**Decision and reasons for decision of Rocelle Ago, General Manager Freedom of Information Case Management

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

Freedom of Information - Respondent to process request following removal of practical refusal reason claim

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed access refusal decision of the Australian Federal Police (the AFP). In considering the AFP's position that it no longer maintains that processing the applicant's revised request would amount to a substantial and unreasonable diversion of the AFP's resources from its other operations, I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days[1] of this decision the AFP must process the applicant's request and notify the applicant of its decision in accordance with s 26 of the FOI Act. The AFP must also advise whether it has fully implemented my decision.

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

1. On 18 December 2024, the applicant applied to the AFP for access to surveillance footage relating to an incident.
2. On 12 February 2025, the AFP provided the applicant with a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(a)(i) of the FOI Act on the grounds that a practical refusal reason exists, as processing the request would substantially and unreasonably divert the resources of the AFP from its other operations. The applicant declined to revise their request on that date.
3. On 27 February 2024, the AFP refused the applicant's request under s 24AA(1)(a)(i) on the basis that processing the request would amount to a substantial and unreasonable diversion of resources from the AFP's other operations.[2]
4. On 19 March 2025, the applicant sought IC review of the AFP's decision on the basis that a practical refusal reason did not exist.
5. During the course of the IC review, the AFP indicated that it no longer maintains that processing the applicant's revised request would amount to a substantial and unreasonable diversion of the AFP's resources from its other operations (s 24AA(1)(a)(i)).
6. In an IC review of an access refusal decision, the AFP bears the onus of establishing that their decision is justified or that I should give a decision adverse to the IC review applicant (s 55D(1)).
7. Based on the information before me, I am satisfied that the practical refusal reason no longer exists. The AFP must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

General Manager, Freedom of Information Case Management

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

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

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

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

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

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

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

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

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

[2] As the AFP did not make a decision within the statutory timeframe, it was taken to have made a deemed access refusal decision (s 15AC(3)) and its purported decision has been taken to be submissions.