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 affirm the decision of the Department of Prime Minister and Cabinet (the Department) of 9 November 2021.

1. This decision discusses whether a practical refusal reason exists (ss 24, 24AA, and 24AB) in relation to the applicant's request for documents received or sent by the Prime Minister Scott Morrison, and, the Secretary Philip Gaetjens, regarding or mentioning "National Cabinet" between 13 April 2020 to 13 May 2020. It provides an example of a circumstance in which processing a broadly worded request for information or documents, in the absence of any context or detail as to their content or subject matter, could lead to a substantial and unreasonable diversion of an agency's resources.

1. On 29 September 2021, the applicant applied to the Department for access to:

... A copy of all internal departmental documentation (including but not limited to "memos", emails, letters, transcripts, meeting minutes, advice (policy and legal), general correspondence, etc) received or sent by the [then] Prime Minister Scott Morrison, and, the Secretary Philip Gaetjens, regarding or mentioning "National Cabinet" during the calendar period of 31 December 2019 to 13 May 2020 (inclusive).

2. In response to the applicant's request, the Department sent the applicant a request consultation notice (s 24AB) advising that it intended to refuse access to the documents requested on the basis that the work involved in processing the request, in its current form, would substantially and unreasonably divert the resources of the Department from its other operations (s 24AA(1)(a)(i)).
3. The applicant subsequently revised the scope of their request by narrowing the timeframe of their request to the period between 13 April 2020 and 13 May 2020.
4. The Department maintains that a practical refusal reason arises due to the broad scope of the request and the work required to process the request. The applicant disputes the Department's decision.
5. The issue to be decided in this Information Commissioner review (IC review) is whether the work involved in processing the applicant's request would substantially and unreasonably divert the resources of the Department from its other operations.
6. 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.[1]
7. In making my decision, I have had regard to the following:
   • the Department's decision and reasons for decision of 9 November 2021
   • evidence of sampling provided by the Department
   • the FOI Act[2]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[3] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[4] and
   • the parties' submissions.

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

1. Section 24 of the FOI Act sets out the requirements that an agency or Minister must establish before refusing 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.[5]

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

1. Before relying on a practical refusal reason to refuse a request, agencies and Ministers are required to undertake a 'request consultation process' in accordance with s 24AB of the FOI Act.[6]
2. The agency must notify the applicant 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)).
3. In summary, the applicant alleged that the Department failed to take reasonable steps to assist them in narrowing the scope of their request. In particular, the applicant contends that:
   • the Department did not provide any options, suggestions, or data about the practical refusal reason other than what was already provided in writing
   • the Department did not provide any suggestions as to a timeframe that would be appropriate or likely to result in an effective request
   • the Department did not provide the applicant with guidance about what would be a request that the Department would be willing to accept, such as the average dates of the documents, or the period in which documents might be located
   • the Department did not provide any indication as to what would constitute a reasonable expenditure of its resources in order to guide the applicant to narrow the scope in a way that would be effective.
4. I have reviewed the correspondence between the applicant and the Department. It is apparent that during the request consultation process, the Department took steps to assist the applicant to revise their request by liaising with them, suggesting amendments to the scope, and clarifying the scope of the request. In particular, suggestions were made for the applicant to limit the scope of their request to documents relating only to COVID-19 or limiting the timeframe of the request.
5. Additionally, the Department also explained to the applicant that its searches identified 1992 documents that may be relevant to the applicant's request and that it estimated that it would take over 248 hours to process the request. The Department also explained that its estimate was based on an assumption that each document consists of only one page and an estimated eight third parties who may need to be consulted.
6. The Department also explained that it had engaged with the applicant by email and telephone on 29 October 2021, 31 October 2021 and 1 November 2021 in order to assist them in narrowing the scope of their request. The Department further noted that it had advised the applicant that a practical refusal reason may still exist even if the applicant limits their request to a one month period.
7. Having regard to the information provided by the Department during its request consultation process, I consider that the Department provided adequate information to assist the applicant to narrow the scope of their request. Accordingly, I find that a valid request consultation process was undertaken.
8. I will now proceed to determine whether I am 'satisfied' that the work involved in processing the applicant's request would 'substantially divert' the resources of the Department from its other operations.

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

1. In determining whether a practical refusal reason exists for the purposes of s 24AA(1)(a)(i) I must first consider whether I am satisfied that the diversion of the Department'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'.[7]
2. 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.[8]

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

1. In its reasons for its decision, the Department explained that following the receipt of the applicant's revised request on 1 November 2021, it undertook a preliminary assessment and identified at least 1252 documents that were responsive to the request. The Department explained that it was unclear how many of those documents contained additional documents embedded in them.
2. The Department explained that in processing the applicant's request, it would also need to undertake the following tasks:
   • examining the documents
   • consulting with any third parties
   • deciding whether to grant, refuse or defer access
   • redacting exempt material and
   • preparing and notifying the decision
3. The Department initially did not undertake a sampling exercise prior to providing an estimate that it would take more than 162 hours to process the applicant's revised request. The Department explained that this estimate is based on a conservative estimate of 1 page per document.
4. During this IC review, the Department subsequently undertook a sampling exercise and found that there were approximately 3031 documents that required initial triage, with approximately 2032 potentially relevant documents that would require detailed review.

