The applicant maintains that it was correct to refuse the respondent's request on the basis that a practical refusal reason exists.
[2]
The applicant's capacity to process the request
[3]
The applicant is a substantial agency. According to the Services Australia 2018-2019 Annual Report,[8] the agency was responsible in 2018-2019 for payments totalling $184 billion; more than 3.5 million social security and welfare claims; and more than 429 million Medicare services. It is a large and well-resourced agency. It has more than 28,000 employees.
In the financial year 2018-2019 it devoted the equivalent of 66.66 full time staff to the processing of Freedom of Information (FOI) requests. On average the agency took 2.86 days (approximately 21.5 hours) to process each request. Of the 6210 FOI access requests the agency processed, 5955 were requests for personal information. This makes it one of the largest FOI processors in the Commonwealth.
For the purposes of these proceedings it was agreed that it would take 61.25 hours for the Department to process the request. It was accepted by the applicant that much of that time would be time spent by members of the FOI team. However, it would be necessary for the FOI team to involve employees from the Emergency Management Team. The Emergency Management Team would be required to undertake the search and retrieval exercise as a consequence of the filing system used in relation to the program and advise on the sensitivities within each document.
In addition to administering the AVTOP program, the Emergency Management Team is responsible for the agency's preparation, coordination and operational responses to disasters, emergencies and ad hoc government relief. The team often has to allocate all of its resources to facilitate responses to emergencies. There was, however, no evidence to suggest that the processing of this FOI application would involve diversion of resources during any emergency situation.
Information is already in the public domain about the AVTOP program. It is a statutory program. The amount which can be paid to an applicant is capped by the Social Security Act 1991 at $75,000. The amount payable is calculated in accordance with prescriptive payment principles which are a set out in a legislative instrument.
A substantial amount of information relating to the AVTOP is publicly available on the Department's website describing the nature and purpose of the scheme, eligibility criteria and application processes.[9] The Department has published data on the number of claims paid each financial year and the total amount paid.[10] For some financial years, the Department has published further data that identifies the number of claims received, the number of payments made to primary and secondary victims, and the events in respect of which payments were made.[11] For example, it is possible to work out that the average amount paid to successful primary claimants in 2015-2016 was $57,270 and 12 claims were declined.
The applicant, however, accepts that the statistical information which is publicly available does not include all of the information which can be derived from the information in the AVTOP decision notices. The additional information which the Department concedes would become available in relation to a number of terrorist acts if the FOI request is processed includes:
[4]
(a) The average payments made to claimants in relation to each terrorist act;
[5]
(b) the number of claims made for each terrorist act;
[6]
(c) the number of successful and unsuccessful claims for each terrorist act; and
[7]
(d) the incidence of the use of discretion to pay a lesser amount.
[8]
Accordingly, the applicant accepts that more will be known about the program if the FOI request is processed although it disputes the value of that additional information particularly given that the reasons for each individual decision will not be revealed.
It is not accepted, and I am not satisfied, that the release of the decision letters will allow assessment and analysis about the parity of treatment of applicants under the scheme.
It is accepted that, in order to process the request, the applicant will be required to reach into each claimants file to obtain the letter as the decision letters are not stored in one central place. The applicant must then carefully redact claimants' personal information from the documents before they can be released. In some cases where only a small number of Australian victims were referable to a particular terrorist act, this may require deletion of more than just names and addresses further reducing the utility of the document. What would be disclosed would be over 1200 pages of mostly repetitive proforma text interspersed with data about particular claims.
It is within this factual context that the question of whether a practical refusal reason exists must be considered.
[9]
The statutory framework relevant to this decision is as follows:
[10]
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
[11]
(a) requiring agencies to publish the information; and
[12]
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
[13]
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
[14]
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
[15]
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
[16]
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
[17]
24 Power to refuse request - diversion of resources etc.
[18]
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
[19]
(a) must undertake a request consultation process (see section 24AB); and
[20]
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists - the agency or Minister may refuse to give access to the document in accordance with the request.
[21]
24AA When does a practical refusal reason exist?
[22]
(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:
[23]
(i) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations;
[24]
(2) Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
[25]
(a) identifying, locating or collating the documents within the filing system of the agency...;
[26]
(b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
[27]
(ii) consulting with any person or body in relation to the request;
[28]
(c) making a copy, or an edited copy, of the document;
[29]
(d) notifying any interim or final decision on the request.
[30]
(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
[31]
(a) any reasons that the applicant gives for requesting access; or
[32]
(b) the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or
[33]
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
[34]
(1) This section sets out what is a request consultation process for the purposes of section 24.
