**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**

Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

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 internal review decision of the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts[1] (the Department) of 3 October 2023. In considering the Department's indication that it is able to process the request, I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days of this decision:
   • the Department must now process the applicant's request as revised on 10 August 2023[2], and
   • the Department must advise whether it has fully implemented my decision.

1. This decision sets aside the internal review decision of the Department in circumstances where the Department initially submitted but no longer maintains that a practical refusal reason exists.

1. On 17 July 2023, the applicant applied to the Department for access to Essendon Airport Sale Agreement 1996 and related documents and policies including policies recommending a 'light-hands' approach, undertakings to tenants, tender valuation and leases.
2. On 28 July 2023, 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 10 August 2023, the applicant responded to the s 24AB notice by revising the scope of their request. They sought the Essendon Airport sale agreement 1996, and Federal Airport Corporation and Commonwealth policies relating to hangar tenants and leases at Essendon Airport, including those in place over November 1992.[3]
4. On 30 August 2023, the Department issued a primary decision which refused the applicant's revised request under s 24(1) of the FOI Act on the basis that, after undertaking a request consultation process with the applicant under s 24AB, a practical refusal reason still existed.
5. On 1 September 2023, the applicant sought internal review of the Department's decision.
6. On 3 October 2023, the Department issued an internal review decision affirming the primary decision.
7. On 17 November 2023, the applicant sought IC review of the Department's decision under s 54L of the FOI Act.
8. During the course of the IC review,[4] the Department advised the OAIC that it is able to process the request.
9. 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)).
10. Based on the information before me, including the Department's advice that it has elected to process the request, I am satisfied that the practical refusal reason no longer exists.
11. The Department 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] The Department of Infrastructure, Transport, Regional Development, Communications and the Arts became the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts by Administrative Arrangements Order dated 13 May 2025.

[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] In submissions, the Department provided an alternative date of 15 August 2023 for its receipt of the applicant's revised scope. I have relied upon the date identified in its signed original decision of 30 August 2023.

[4] Following a direction made by the Information Commissioner under s 55(2 )(e)(ii) of the FOI Act.