1. The Department submits that the manual triage of the Parliamentary Document Management System (PDMS) and the Records Management Unit (RMU) search results alone had taken on average 90 minutes per 120 documents, or 1.3 minutes per document. On this basis, the Department estimates that it would take 21 hours to fully triage the documents identified in its searches.
2. With respect to the searches through its email systems, the Department estimates that it would take approximately 3 hours, or on average 5 seconds per email.
3. Accordingly, the Department estimates that it would take approximately 24 hours to undertake its searches and triage the documents.

1. The Department submits that it selected a representative sample of 45 documents with varying levels of complexity. Following its examination of the sample, the Department identified:
   • each document contains an average of 6.6 pages, which translates to an estimate of 13411 pages that is potentially relevant to the applicant's revised request
   • there are seven exemptions that may be relevant, including ss 33 (damage to national security, defence or international relations), 34 (Cabinet documents), 47B (Commonwealth-State relations), 47C (deliberative processes), 47E(d) operations of an agency), 47F (personal privacy) and 47G (business information) of the FOI Act, and
   • at least 30 third parties may require consultation.
2. In light of the above information, the Department provided the following updated estimates for the processing of the applicant's revised request:

Estimate hours (based on 2032 potentially relevant documents)

24 hours (50 minutes per consultation, with 30 third parties)

Application of exemptions, preparing an edited copy

17 hours for the task of preparing a schedule (at 30 seconds per document), and 24 hours to prepare a final decision, totaling 41 hours

1. The Department contends that if it were required to process the applicant's revised request, its estimate of the time required to undertake this task would clearly demonstrate a substantial diversion of its resources for the purposes of s 24AA(1)(a)(i) of the FOI Act.
2. The Department also provided a sample of the documents that it examined for the purpose of the sampling exercise. Based on my consideration of the sample, I accept the Department's submission that the exemptions that it identified are relevant in this case. Further, given the volume of the documents that were responsive to the applicant's revised request, I accept that a smaller sample size for the purpose of the sampling exercise is appropriate in this case.
3. Although the applicant has revised the scope of their request, I accept the Department's contention that the request remains broad, resulting in a significant volume of documents falling within its scope. Based on my consideration of the evidence provided by the Department, I consider the Department's estimates to be reasonable, and that processing the applicant's request would involve a substantial diversion of the Department's resources.

Whether the work involved in processing the request would unreasonably divert the resources of the Department from its other operations

1. The Department maintains that processing the request would unreasonably divert its resources from its other operations for the following reasons:
   • although it is a large agency, its primary purpose is to provide support and advice to the Prime Minister of Australia, the Cabinet, portfolio Ministers and Assistant Ministers on all Commonwealth priorities of any subject matter
   • only a small number of its staff are skilled in FOI processing, and these officers also perform corporate support functions, property management and maintenance in addition to functions relating to FOI and information processing
   • to process the applicant's revised request would take over 190 days or 38 weeks for one dedicated full-time officer to process the request
   • processing a substantial and voluminous FOI request such as the applicant's revised request would unreasonably divert the Department's resources away from its primary priority of ensuring positive outcomes for all Australians
   • the documents that are the subject of the applicant's revised request are located within a specialist system which, for security reasons, can only be accessed by a small number of staff within the Department's Cabinet Division
   • while there is a significant public interest in the National Cabinet generally, critical documents covering the requested period have already been published on the Department's disclosure log, and
   • there is also a significant public interest in ensuring the Department is able to sufficiently undertake its duties of supporting the Prime Minister, Cabinet, portfolio Ministers and Assistant Ministers in performing their functions, and the processing of voluminous FOI requests would impact the Department's ability to discharge its ordinary functions.
2. The Department also explained that a large amount of information regarding the National Cabinet for the requested time period has already been released. Similarly, the Department submits that the applicant has not been significantly personally affected by matters pertaining to the documents sought.
3. In response, the applicant contends that if the subject matter of their request was popular, that should make it easier for the Department to dedicate resources to the request.
4. I have considered the parties' submissions, and I do not accept the applicant's contention that given the Department had received FOI requests pertaining to the same subject matter, the Department ought to dedicate additional resources to process the applicant's request. The question of whether processing the request would involve an unreasonable diversion of the Department's resources requires a consideration of whether the work involved is unreasonably burdensome, such that it might undermine the discharge of the Department's normal functions.[9]
5. Having regard to the reasons provided by the Department above at [33], I accept that the applicant's revised request is extremely broad and lacks specificity, as evidenced by the volume of documents that the Department identified as being responsive to the request. Further, I also accept that although there is a significant public interest in the documents sought, some of this public interest is likely to have been diminished following the publication of documents pertaining to the same or similar subject matter by the Department on its disclosure log.
6. Although the Department has substantial resources and a dedicated FOI team to undertake FOI processing, I accept that processing a request of this size and volume would unreasonably divert the resources of the Department from its other operations.

1. For the reasons set out above, I find that the Department has established that a practical refusal reason exists for the purposes of s 24(1)(b) of the FOI Act. Accordingly, the Department was authorised under s 24(1)(b) of the FOI Act to refuse access to the documents in accordance with the request.

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.[10]

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.[11]

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'.[12] 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'.[13]

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'.[14]

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.[15]

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.

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

[3] 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).

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

[6] It is only if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists that they may refuse access to the document.

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

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

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

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

[13] 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).

[14] 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).

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