[35]
(2) The agency or Minister must give the applicant a written notice stating the following:
[36]
(a) an intention to refuse access to a document in accordance with a request;
[37]
(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;
[38]
(d) details of how the applicant may contact the contact person;
[39]
(e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days
[40]
(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.
[41]
(4) For the purposes of subsection (3), reasonable steps includes the following:
[42]
(a) giving the applicant a reasonable opportunity to consult with the contact person;
[43]
(b) providing the applicant with any information that would assist the applicant to revise the request.
[44]
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister;
[45]
(c) indicate that the applicant does not wish to revise the request.
[46]
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
[47]
(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to guidelines issued for the purposes of the following provisions:
[48]
The Information Commissioner has issued guidelines under section 93A of the FOI Act (Guidelines).[12] I have had regard to those Guidelines and, in particular, paragraphs 3.108 - 3.136 of the version of the Guidelines identified as having been combined in November 2019. In having regard to the Guidelines I accept Senior Member Puplick's observations in VMQD v Commissioner of Taxation (Freedom of Information)[2018] AATA 4619 at [59]:
[49]
[the Guidelines] are not binding, definitive or determinative ... they nevertheless assist in helping the Tribunal to deal with matters which cannot be resolved by direct reference to the terms of the Act itself.
[50]
Of particular relevance to this matter are paragraphs 3.112, 3.117 and 3.119 of the Guidelines which provide:
[51]
3.112 An important similarity in both [substantial and unreasonable] tests is that they require consideration of whether processing a request would have a 'substantial' and 'unreasonable' effect. There may be circumstances where the processing of an applicant's request would have a substantial effect on an agency or minister but may not necessarily be unreasonable in the circumstances. For example, an agency that is particularly large may not necessarily find that the processing of a request to be unreasonable, despite the fact that processing the request would have a substantial effect on the agency. Such agencies are likely to have dedicated resources to ensure that it can appropriately handle requests and reduce the impact of the requests on other business areas of the agency through the establishment of a permanent FOI team, as well as assigning additional temporary resources to handle a peak in the number or complexity of requests.
[52]
3.117 Other matters that may be relevant in deciding if a practical refusal reason exists include:
[53]
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 document requested
other steps taken by an agency or minister to publish information of the kind requested by the applicant
[54]
3.119 Whether a practical refusal reason exists will be a question of fact in the individual case. Bearing in mind the range of matters that must and can be considered, it is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason. Agencies should not adopt a 'ceiling' in relation to processing times; for example, deciding that a practical refusal reason exists once the estimated processing time exceeds 40 hours. Rather, each case should be assessed on its own merits, and the findings in individual AAT and IC review decisions which discuss estimated processing times should be viewed in that light.
[55]
The applicant submits that 61.25 hours (or 8.1 days) of processing time is sufficient to establish a substantial diversion of resources particularly in a context where the average amount of time normally spent on an FOI request by the agency is 2.8 days.
The applicant submits that it is an unreasonable diversion because:
[56]
(a) There is no significant public interest in the documents requested when regard is had to how much information is already in the public domain about the program.
[57]
(b) What little additional information that the release of the sought-after material will reveal does not generate a sufficient public interest to justify the diversion of resources.
[58]
(c) Disclosure carries with it a real risk of identification of the claimant, and, where the claimant is a secondary victim, the primary victim.
[59]
(d) The goal of promoting the effective oversight of public expenditure is best met by looking at the operation of the AVTOP scheme as a whole and the data already published is sufficient for that purpose.
[60]
(e) The public interest in revealing the reasons for individual government decisions is not advanced by the disclosure of the decision letters because they do not contain reasons for the decision to grant or reject individual claims.
[61]
(f) Release of the decision notices will not increase public participation in government processes or inform the community of the policies, rules, guidelines, practices and codes of conduct followed by the government. Information about the program published elsewhere does that.
[62]
(g) The amount of work required is disproportionate to the value which can be extracted from the documents.
[63]
(h) The letters were sent to a highly sensitive customer cohort who have experienced significant trauma. While personal information will have been redacted there is nevertheless a risk, depending on the redactions applied, that a customer would recognise the letter sent to them (if published) and be further traumatised by its release to a third-party journalist. It would not be in the public interest for such outcomes to occur.
[64]
(i) It would not be in the public interest to divert staff from the Emergency Management Team which has important responsibilities to search for and retrieve documents in response to an FOI request that will ultimately add little to what is already publicly available.
