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 reasonable steps were taken during the request consultation process - 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 internal review decision of Services Australia of 6 June 2022.

1. This decision discusses whether a practical refusal reason (ss 24, 24AA and 24AB) exists in relation to the applicant's request for documents held by Services Australia relating to them. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 6 April 2022, the applicant applied to Services Australia for access to copies of all documents and records that make reference to the applicant between 1 September 2017 and 5 April 2022 inclusive.[1]
2. The background to this IC review and the FOI request are set out at Annexure A.
3. Services Australia refused the applicant access to the requested documents on the basis that a practical refusal reason existed under s 24AA of the FOI Act, namely that the work involved in processing the request would substantially and unreasonably divert Services Australia's resources from its other operations.[2]
4. In their application for Information Commissioner review (IC review),[3] the applicant submitted that Services Australia had not responded to the applicant's request for assistance to revise their FOI request (as set out at Annexure A). I have taken the applicant's submissions to mean that they do not consider that Services Australia undertook an appropriate consultation process in accordance with s 24AB.
5. The applicant also requested that the Information Commissioner commence an investigation into specific actions taken by Services Australia.[4] It is outside my remit to conduct an investigation of the nature sought by the applicant and is not within the scope of this IC review.
6. The issues to be decided in this IC review are:
   • whether Services Australia has taken reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exist, such that a valid consultation process has been undertaken, and
   • whether the work involved in processing the applicant's request would substantially and unreasonably divert the resources of Services Australia 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.[5]
8. In making my decision, I have had regard to the following:
   • Services Australia's decision and reasons for decision of 5 May 2022
   • Services Australia's internal review decision and reasons for decision of 6 June 2022
   • the searches evidence provided by Services Australia
   • the FOI Act[6]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[8] and
   • the parties' submissions.

Whether Services Australia 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.[9]

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.[10]
2. The agency must notify the applicant in accordance with s 24AB(2). 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. As referred to at Annexure A, Services Australia initiated the request consultation process on 21 April 2022. The applicant responded on the same date indicating that they would be unable to revise their request unless Services Australia provided further information. Services Australia did not respond to the applicant before providing its decision on 5 May 2022. The applicant submitted to the Office of the Australian Information Commissioner (OAIC) that Services Australia failed to provide assistance to the applicant to revise their request. In correspondence sent to the applicant during the course of this IC review, Services Australia accepted that it ought to have made additional efforts to assist them to revise the scope of their request to remove the practical refusal reason.
4. During this IC review, the OAIC advised Services Australia, with reference to the evidence provided by the applicant, that it considered Services Australia had not taken reasonable steps to assist the applicant to revise their request so that practical refusal reason no longer existed. The OAIC requested that either Services Australia engage in a further consultation period with the applicant[11] or provide further submissions to the OAIC.
5. As noted in previous decisions,[12] it is open to me to consider that the steps taken by an agency to consult with the applicant during an IC review has cured their failure to take reasonable steps during the request consultation period.
6. I have considered the correspondence exchanged between Services Australia and the applicant after the date of the OAIC's request. Having regard to the additional steps taken by Services Australia to consult with the applicant, in particular providing seven potential revised scopes to remove the practical refusal reason, I am satisfied that it has taken significant and reasonable steps to assist the applicant to revise their request so that the practical refusal reason no longer exists. Accordingly, I find that a valid consultation process had been undertaken by Services Australia.
7. I will now proceed to determine whether I am 'satisfied' that the work involved in processing the applicant's request would 'substantially and unreasonably divert' the resources of Services Australia 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) of the FOI Act I must first consider whether I am satisfied that the diversion of Services Australia'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'.[13]
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.[14]

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

1. In its reasons for its internal review decision, Services Australia estimated that at least 3,257 documents (equalling 3,379 pages) were within the scope of the applicant's request.[15]
2. Services Australia provided the following estimates to process the applicant's request:

Estimate hours (based on 3,257 potentially relevant documents)

