**Decision and reasons for decision of Justin Lodge, 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**

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 decision of the Department of Defence (the Department) of 8 November 2024. [1] In considering the Department no longer maintains that processing the applicant's request would amount to a substantial and unreasonable diversion of the Department's resources from its other operations, I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days[2] of this decision the Department must process the applicant's request and notify the applicant of its decision in accordance with s 26 of the FOI Act. The Department must also advise whether it has fully implemented my decision.

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

1. On 8 October 2024, the applicant applied to the Department for access to all documents in the Department's possession relating to ministerial correspondence between two time periods.
2. On 4 November 2024, the Department 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 Department from its other operations.
3. On 5 November 2024, the applicant responded to the notice advising they did not wish to revise the scope of their request.
4. On 8 November 2024, the Department made a decision to refuse 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 Department's other operations.[3]
5. On 14 November 2024, the applicant sought Information Commissioner review (IC review) of the Department's decision under s 54L of the FOI Act.
6. During the course of the IC review, the Department notified the OAIC it had determined it would no longer pursue its practical refusal claim under s 24 of the FOI Act in relation to the applicant's request.
7. In an IC review of an access refusal decision, the Department 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)).
8. Based on the information before me, I am satisfied that the practical refusal reason no longer exists. The Department must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

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

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.

[1] While the decision was dated 7 November 2024, the material before the Office of the Australian Information Commissioner indicates it was provided to the applicant on 8 November 2024.

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

[3] The Department found it would take 44 hours to process the applicant's request in its decision but changed this to an indicative estimate of 32 hours during the IC review.