[65]
The Tribunal raised with the applicant the question of whether, in the phrase 'divert the resources of the agency from its other operations', 'other operations' included the processing of other FOI requests. The applicant submitted that it did.
[66]
The respondent denies that 61.25 hours of processing time is substantial although it does not appear to contest that, in the context in which it appears, the word 'substantial' should be treated as meaning 'real or of substance and not insubstantial or nominal'.[13]
The respondent submits that there will not be an unreasonable diversion of agency resources. He submits that whether disclosure would be 'unreasonable' is a question of fact and degree which calls for a balancing of all the legitimate interests involved.[14]
The respondent submits that, in line with section 3(2) of the FOI Act, the increased amount of information that would become available would increase the scrutiny of this government program. The respondent submitted that this was important at a level of principle because it was rare that governments would publish information about a failing program. Information about programs which are damaging to an agency's 'political masters' is not likely to be widely published.
The respondent pointed out that, if the information it was hoping to obtain about the program were summarised in a ministerial brief, there would be no argument that they should get access. The fact that the information is stored in a large number of letters rather than summarised in one place should not affect whether the respondent gets access to the documents.
The respondent submitted the suggestion that there is a highly sensitive customer cohort who might be alarmed by the disclosure was a submission made without evidence. There was nothing in the letters (once appropriately redacted) that could have that result.
He also submitted that there was no basis for the applicant's submission that release could lead to identification of the claimant. This submission was premised on the proposition that the victims of terrorism have already been identified by the media.[15]
The respondent submitted that there was a significant public interest in the release of information about the number of claims and payments in respect of each individual terrorist acts and that additional information could be gleaned about a number of aspects of the program.
The respondent urged the Tribunal to reject the proposition that what was already published was sufficient. An agency deciding for itself what was the best way for oversight to occur was not in the public interest.
The respondent submitted that release of the letters will also allow some assessment and analysis about the parity of treatment of claimants under the scheme. The work required to process the claim is not disproportionate to the value which can be extracted from the documents and the failure of the applicant to store documents at a central location cannot be used to justify claims of a substantial and unreasonable diversion of resources.
[67]
The resolution of this matter requires an answer to three questions:
[68]
(a) first, does the phrase 'other operations' of the agency in section 24AA comprehend the processing of other FOI requests. If it does, then the diversion of resources amounts to 61.25 hours, as agreed between the parties. If it does not, then the diversion is substantially less;
[69]
(b) second, does the work involved in processing the request substantially divert the resources of the agency from its other operations; and
[70]
(c) third, does the work involved in processing the request unreasonably divert the resources of the agency from its other operations?
[71]
What does the phrase 'other operations' of the agency comprehend?
[72]
The processing of the respondent's FOI request involves a significant amount of work from the applicant's FOI team and, in relative terms, a much smaller amount of work from the Emergency Management Team. Consequently, if the work of the FOI team could not be included in the assessment of the resources diverted, then the estimate of the resources diverted would be substantially reduced.
The respondent pressed, but only tentatively (and only after the query was raised by the Tribunal), the proposition that the resources of the FOI team could not be included.
I am satisfied that the proposition is not correct.
The terms of section 24AA creates a dichotomy between 'the work involved in processing the request' on the one hand and the agency's 'other operations'. There is no textual or contextual reason for reading down the 'other operations' of the agency to exclude the work that the agency does on processing other FOI requests. I am fortified in this conclusion by the FOI Guidelines which include, as a relevant matter in deciding if a practical refusal reason exists, 'the impact that processing a request may have on other work in an agency or minister's office, including FOI processing'.[16]
In light of this conclusion, the starting point is that the respondent's FOI request does involve the diversion of 61.25 staff hours from the other operations of the Department.
[73]
Does the processing substantially divert resources?
[74]
The diversion of 61.25 staff hours, while significant if measured against the amount of resources the applicant usually devotes to an average FOI request, are tiny relative to the resources available to the agency. Accordingly, it is important to have a proper frame of reference when considering the threshold set by the term 'substantially'.
It has long been recognised that the use of the word 'substantial' is both susceptible to ambiguity and is a word 'calculated to conceal a lack of precision'.[17] It is also a term whose meaning can range, depending on context, from requiring that something be 'large weighty or big'[18] or merely indicate that something needs to be 'real or of substance'.[19] Accordingly, a constructional choice needs to be made in relation to the meaning of the word 'substantially' in the context in which it appears.