Redaction of material at 2 mins per page for 2182 pages

1. In their internal review decision Services Australia's decision maker advised the applicant that undertaking a sampling exercise would be unnecessary because even if the material is not complex, the volume of documents captured by the request is substantial and it would take one full-time officer in the agency at least 26 working days to process the request as it is currently framed.
2. In summary, Services Australia submitted:
   • the estimated number of hours is conservative because it excludes online records and audio call recordings[16] and documents that may be held by other business areas within Services Australia
   • the documents held within the scope of the applicant's request likely contain information regarding third-parties, Ministerial correspondence, sensitive medical documents, documents held by other Commonwealth agencies and material concerning Administrative Appeals Tribunal matters (some of which may be subject to legal professional privilege), and
   • Services Australia did not engage in any consultation, whether formal or informal, with third-parties in relation to the applicant's request.
3. Services Australia contends that if it were required to process the applicant's revised request, its estimated time required to undertake this task would clearly demonstrate a substantial diversion of its resources for the purposes of s 24AA(1)(a)(i).
4. In its consultation correspondence with the applicant, Services Australia advised that:
   • consultation with third-parties is undertaken to seek the views of those parties on the sensitivities associated with release
   • it does not agree that consultation with third-parties was likely to cause the Agency to identify unnecessary duplicates that it previously did not
   • consultation was unnecessary as a practical refusal reason existed without the need to add further consultation time, and
   • there is a public interest in making the correct and preferable decision that voluminous requests should be refused as Agency staff would be substantially diverted from important work involving other Agency customers who also require assistance.
5. In summary, the applicant submitted:
   • Services Australia failed to carry out a sampling exercise and made estimates based on searches they conducted only and made assumptions about the number of documents that could be found and time it would take to deliver the documents
   • the estimated time may include irrelevant and duplicate documents and the private information of their employees which is not required
   • Services Australia did not engage in any consultation, whether formal or informal, with third-parties in relation to the request, such consultation may have reduced duplicates, and impacted their estimated number of documents and time to retrieve them, and
   • Services Australia is one of Australia's largest agencies with a dedicated FOI team and many employees, tools and resources to assist them.
6. As is evident from previous decisions[17] and the FOI Guidelines[18], the OAIC generally expects that agencies will examine a representative sample and provide evidence of sampling to support their contention that a practical refusal reason exists. However, in this case, it is apparent from the content and length of the applicant's request that their request is extremely broad. It is several pages long and seeks 22 categories and 13 subcategories of documents and information generated over several years.
7. Noting this, and having reviewed the evidence before me and considered the parties' submissions, I am satisfied that the processing of the applicant's request would involve a substantial diversion of Services Australia's resources because:
   • I consider the time estimates for the number of documents to be reasonable and accurate estimates, because Services Australia provided specific and detailed information from relevant business areas regarding how it determined the estimated processing time
   • Services Australia provided searches evidence which supports its submission that there are a large number of documents in scope, the nature of such documents and where such documents are located
   • I consider the estimates of 1 minute per page for examination and 2 minutes per page for redaction of material to be at the lower end of the spectrum for these tasks
   • I accept Services Australia's submission that the time estimates are conservative given more documents may be held by other business areas and the estimates do not include tasks related to at least 58 online records or 55 audio call recordings, which Services Australia advised is in excess of 966 minutes total duration
   • I accept that, given the scope of the applicant's request, that Services Australia would need to consult with a significant number of third-parties in relation to the possible release of their information under the request which would have significant additional time imposts on Services Australia's staff, and
   • I consider that the scope of the applicant's request remains very broad, noting its length, that it seeks 22 categories and 13 subcategories of documents and information, the time period (which covers several years), and the number of documents identified by Services Australia.

