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 deemed decision of the Department of Home Affairs (the Department). I substitute my decision that a practical refusal reason does not exist. The Department must process the applicant's request and notify the applicant of its decision.
2. Within 30 days of this decision, the Department 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 relating to their employment with the Australian Border Force (ABF). It finds that the Department has not met its onus to demonstrate that a practical refusal reason exists; in particular, the Department did not meet the consultation requirements of s 24AB and did not justify that the request was substantial in failing to provide estimates that appropriately reflected the scope of the request.

1. In summary, the applicant requested certain information relating to their employment with the ABF. It focuses on their Employment Suitability Clearance (ESC) and one particular file during a particular time period (1 October 2017 to 26 November 2017). Further details of the request and revisions are in Annexure A.
2. The Department maintains that a practical refusal reason exists.
3. The applicant disputes the Department's decision. In summary, the applicant submitted:
   • The Department has rejected their request on the basis of a practical refusal reason, despite the applicant revising their requests multiple times.
   • The request includes only a 39 working day period across October/November 2017 and focuses solely on their ESC and one particular official file. They were not at work during that period, yet somehow the Department initially identified over 2000 potentially relevant documents.
   • In July 2021 the Department wrote to the applicant offering two lists of documents they considered suitable for release. The applicant selected only a portion of those documents, yet the Department still refused the request.
4. 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 unreasonable divert the resources of the Department from its other operations.
5. 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]
6. In making my decision, I have had regard to the following:
   • the Department's purported decision and purported internal review decision and reasons for those purported decisions of 23 April and 10 September 2021 respectively
   • 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 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.[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. I have reviewed the correspondence between the applicant and the Department during the consultation period. The Department sent the request consultation notice to the applicant on 5 March 2021. In my view the notice did not meet the requirements of s 24AB at that time because the notice did not make recommendations for how the applicant could revise the request to remove the practical refusal reason, or include the name and contact details of a contact person as required by s 24AB(2). In my view the Department did not take reasonable steps to help the applicant revise the request so that the practical refusal reason no longer exists (s 24AB(3)).
4. Subsequently, during the internal review process, the Department undertook further consultation with the applicant about the scope of the request:
   • On 6 July 2021, the Department provided the applicant with two lists of documents it had identified as possibly falling within scope. It identified a contact person and requested the applicant review these lists and identify any documents they wish to access.
   • On 13 July 2021, the applicant replied, identifying 73 IP&S folders and 5 documents from the IP&S network drive. Further details of the applicant's response is set out in Annexure A.
5. During the IC review, the applicant was given a further opportunity to revise the scope of their request by confirming they only seek the documents they identified in their response of 13 July 2021, and excluding 'briefing pack' documents which the Department advised would assist in further reducing the processing time. On 17 June 2024, the applicant agreed to revise the scope of the request to limit the scope as requested by the Department and to exclude the 'briefing pack'. However, the Department considered that the revised request did not remove the practical refusal reason.
6. As noted in previous decisions[7], 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. However, in this case, I do not consider the Department has done so. In particular I do not consider that the Department has taken reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
7. As the applicant noted, they have sought to revise their request in accordance with the Department's suggestions on multiple occasions. In my view, it would have been reasonable in the circumstances for the Department to advise the applicant what would be a reasonable request in the circumstances, and then, to process the request when the applicant agreed to revise their request in accordance with their suggestions.[8]
8. As noted in previous IC review decisions and the FOI Guidelines, failure to adhere to the requirements under s 24AB would amount to a procedural defect and may invalidate the practical refusal decision.[9] In any case, as set out below, I am not 'satisfied' that the Department has met its onus to demonstrate 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'.[10] 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.[11]

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

1. As noted above and in Annexure A, the applicant revised the scope of their request (at the Department's suggestion) by removing the 'briefing packs' from scope.
2. The Department submitted that the removal of the briefing pack documents reduced the number of pages of documents within the scope of the request from 3685 to a minimum of 2334 pages[12].
3. In light of the above information, the Department provided the following updated estimates for the processing of the applicant's revised request:

21.4 hours (based on the estimation of 17 minutes per folder)

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 demonstrate a substantial diversion of its resources for the purposes of s 24AA(1)(a)(i) of the FOI Act.
2. The Department undertook sampling in response to the internal review decision and the IC review. The Department advised:
   • the sampling undertaken in response to the internal review request involved reviewing the 76 folders identified by the applicant in response to the internal review request
   • counting the number of pages (including attachments) in each folder
   • determining whether the documents in each folder would require conversion into PDF (that is, whether they are in Outlook or Word format)
   • reviewing the documents to determine the extent to which the documents would need to be edited to remove exempt or irrelevant material.
3. The Department also advised it reviewed 15 of the 76 folders selected by the applicant to determine whether these folders contained any documents that were outside the scope of the request, noting that the applicant had indicated that they do not require access to documents that had previously been supplied to them. The Department advised this review established that the majority of documents in the folders were within scope.
4. The Department did not provide an updated sample after the applicant revised their request by removing 'briefing packs'.