In Langer and Telstra Corporation Ltd[2002] AATA 341, Deputy President Forgie concluded that in section 24 (which in 2002 contained a similar provision to section 24AA) the 'substantially' threshold required only that the diversion of the resources of the agency be 'real or of substance' rather than large.[20]
There are strong contextual reasons for favouring this meaning of the term.
At the point in time at which the FOI Act was introduced, it was recognised that introducing a system whereby a person could apply for documents which must be provided unless those documents were exempt, had serious resource implications for agencies required to administer requests.[21] Section 24, in its original and amended form, were designed to deal with this issue.
Before an agency can avail itself of the practical refusal reason for failing to process a request, it must establish that doing so would substantially and unreasonably divert resources. These terms should not be interpreted in isolation from each other. To succeed with the exclusion, an agency must establish both. Accordingly, even if an application would involve the unreasonable diversion of the resources of an agency, if the diversion is not substantial then it is not possible to refuse the request for practical refusal reasons. Parliament has, in effect, set a resource-diversion threshold below which even requests that unreasonably divert resources must be processed.
The constructional choice in this case is between an option which forces an agency to process an unreasonable request up to the point at which the resource diversion could be described as large, or, only forcing an agency to process unreasonable requests in circumstances where there is a material diversion of resources even if, in the context of that agency, or objectively, the resources diverted are quite small.
It is unlikely that Parliament was intending to create a regime under which resources which were significant but could not be described as large (either relative to the size of the agency or in absolute terms) were being diverted to the processing of FOI requests which unreasonably diverted public resources.
A 'material' test is open on the language of the text and consistent with the purpose of the provision and the FOI Act as a whole - keeping in mind that one of the objects of the Act is to facilitate and promote public access to information, promptly and at the lowest reasonable cost. If citizens were able to force the processing of unreasonable FOI requests because the resource diversion threshold was set high, then it eliminates incentives to negotiate reasonable outcomes which meet the disclosure objectives of the FOI Act but at a reasonable cost.
Accordingly, I am satisfied that in the context in which it appears in section 24AA, the word 'substantially' refers not to a large diversion of resources but merely to one of substance. 61.25 hours of Departmental employee's time is a diversion of substance and, therefore, meets the threshold for a substantial diversion of resources.
I note for completeness that if I had concluded the term substantially conveyed a requirement for a 'large' diversion of resources, I would not have been satisfied that 61.25 hours met that requirement in the context of the resources available to Services Australia.
[75]
Does the processing unreasonably divert the resources?
[76]
Focus then turns to the question of whether the processing of the request unreasonably diverts resources. Whether or not disclosure would be 'unreasonable' is a question of fact and degree which calls for a balancing of all the legitimate interests involved.[22]
The applicant submits that in assessing whether the diversion of resources is unreasonable requires the decision maker to consider:
[77]
(a) the resources involved in the processing of the request, but in addition, also consider the resources available to the agency, who will undertake the processing and whether or not they have competing priorities;
[78]
(c) whether the FOI applicant cooperated in the request consultation process by re-framing a request to reduce the processing workload;
[79]
(d) whether there is a significant public interest in the documents requested; and
[80]
(e) other steps taken by the agency or minister to publish information of the kind requested by an FOI applicant.
[81]
I agree that those are the relevant matters to be considered in this case.
In considering them though, two matters of statutory context should be noted. First, I must not have regard to: [23]
[82]
(a) any reasons that the respondent gave for requesting access; or
[83]
(b) the agency's or Minister's belief as to what the respondent's reasons are for requesting access; or
[84]
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
[85]
Second, the objects of the FOI Act include giving the Australian community access to information held by the Government of the Commonwealth by:[24]
[86]
(a) requiring agencies to publish the information; and
The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
[89]
It is clear, therefore, that the FOI Act is an Act which is designed to promote disclosure and should be administered with a bias towards disclosure.
I turn then to the various factors which are relevant in this matter to a determination of whether the diversion of resources is unreasonable:
[90]
(a) the resources involved in the processing of the request and the resources available to the agency;
[91]
(b) who will undertake the processing, whether or not they have competing priorities, and whether there is any impact on other work in the agency;
[92]
(c) whether the FOI applicant cooperated in the request consultation process by re-framing a request to reduce the processing workload;
[93]
(d) whether there is a significant public interest in the documents requested; and
[94]
(e) other steps taken by the agency or Minister to publish information of the kind requested by an FOI applicant.
[95]
I will consider each in turn.