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

1. In summary, Services Australia submitted that processing the request would be an unreasonable diversion of resources because:
   • an individual officer would be required to spend more than a week full-time to process the request
   • the documents requested are held by several business areas within the agency and would require specialist officers from each of those business areas to assist in collating and then identifying sensitivities in the documents
   • processing the applicant's request would divert resources from processing other FOI requests, noting the agency receives over 500 such request per month, and
   • the applicant was provided opportunity and assistance to revise their request, noting it is very broad in scope, but declined to do so.
2. Further, in its consultation correspondence with the applicant, Services Australia advised that:
   • processing the request requires particularised knowledge of the applicant's matters and the Agency cannot retrain the staff required to process the request within the statutory timeframes, and
   • there is limited public interest in the documents captured by the scope of the request. On the contrary, the documents ostensibly relate to the applicant's prior Agency matters.
3. In summary, the applicant submitted:

• the release of many of the documents in their request would be in the public interest, which Services Australia would have determined if it had carried out sampling
  • the Australian Government, its agencies, departments and contractors and associated third parties have an obligation to ensure the records they hold are correct in the national interest. The integrity of these records is paramount, as the government may rely on these to make informative decisions and many will be archived in accordance with the Archives Act 1983
  • if the documents were released they would:

i. promote open and revealing or substantiating that an agency (or member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. > > ii. promote discussion of public affairs, enhancing government accountability or contributing of positive and informed debate on issues of public importance and; > > iii. informing the public about the operation of agencies and, in particular their policies and practices for dealing with members of the public, ensuring effective oversight of the expenditure of public > > * Services Australia has increased the number of employees over the last two years, managing their duties and responsibilities is the responsibility of Services Australia to ensure FOI requests are managed and processed within the applicable statutory timelines.

4. The question of whether processing the request would involve an unreasonable diversion of Services Australia's resources requires a consideration of whether the work involved is unreasonable, such that it might undermine the discharge of Services Australia's normal functions.[19]
5. Before considering these matters, I am of the view that Services Australia's reference in its submissions above to it taking one officer more than a week full-time to process the applicant's request is an inadvertent error on its behalf. In its internal review decision it advised the applicant that it would take an individual officer over five weeks full-time to process the request. Given the estimated time (201.38 hours) the reference to five weeks appears to be the correct one.
6. I accept that the applicant's request is extremely broad, as evidenced by the volume of documents that Services Australia identified as being responsive to the request. Further, I also consider that the documents are personal in nature and accordingly there is a limited public interest in their disclosure.
7. Although Services Australia 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 Services Australia from its other operations.

1. I find that Department has established that a practical refusal reason exists for the purposes of s 24(1)(b) of the FOI Act because the work involved in processing the request would be a substantial and unreasonable diversion of Services Australia's resources. Services Australia 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

The applicant lodged a request for access to the following documents held by Services Australia referring to them.

'01 September 2017 up to and including 05 April 2021 amended to "01 September 2017 up to and including 05 April 2022" (and not 05 April 2021):

1. All Public Interest Certificate documents and records.

2. All Commonwealth documents and records Service Australia holds about me that records and documents my full name, preferred name, known by name, date of birth, place of birth, nationality, residency status, age, sex, material status, education level, addresses, phone numbers, parents, siblings, any recorded disabilities, medical conditions, number of children I have, languages spoken, and any recorded and documents criminal convictions, time spent in prison, time spent in a psychiatric institution, correction officer, last employer, reason for leaving last employment.

3. All electronic email documents and records published and shared with all other government departments, agencies that refer to and make reference to me. These documents and records should also include copies of all recorded file notes, annotations and opinions, scores, assessment date, reassessment date and other recorded details contained in these documents and records).

4. All of the following documents and records referring to Newstart and Jobseeker Assessments, Reassessments, Referrals and Reviews, conducted by Service Australia (formerly the Department of Human Services), Centerlink, Medicare, and other third party employment providers such as Employment Plus (Chatswood, North Ryde, (NSW), Benleigh (Qld) and Devonport (Tas) offices), APM Brookvale (NSW), Global Solutions (Fairfield, Cabramatta and their Head Office in NSW). These documents and records should include records of the outcomes of these assessments, all recorded file notes, all annotations, all opinions, all scores, all alerts, all incidents associated with these documents and records:

- All JSCIs (Job Seeker Capability Instruments) and Change of Circumstance Reassessments documents and records

- All ESAts documents and records

- All Job Capacity Assessments (JCA's) documents and records

- All Partial Capacity to Work (PCW) documents and records

- All Newstart and Jobseeker Assessments and Reassessments documents and records

- All Newstart and Job Seeker Initial screening documents and records

- All documents and records showing all details of Permissible Breaks, Personal Events, Qualifying Training Courses

- All documents and records of all Newstart and Job Seeker payment Suspensions, Cancellations and payment being placed on-hold, recorded reasons for these suspensions, cancellations, and payment being placed on hold.

