A voluminous request was also the subject of consideration by the Commonwealth Administrative Appeals Tribunal in the matter of Re SRB and SRC and Department of Health, Housing,Local Government and Community Services. [1994] AATA 79; (1994) 33 ALD 171. The Tribunal there was dealing with an application brought by the Public Interest Advocacy Centre on behalf of a group of some 2,100 people who had received pituitary growth hormone under the National Pituitary Hormone Program. The argument centred around some 600 policy files relevant to the request (other material having been made available subsequent to a lengthy consultation process) and the relevant department argued that to process the balance of the request would result in a substantial and unreasonable diversion of its resources. The Full Tribunal upheld the department's decision not to process the request. At p. 179 they commented of the subject of resources as follows:

The resources of the agency referred to in para 24(1)(a) must be the resources which the respondent had at the time the request was lodged or had as at the date of the hearing. It cannot mean resources which the respondent might be able to obtain or even resources constituted by the filling of establishment positions. It also cannot mean the whole of the resources of a large Department of State. To find this would make the section meaningless. We consider it means the resources reasonably required to deal with an FOI application consistent with attendance to other priorities.

The members in re SRB referred to Prasad v Minister for Immigration [1985] FCA 47; (1985) 65 ALR 549 and in particular adopted the reasoning of Wilcox J in that case inasmuch as they decided that, in administrative review, it was not necessary that the extent of the unreasonableness be overwhelming.

Although I am not entirely in agreement with the learned members' proposition that the resources of an agency do not mean the resources that an agency might be able to obtain, I disagree only insofar as their reasoning, viewed in isolation, might provide agencies with a readymade excuse for non-compliance with large requests based solely on the absence of sufficient staff members, rather than on a balanced consideration of the reasonableness of the application. Each application must be considered in its particular factual context balanced against the objects of the legislation. (See section 3 of the Act.)

There is no evidence to suggest that the respondent has deliberately failed to provide sufficient staff to process FOI applications and indeed, the evidence before the Tribunal is that applications are presently processed within the statutory time limit. On the contrary, the evidence is that resources are adequate although not bountiful.

The respondent's evidence about its staff and resources was not contradicted, nor was its estimate of the resources required to process this application. The fact that the CAU document pool might contain many duplicate documents in no way detracts from the magnitude of the task - if anything it adds to it.

Sub-section 25A(6) sets up a condition precedent to refusing to grant access. It provides a process of consultation. The respondent submitted that it had given notice of its intention to refuse access to the CAU documents in its revised section 36 material served on 3 July 1997. In ordinary circumstances I would be inclined to find that such notification was an insufficient mode of consultation, but these are not ordinary circumstances.

When this matter was before Deputy President Macnamara on 12 June 1997, the learned Deputy President sought clarification from the applicant whether she wished to narrow the scope of her request and the issues of consultation and the possibility of a reframed request were canvassed. Indeed Mr Macnamara's request for clarification arose directly out of the Department's notification that it intended to rely on section 25A.

The applicant clearly stated that she wished to pursue all the CAU documents falling within the ambit of her request and declined to reframe or refine her request. On that day offers of assistance were proffered to the applicant but it appears she failed to take advantage of the offer and resolutely maintained her application for access to all documents falling within the terms of her vagule worded request. It is open to me to conclude (and I do so) from the evidence, that the entire 22,000 documents held by the respondent in relation to M, were the subject of the applicant's request and remain so.

Section 25A(2)(a) to (c) sets out what is to be considered by this Tribunal in deciding whether to refuse to grant access under section 25A(1) and uncontradicted evidence of those considerations was given to the Tribunal by Messrs Jenkins and Cole and by Ms Clarke. Sub-section (2) however does not limit the Tribunal to a consideration of those matters only. In addition I have formed the view that the applicant's refusal to limit the ambit of her enquiry in any way is also a relevant factor in considering whether the diversion of resources in pursuit of a particular request is unreasonable.

The applicant made three main submissions in support of her argument that the Department should be called upon to list the documents.

First, she submitted that it was in the public interest that the documents be made public because release would expose inappropriate behaviour on the part of the respondent and its officers.

Second she submitted that the magnitude of the documents arose only as a consequence of the priorities placed on this matter by the department.

Third she contended that the respondent should provide more resources to its FOI section.