The submissions and evidence provided by the Department do not substantiate that its estimates for items 1 and 2 appropriately reflect the scope of the request

1. Based on the available information I am not satisfied the Department's submissions and evidence substantiate its estimate of the processing time, in so far as it does not appropriately reflect the scope of the request.
2. This is because:

• In relation to item 1, the Department has not provided a sufficient explanation or evidence to substantiate why it would take 17 minutes per folder to convert documents into an editable format, given that the folders include documents of varying formats and sizes. In particular:

• − A small number of folders do not require conversion because 1 folder contains no documents and 4 folders contain documents in a PDF format.
  • − 29 folders contain Microsoft Word documents, so converting them to a PDF format should be relatively quick and easy.
  • − Many of the documents in the folders are not lengthy. For instance, 32 of the 76 folders contain documents which are 5 pages or less, and 53 contain documents which are 10 pages or less.
    • In relation to item 2, the Department calculated its estimate of the examination time on a per page basis. Based on the available information I am not satisfied that the Department has correctly calculated the number of pages within scope because:
  • − There was at least one significant difference between the page count set out in the excel spreadsheet evidencing the Department's initial review of the documents selected by the applicant (initial review document) and its 'further sampling' spreadsheet. The initial review document notes that a folder (ref 31021) contains a document that is 32 pages long and has 829 pages of attachments, whereas the 'further sampling' spreadsheet says it is 601 pages long. While that document was ultimately removed from scope by the applicant, this raises questions about whether the Department has correctly calculated the number of pages within scope.
  • − While the Department noted the majority of the documents in the folders are within scope of the request, its sampling does not support this.[14] According to its sampling, several of the folders, including a folder that contains 676 pages, include draft correspondence the applicant would have received in final form or correspondence with the applicant. Noting that the applicant is not seeking documents that have been provided to them, it appears at least some of this material may be out of scope.
  • − During the IC review, the Department initially included documents within scope of the request which the applicant had excluded. The Department noted that the amount of time to process the request is in part based on the inclusion of the voluminous 'briefing pack', which contains documents sent to the applicant or originating from them.
  • − Prior to the applicant excluding the 'briefing pack', 4 attachments between 600 and 800 pages in length comprised most of the pages in scope.[15] The applicant revised their request to remove the 'briefing pack' from scope after the Department advised they consist 'of over 600 pages of documents' and are 'included in multiple folders selected by the applicant'. And yet the removal of those documents from scope, did not remove the practical refusal reason. Apart from one folder (Ref 31021), the Department did not advise which of the 'multiple folders' contained the 'briefing pack', or how this impacted the length of the specific documents in scope.

3. For the above reasons, I am not satisfied that the Department's estimates of items 1 and 2 appropriately reflect the scope of the request. I consider the Department has failed to discharge its onus of establishing that the decision is justified.
4. 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.

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

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

Chronology - The request and summary of correspondence about the scope of the request

I am seeking the following information relating to my employment with the Australian Border Force covering the period July 2017 to November 2017.

I am seeking all documents, records, files and the like, both hard copy or electronic that contain my name during the period July 2017 to November 2017, and could be in the form of human resource (HR) records, emails, instant messaging, text messages, videos, photography, recordings, file notes, reports, invoices, spreadsheets, statutory declarations and complaints of any form -

• All records bearing my name that relate in any way to my Employment Suitability Clearance (ESC) or generated by the ESC Team

In response to clarification sought by the Department, the applicant provided clarification and confirmed that 'Full disclosure of I&PS file ... should also be included in this application'.

The applicant revised their request in response to the request consultation notice

...I am seeking the following information relating to my employment with the Australian Border Force covering the period 1 October 2017 to 26 November 2017.

All documents, records, files and the like, both hard copy or electronic that contain

my name during the period 1 October 2017 to 26 November 2017, and could be in the form of: human resource (HR) records, emails, instant messaging, text messages,

videos, photography, recordings, file notes, reports, invoices, spreadsheets, statutory declarations and complaints of any form that relate in any way to my Employment Suitability Clearance (ESC) or were generated by and of the ABF ESC Team and parent management.

Those records are likely to be in my personal ESC file or held elsewhere in the

parent area of the ESC Team. Full disclosure of I&PS file ... should also be included in this application.

The Department made its original decision that a practical refusal applies.

The Department provided the applicant with two lists of documents it had identified as possibly falling within scope. It requested the applicant review these lists and identify any documents they wish to access.

The applicant replied by identifying 73 IP&S folders and 5 documents from the IP&S network drive. However, the applicant considered that the list did not include all records related to their I&PS file. The applicant also noted that they had made it clear that they do not require documents already supplied to them.

In their submission to the OAIC the Department said:

We remain willing, however, to consider a revised scope from the applicant that would enable the request to be processed. We note that (as indicated in paragraph 11 above), the removal of some or all of the 'briefing pack' documents from the scope of the request, the limitation of the request to the 76 folders selected by the applicant (in addition to the 8 documents from the network folders and the 13 documents relating to his ESC) would significantly reduce the size of the request and associated processing time.

The applicant confirmed they will proceed on the basis that they continue to seek access to the documents highlighted in the 2 lists provided by the Department, and will exclude the briefing packs.

However, in response to an OAIC direction, the Department continues to maintain a practical refusal applies.

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.[16]

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.[17]

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'.[18] 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'.[19]

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'.[20]

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.[21]

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.

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 B.

[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 B.

[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, for example, 'AIG' and Australian Federal Police (Freedom of information) [2024] AICmr 52 at [34], and 'AVC' and Civil Aviation Safety Authority (Freedom of information) [2025] AICmr 67 (15 April 2025).

[8] See 'AP' and Department of Human Services [2013] AICmr 78 [21]-[25]; Maria Jockel and Department of Immigration and Border Protection [2015] AICmr 70 [31].

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

[12] The Department advised this does not include the number of pages contained in certain documents. The eight documents selected by the applicant from 'list 2', the 13 documents relating to the applicant's Employment Suitability Clearance, and related case notes held on the Siebel ESC