an officer with whom the applicant may consult during the process, and details of how the applicant may contact them
• that the consultation period during which the applicant may consult the contact person is 14 days after the day the applicant is given the notice (s 24AB(2)).

Agencies and ministers are only obliged to undertake a request consultation process once for any particular request (s 24AB(9)), but they may choose to continue discussions with an applicant in order to refine a request that is still too large or vague.

If an applicant contacts a contact officer during the consultation period, the contact officer must take reasonable steps to help them revise the request so that the practical refusal reason no longer exists (s 24AB(3)). For example, a contact officer could provide a breakdown of the time estimated for each step of the process, explain the difficulties the agency will have in dealing with the request and suggest what would be a reasonable request in the circumstances.[18]

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;

Subsection 24AA(2) of the FOI Act lists matters which a decision maker must consider where relevant in deciding whether or not a practical refusal reason exists. It is a non-exhaustive list.

(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:

(a) any reasons that the applicant gives for requesting access; or

(b) the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or

(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.

As set out in 'ACW' and Australian National Maritime Museum [2023] AICmr 4 ('ACW'), a decision maker must consider the following 3 elements in determining the issue of whether a practical refusal reason exists for the purposes of s 24AA(1)(a)(i) of the FOI Act:

• First, I must determine whether a request consultation process has been undertaken in accordance with s 24AB of the FOI Act. In many cases, this element of the decision-making task may be dealt with briefly because it is clear that a relevant process has been validly conducted and no agreement as to validity arises between the parties to the IC review.
• Secondly, if I determine that a request consultation process has been validly undertaken, I must determine whether I am 'satisfied' that the work involved in processing the applicant's request (as revised, if at all, during the request consultation process) would 'substantially' divert the resources of the agency from its other operations.
• Thirdly, if I am satisfied of a substantial diversion of resources, I must determine whether I am also 'satisfied' that the work involved in processing the applicant's request would 'unreasonably' divert the resources of the agency from its other operations.[19]

To be 'satisfied' for the purposes of s 24(1) of the FOI Act that a practical refusal reason exists, a decision maker must 'feel' an 'actual persuasion' that the reason exists. They cannot be satisfied simply as a result of a 'mere mechanical comparison of probabilities independently of any belief in its reality'.[20] Moreover, a decision maker's 'satisfaction' as to the existence of a practical refusal reason cannot be arbitrary or capricious; it must be formed 'according to law and not humour'.[21]

A diversion of an agency's resources will be considered to be 'substantial' if the diversion can be characterised as 'real or of substance' rather than 'large'.[22]

The FOI Guidelines explain:

In deciding if a practical refusal reason exists, an agency or minister must have regard to the resources required to perform the following activities specified in s 24AA(2):

• identifying, locating or collating documents within the filing system of the agency or minister
• examining the documents
• deciding whether to grant, refuse or defer access
• consulting with other parties
• redacting exempt material from the documents
• making copies of documents
• notifying an interim or final decision to the applicant.

Other matters that may be relevant in deciding if a practical refusal reason exists include:

• the staffing resources available to an agency or minister for FOI processing
• whether the processing work requires the specialist attention of a minister or senior officer, or can only be undertaken by one or more specialist officers in an agency who have competing responsibilities
• the impact that processing a request may have on other work in an agency or minister's office, including FOI processing
• whether an applicant has cooperated in framing a request to reduce the processing workload
• whether there is a significant public interest in the documents requested
• other steps taken by an agency or minister to publish information of the kind requested by an applicant
• as to a request to a minister - other responsibilities of the minister and demands on the minister's time, and whether it is open to the minister to obtain assistance from an agency in processing the request.[23]

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 conta8ct the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] This is a summary of the initial request. Revisions to the request are outlined below at [8].

[3] Sections 24, 24AA, and 24AB as set out in Annexure A.

[4] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[6] See 'ACW' and Australian National Maritime Museum (Freedom of information) [2023] AICmr 4 at [10] as set out in Annexure A.

[9] Justin Warren and Department of Human Services (Freedom of information) [2019] AICmr 22 at [32].

[10] As noted in the original decision, CASA contacted the applicant to clarify the scope of the request on 8 January 2021.

[11] See Alcoa of Australia Limited and Australian Taxation Office (Freedom of information) [2024] AICmr 137 at [17].

[12] See Alcoa of Australia Limited and Australian Taxation Office (Freedom of information) [2024] AICmr 137 at [22] and the decisions cited in that decision. As stated in Alcoa of Australia Limited and Australian Taxation Office (Freedom of information) [2024] AICmr 137 at [22] '[t]he fact that an agency has received a revised request does not absolve that agency of its obligation to undertake 'reasonable steps' for the purposes of s 24AB(3) of the FOI Act.'

[13] See, for example, 'AIG' and Australian Federal Police (Freedom of information) [2024] AICmr 52 at [34].

[14] See 'ACW' and Australian National Maritime Museum (Freedom of information) [2023] AICmr 4 at [10] as set out in Annexure A.

[16] CASA advised each document discovered in an e-discovery process requires a manual assessment to be undertaken by CASA's freedom of information officer, in collaboration with the technical business unit, to identify whether it is within scope of the requests for access. For this review, consultation with CASA's litigation lawyers, and several representatives from the technical business unit would be required regarding the technical content of the documents retrieved and the nature of their sensitivity, and whether exemptions should be applied.

[17] Having reached this conclusion, there is no need for me to go on to consider whether the work involved in processing the applicant's request would 'unreasonably' divert the resources of the agency from its other operations.

[18] FOI Guidelines at [3.127], [3.129], [3.132], and [3.133].

[19] 'ACW' and Australian National Maritime Museum [2023] AICmr 4 at [10].

[20] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 (Dixon J).

[21] Federal Commissioner of Taxation v Bayly [1952] HCA 31; (1952) 86 CLR 506 at 510 (Williams J). See also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1997) 197 CLR 611 at [145] (Gummow J).

[22] See Langer and Telstra Corporation Ltd [2002] AATA 341 ('Langer') applied in Cambridge; Chief Executive Officer, Services Australia and (Freedom of information) [2021] AATA 1142 and Farrell; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 2390, noting that at the time of the decision in Langer, the reference to processing a request 'substantially and unreasonably' diverting the resources of an agency was contained in s 24 rather than s 24AA. However, there is nothing in the terms of s 24 as enacted at that time which would negate the application of the view reached by Forgie DP in the context of s 24AA(1).

[23] FOI Guidelines at [3.116] - [3.117] (footnote omitted).