In respect of her first contention I sought her submissions on how it is was that the public interest contained in section 50(4) of the Act could be applied to override the terms of section 25A(1). Unfortunately she made no submissions in relation to the law at all and I am thus unassisted by any authority to support her contention.

The governing words in section 50(4) in this regard are "including power to decide that access should be granted to an exempt document_"_ (my underlining). It is central to the operation of section 25A(1) that an agency does not have to process an application if the work involved in so doing would substantially and unreasonably divert the resources of the agency. It is not necessary that the documents be assessed and found to be exempt. In order to do this an agency would have to process the application. That would defeat the intent of the section and render it meaningless.

In relation to her second contention, the respondent's very clear statutory obligation is to provide for the protection of children and young persons. As such its ability to apply principles of priority to its case load is hampered by its statutory protective.

Turning to her third contention, the evidence before the Tribunal is that the respondent manages its freedom of information obligations within statutory time limits, albeit with some difficulty if officers are on leave. The applicant's contention that resource problems are to be solved by the simple provision of more resources from the public purse is simplistic when viewed in the context of present day budgetary practices.

The uncontradicted evidence of Mr Jenkins was that processing and assessing 22,000 documents would require the services of two support staff for 3-4 months and the equivalent of 1.75 experienced FOI officers for a period of 15-16 months.

The evidence of Ms Clarke was that there were various options which might be adopted in order to deal with this application, but that each option involved either a diminution of human resources or the expenditure of additional money. Such expenditure, she told Tribunal, inevitably involved a diminution in some other sectional budget. She told the Tribunal that further funds would not be made available to supplement the total departmental allocation. Her evidence was not contradicted. Conformably with what was said in Re SRB the applicant's solution of simply providing more resources to the FOI section must be viewed contextually with the respondent's attendance to its other priorities.

Even if Mr Jenkins' evidence were somewhat exaggerated, it is clear that the contemplated diversion of resources cannot be said to be insubstantial, it is not merely nominal or lacking substance. It involves the deployment of more than one experienced officer for in excess of a year. Such deployment would clearly have a detrimental effect of the agency's other operations. I accept the evidence of Mr Cole that diverting staff members from existing tasks would cause other work to fall behind. In my view, that it precisely the scenario deplored by Lord Diplock in Secretary of State for Education and Science v Metropolitan Borough of Tameside. Using his words as a reference, this is a course that no sensible agency acting with a proper appreciation of its responsibilities would adopt.

Alternatively the department could opt for one or other of the options posited by Ms Clarke. But those options involve either the redeployment of staff, the recruitment and training of staff or the expenditure of substantial sums of money I have no difficulty in these circumstances in finding that the diversion of departmental resources to accommodate this request for access to documents is substantial.

But the section requires the diversion to be not only substantial, but to be unreasonable as well.

The evidence of Mr Cole and Ms Clarke is that the respondent fulfils its statutory duties within proper time limits. The evidence supports a conclusion, that although staffing and resources and not plentiful, they are sufficient to meet statutory time limits and obligations within budget. I accept their evidence.

If, on the other hand, the evidence supported a conclusion that the respondent had deliberately withheld resources or deliberately failed properly to fund the department's FOI obligations so that its statutory duty was subverted, then a substantial diversion of resources might be said to be reasonable, even necessary. But that is not the case here. The evidence of Ms Clarke is that the respondent's allocation of budget and human resources is adequate for the proper performance of its legislative obligations in relation to freedom of information and I accept that.

In addition to the respondent's adequate allocation of resources I believe I am able to take into account the applicant's own actions. I am inclined to view the applicant's failure to reframe or refine her request as vitiating her good faith particularly when viewed in context with the all-embracing terminology of her request. The consultation process is of necessity a two-way process but the applicant has made no effort to make the task less onerous for the respondent. I have taken this into account in reaching my decision that to process this application utilising any one of the options suggested by the respondent would involve an unreasonable diversion of resources.

The Tribunal finds that it is not necessary for the respondent to undertake the processing of the applicant's request on the grounds that the work so involved would substantially and unreasonably divert the respondent's resources from its other operations.

Because of the nature of my finding it is not necessary for me to consider the respondent's arguments relating to section 25A(5) of the Act.

The decision of the respondent not to process the applicant's request for access to Court Advocacy Unit documents made on 3 July 1997 is affirmed. I make no order as to costs.