First, the resources involved in processing the request. As noted above, the diversion of agency resources at 61.25 hours, is not insignificant. However, in the context of an agency which according to its 2018/2019 Annual Report has more than 28,000 employees and has devoted the equivalent of 66 full time employees to the processing of FOI requests, the diversion is less significant than it would be for a smaller agency. Processing the claim is well within the capacity of the agency with the resources it has available to it.
Second, the identity of the persons who will undertake the processing of the claim and the impact on the other work of the agency. I am satisfied that the bulk of the work in processing the claim will be done by the agency's specialised FOI team. Some time will be spent by the line area, the Emergency Management Team, in locating the documents and in assisting the FOI team in relation to appropriate redactions to be made, but there is no evidence to suggest that the nature of the request is such that specific staff will be diverted from important work at critical times. These first two factors do not support the conclusion that the diversion of resources will be unreasonable.
Third, whether the applicant co-operated in the request consultation process. On the surface, the applicant in this case was unco-operative. On 4 December 2017, he indicated that he did not intend to revise the scope of his request and consequently a final refusal notice was issued. He made no attempt to identify a narrower class of material which would satisfy him. The applicant submits that when an FOI applicant seeks source material, as the respondent did in the form of decision letters, they inevitably are creating a processing burden and they should be expected to consider a less burdensome request which may meet their need for information. So much can be accepted. In the present case the applicant's submission is that the respondent should have, instead of insisting on the production of the letters, given consideration to seeking the information underlying the statistics about the program which are already in the public domain. This would have been less burdensome and therefore more reasonable. I do not accept that submission.
The applicant has conceded that additional information about the program will become publicly available as a consequence of the release of information in the form sought by the respondent. In circumstances where no less burdensome alternative that would yield the same information has been identified, I am not willing to cast upon the respondent any obligation to be more accommodating. One of the benefits of the FOI Act is that it allows citizens to get access to information that they want, not only information that agencies want them to access. It is not legitimate to characterise a person as unco-operative merely because they failed to explore or agree to a process which was less burdensome but also less revealing. The approach taken by the respondent does not support a conclusion that the diversion of resources is unreasonable.
Fourth, whether there is a significant public interest in the documents requested. In circumstances where I am satisfied that this FOI request can be processed using the existing resources of the agency and without significant diversion from the non-FOI work of the agency, I am not willing to assess stringently the public interest served by the release of the specific information which the applicant concedes will be brought to light by the release of the decision letters. The release of the information will increase scrutiny and review of Government activities at least in the sense that more will be known about it. That serves the public interest in and of itself. In the present context I do not consider it appropriate for me to make a judgment about whether the particular information revealed about the AVTOP program has more general utility. In this circumstance, and I am sure in many other circumstances, that is not the kind of analysis which should be attempted. Once it is accepted that new information will come to light about a Government spending program, a public interest is served and that counts against a finding that the diversion of resources is unreasonable.
Fifth, other steps taken to publish information about the program. I accept that there is already a significant amount of information available in the public arena about AVTOP that has been willingly put there by the agency. Further, the amounts paid under the program are paid in accordance with quite specific legislative requirements. These matters diminish the extent to which the material produced in response to the FOI request can increase scrutiny, discussion, comment and review of the Government's activities.
However, as the respondent rightly points out, there are dangers in allowing those who administer programs to control what information is released in relation to a program.[26] It would be unfortunate if the more thorough scrutiny which the FOI Act provides for, could be avoided or diminished by an agency choosing to release material in a form that painted a favourable but not entirely representative picture of a program.[27] Even though a considerable amount is known publicly about the AVTOP program, what is known has been chosen by the agency. Scrutiny is enhanced when a citizen can obtain ready access to information which the agency has not chosen to release. Once it is conceded that, as a result of the FOI request, more information will be available to the public, it would be a rare case where disclosure of other information about the same program would aid in establishing that the consequent diversion of resources was unreasonable.
[96]
Having regard to the conclusions reached above, I am satisfied that the processing of the request does not involve an unreasonable diversion of the resources of the agency and I affirm the decision under review.
[97]
Icertify that the preceding 69 (sixty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O'Donovan.
Mr Thomas Creedon, Australian Government Solicitor
[100]
[8] Services Australia, 2018-2019 Annual Report (12 February 2020) .
[101]
[12] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Combined November 2019).
[102]
[13] Respondent's Statement of Facts, Issues and Contentions filed on 28 October 2019, at [17].
[15] This submission was effectively withdrawn when it was pointed out that it was not just the fact of being a victim of terrorism that would be revealed by the disclosure but the additional fact that the person was a claimant under the scheme.