Our ref:
FOI23/179; CM22/9306
18 May 2023
Alex Pentland
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Alex
Freedom of Information Request FOI2/179 – Request consultation process
The purpose of this letter is to seek information from you about your request for access to documents
under the
Freedom of Information Act 1982 (the FOI Act) which you submitted to the Attorney-General's
Department (the department).
Your Request
On 23 March 2023, you requested access to:
(a.) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Attorney General's Department, as well as any correspondence between the Attorney-
General and/or his office and the Attorney General's Department, in relation to the proposed
wording for the Voice referendum;
(b) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Attorney General's Department, as well as any correspondence between the Attorney-
General and/or his office and the Solicitor-General and/or any correspondence between the
Attorney-General's Department and the Solicitor-General in relation to the proposed wording for
the Voice referendum;
(c) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Australian Government Solicitor, as well as any correspondence between the Attorney-
General and/or his office and/or any correspondence between the Attorney-General's Department
and the Australian Government Solicitor in relation to the proposed wording for the Voice
referendum; and
(d) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Prime Minister and/or his office in relation to the proposed wording for the Voice
referendum.
On 23 March 2023, the department sent you an auto-response email acknowledging your request.
On 3 April 2023, the department requested a 30 day extension of time to the due date for this request. On
3 April 2023, you responded agreeing to the department’s extension of time request.
A decision for this request is due on 22 May 2023.
Practical refusal reason
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to freedom of
information requests made to the department.
I have decided that the work involved in processing your request in its current form would substantially and
unreasonably divert the resources of this department from its other operations due to its size. Section
24AA of the FOI Act refers to this as a ‘practical refusal reason’ (copy at
Attachment A).
A preliminary search of the department’s holdings indicates the department holds more than
900 documents relevant to your request. The departmental resources required to identify, locate and
collate all documents within the scope of your request, and decide whether to grant, refuse or defer access
to each of those documents would unreasonably divert the resources of the department from its other
operations.
Request consultation process
Before I make a decision to refuse access to the documents you requested, section 24AB of the FOI Act
provides for a ‘request consultation process’ (copy at
Attachment A). This means you have 14 days in which
to respond to this notice revising your request in one of the ways described below. If you would like to
proceed with your FOI request, you must make a revised request, in writing, within 14 days of the date you
receive this letter.
Revising your request can mean narrowing the scope of the request to make it more manageable or
explaining in more detail the documents you wish to access. For example, by providing more specific
information about exactly what documents you are interested in, the department may be able to identify
the documents more quickly and avoid using excessive resources to process documents that are not of
interest to you. You could also limit the scope of your request to certain types of documents or exclude
certain types of documents, or limit the timeframe of your request (for example, requesting documents
created only after a specified year).
During the consultation period, you are welcome to seek assistance from the contact person listed below to
revise your request. If you revise your request in a way that adequately addresses the practical refusal
grounds outlined above, the department will recommence processing it. Please note that the time taken to
consult you about the scope of your request is not included in the 30 day time limit for processing your
request.
If you do not wish to proceed with your FOI request, you may either withdraw your request or advise the
department that you do not wish to revise your request. You request will be withdrawn if you do not
contact us or provide written notice of the revised scope of your request within 14 days from receipt of this
notice.
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Questions
If you wish to discuss this decision, the FOI case officer for this matter is xxxxxx, who can be reached on
(02) 6141 6666 or by email to
xxx@xx.xxx.xx.
Yours sincerely
David Lewis
General Counsel (Constitutional)
Office of Constitutional Law
Attachments
Attachment A:
Sections 24AA and 24AB of the FOI Act
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Attachment A
Section 24AA of the FOI Act: When does a practical refusal reason exist?
(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:
(a) the work involved in processing the
request:
(i)
in the case o
f 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;
(b) the
request does not satisfy the requirement
in paragraph 15(2)(b) (identification
of documents).
(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, th
e agency or Minister must
have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating th
e documents within the filing system of
the agency, or
the office of the Minister;
(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:
(i) examining the
document; or
(ii) consulting with any person or body in relation to the
request;
(c) making a copy, o
r an edited copy, of th
e document;
(d) notifying any interim or final decision on
the request.
(3) In deciding whether a
practical refusal reason exists, an
agency or Minister must not have regard
to:
(a) any reasons that the
applicant gives for
requesting access; or
(b) the
agency's or Minister's belief as to what the
applicant's reasons are
for
requesting access; or
(c) any maximum amount, specified in the regulations, payable as a charge for processing
a request of that kind.
Section 24AB of the FOI Act: What is a request consultation process?
Scope
(1) This section sets out what is a
request consultation process for the purposes of section 24.
Requirement to notify
(2)
The agency or Minister must give
the applicant a written notice stating the following:
(a) an intention to refuse access to a
document in accordance with a
request;
(b) the
practical refusal reason;
(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;
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(d) details of how the
applicant may contact the contact person;
(e) that the period (the consultation period ) during which the
applicant may consult with the
contact person is 14 days after the day th
e applicant is given the notice.
Assistance to revise request
(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.
(4) For the purposes of
subsection (3), reasonable steps includes the following:
(a) giving the
applicant a reasonable opportunity to consult with the contact person;
(b) providing the
applicant with any information that would assist th
e applicant to revise
the
request.
Extension of consultation period
(5) The contact person may, with the
applicant's agreement, extend the consultation period by
written notice to
the applicant.
Outcome of request consultation process
(6)
The applicant must, before the end of the consultation period, do one of the following, by written
notice to the
agency or Minister:
(a) withdraw the
request;
(b) make a revis
ed request;
(c) indicate that the
applicant does not wish to revise the
request.
(7)
The request is taken to have been withdrawn und
er subsection (6) at the end of the consultation
period if:
(a) the
applicant does not consult the contact person during the consultation period in
accordance with the notice; or
(b) the
applicant does not do one of the things mention
ed in subsection (6) before the end of
the consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day
an applicant is given a notice und
er subsection (2) and ending on
the day the
applicant does one of the things mentioned in
paragraph (6)(b) or (c) is to be
disregarded in working out the 30 day period mentioned in
paragraph 15(5)(b).
Note:
Paragraph 15(5)(b) requires that an
agency or Minister take all reasonable steps to notify
an
applicant of a decision on the
applicant's request within 30 days after the
request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges
the agency or Minister to undertake a
request
consultation process once for any particular
request.
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