- All Incident report documents and records (these documents and records must include all records of these incidents including warnings, severity level of incidents, who raised the incidents, date of incident, and all recorded details of the incidents including documented evidence to support each incident.)

- All documents and records of all Reviews, re-Reviews, assessments and re-assessments conducted by Service Australia's 'Personalised Services' team within the Multicultural and Tailored Services Branch, these documents and records must include the recorded outcomes of these reviews and all related assessments.

- All documents and records of Reviews, re-Reviews, assessments and re-assessments conducted by Service Australia in relation to single contact arrangements (such as 'How you can contact us').

- All Complaint documents and records (including external complaints) lodged with Services Australia by myself and by members of the public, employment service providers and other government agencies.

- All documents and records (including voice recordings) of all escalated complaints and feedback lodged with Service Australia by myself.

5. All unredacted medical records and documents (please include all recorded file notes, annotations, opinions, scores, alerts and other recorded details relating to these documents and records).

6. All unredacted Disability Assessments and re-assessment documents and records, (please include all recorded file notes, annotations, opinions, scores, alerts and other recorded details relating to these documents and records.)

7.All Documents and records of all medical exemptions granted by Services Australia and all recorded assessments , reassessments, reviews of these assessment documents and records (please also include all recorded file notes, annotations, opinions, scores, alerts, incidents associated with these documents and records.)

8. All Records and documents of telephone calls (please also include the actual voice recordings) made by myself to Service Australia's 'Personalised Services' Team and 'Special Services Team'.

9. All documents and records of Newstart and Jobseeker payments made to my accounts, the date of the payment, bank account paid into and the amounts paid.

10. All Notification documents and records Service Australia has published to and shared with other employment providers, other government agencies and other third parties.

11. All Managed Service Plan (MSP) documents and records relating to servicing strategies (internal and external), reviews and assessments of these documents and records created by Service Australia and other government departments, agencies and employment providers. (Please include all recorded file notes, alerts opinions, referrals, annotations incidents, that relate to these documents and records).

12. All Case Management Plans and Restricted Servicing Arrangements documents and records relating to the the Managed Service Plans. (Please include all recorded file notes, details of alerts, opinions, referrals, annotations that relate to these documents and records.)

13. All documents and records of the 'follow-ups' to all incident reports linked to the Managed Service Plans in point 11 above. (Please include all recorded file notes, recorded alerts, opinions, referrals, annotations that relate to these documents and records.)

14. All documents and records that relate to Further in-depth assessments of strengths, capabilities (including skills), aptitudes. (Please include all recorded file notes, records of all alerts, opinions, referrals, annotations that relate to these documents and records.)

15. All notification documents and records relating to all data breaches of my personal information (including sensitive and health information) hosted on Service Australia's Information Technology Systems. Please include the recorded severity of each notification record and date of breach.

16. All documents and records relating to all demerit points accrued and recorded for failing to meet mutual obligation requirements. (Please include all records of file notes, recorded details of all alerts, opinions, referrals, annotations that relate to these documents and records.)

17. All documents and records relating to the following complaints I lodged with Service Australia (including Centerlink and MyGov). Please include all records of the lodgement date, all records of each of the these complaints, date of complaints, documented outcomes of these complaints, resolutions and status of each complaint.) (Please include all recorded file notes, records of alerts, opinions, referrals, annotations that relate to these documents and records):

...

18. All documents and records of Job Plans signed by myself for the period 26 August 2020 up to and including 22 December 2021. (Please include all records of file notes, recorded alerts, opinions, referrals, annotations that relate to these documents and records).

19. All electronic and hard-copy photo records and documents Service Australia holds of me for the period 01 September 2017 up to and including 22 December 2021.

20. All documents and records that relating to my JobSeeker payment being suspended and stopped payment when I tried to report on 3 November 2021, (please provide all recorded details including the reasons for the suspension and stopped payments.

21. All CCTV footage records and documents Service Australia has recorded about me.

22. All special benefit documents and records.'

The applicant made a revised request (as referred to at paragraph [3] above).

Services Australia notified the applicant of its intention to refuse their FOI request on the basis that a practical refusal reason existed.

The applicant responded to Services Australia's notice requesting further information. In relation to revising the scope of request, the applicant stated:

Unless Service Australia can provide me with the maximum amount of time the agency spends searching, identifying and delivering documents and records for each FOI request, and provide specific information and details about the documents and records Services Australia is claiming I have not provided enough information about, It is not possible for me to revise my scope.

There were no further responses provided by Services Australia to the applicant before it made its decision on 5 May 2022.

Services Australia made its original decision and refused the applicant access to the requested documents on the basis that a practical refusal reason existed, namely, the processing of the applicant's request would substantially and unreasonably divert the resources of Services Australia.

The applicant lodged an internal review request to Services Australia.

Services Australia made its internal review decision affirming its original decision of 5 May 2022.

The applicant lodged an IC review request to the OAIC.

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.[20]

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.[21]

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'.[22] 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'.[23]

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'.[24]

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.[25]

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.

[1] The list of documents and records the applicant sought was extensive and comprised of 22 separate categories of documents and records.

[2] Services Australia's original decision was made on 5 May 2022. Services Australia's internal review decision was made on 6 June 2022 and affirmed the original decision on substantively similar grounds.

[3] The IC Review application was made on 14 June 2022.

[4] The applicant requested that the Information Commissioner investigate Services Australia's failure to deliver documents the applicant requested under the FOI Act, its failure to respond to the applicant's request of 21 April 2022 and that a request be made to Services Australia to provide details of why it refused an earlier FOI request in January 2022. The applicant submitted that the latter refusal by Services Australia resulted in them having to re-lodge a new request (almost identical) because Services Australia claimed it did not understand the request and refused it.

[6] Sections 24, 24AA, and 24AB as set out in Annexure B.

[7] 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).

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

[10] 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.

[11] The OAIC proposed that if Services Australia engaged in a further period of consultation with the applicant to assist them revise their request then, in particular, they should provide the applicant with further specific suggestions about how they could revise the scope of their request to remove the practical refusal reason, or provide the applicant with any other information or explanation Services Australia may be able to provide that may assist the applicant make a more targeted request.

[12] 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) at [17].

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

[15] Services Australia's Multicultural and Tailored Services Branch held an estimated 68 documents and the Smart Centres Operations Division held an estimated 3,189 documents.

[16] Services Australia's estimate excludes at least 58 online records and 55 audio call recordings (in excess of 966 minutes total duration).

[17] See, for example, Paul Farrell and Department of Home Affairs (No. 6) (Freedom of information) [2024] AICmr 184 (30 August 2024); 'NC' and Australian Building and Construction Commission (Freedom of information) [2017] AICmr 118 (17 November 2017); 'SB' and Services Australia (Freedom of information) [2020] AICmr 18 (1 June 2020); 'AOR' and Department of Health and Aged Care (Freedom of information) [2024] AICmr 219 (23 October 2024); Jack Waterford and Department of Human Services (Freedom of information) [2019] AICmr 21 (5 June 2019); Josh Taylor and Prime Minister of Australia (Freedom of information) [2022] AICmr 32 (30 March 2022)

[18] As noted at [3.121] of the FOI Guidelines, it is recommended that agencies examine a sample of the documents to assess the complexity of the material against whether the work involved in processing the request would constitute a substantial and unreasonable diversion of resources from the agency's other operations.

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

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

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

[23] 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).

[24] 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).

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