PO Box 7820 Canberra BC ACT 2610
2 October 2025
Our references: LEX 78207
LEX 76729
Your reference: MR23/01526
Jason Aghahowa
Assistant Review Advisor
Review and Investigations
Freedom of Information
Office of the Australian Information Commissioner
Only by email: xxxxx@xxxx.xxx.xx
Dear Mr Aghahowa,
Response to notice of Information Commissioner review and request for information
1.
I refer to your correspondence dated 19 September 2025, advising Services Australia
(the Agency) that in accordance with
‘AUC’ and Services Australia (Freedom of
information) [2025] AICmr 34 at [22] – [25] , an Applicant expressing a request in broad
language is not sufficient to satisfy a practical refusal reason s 24AA(1)(b) of the
Freedom of Information Act 1982 (FOI Act).
2.
In this correspondence you requested that Services Australia provide further
submissions clarifying its position in relation to the practical refusal reasons the Agency
is relying on (i.e. does Services Australia continue to rely on s 24AA(1)(b) of the FOI Act
or does it only rely on s 24AA(1)(a)(i)).
Background
3.
On 31 October 2023, the Applicant made a request under the FOI Act for access to the
following documents (
Attachment A):
Al active Memorandum of Understanding, Heads of Agreement, Data Sharing
Agreements, and Service Contracts that result in the sharing of veteran data,
even if de-identified. I am looking for similar documents for programs and
agreements that ceased within the last 10 years or are stil active.
4.
On 8 November 2023, the Agency formally consulted with the Applicant under section
24AB of the FOI Act as the amount of work involved in processing the request in its
current form would substantially and unreasonably divert the resources of the Agency
from its other operations. Furthermore, it was unclear whether the Applicant’s request
is seeking memorandum, data sharing agreements between Services Australia and
DVA, or if the request is seeking data agreements in relation to any DVA recipients
(
Attachment B).
5.
On 14 November 2023, the Applicant responded to the Agency’s section 24AB
consultation (
Attachment C), stating;
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It appears that services Australia among DVA are the perpetrators of the Mates
privacy breach - https://www.dva.gov.au/news/latest-stories/statement-
department-veterans-affairs-veterans-mates-program-update
It’s not unreasonable to ask the department what other persons you are
receiving our data about nor who you are sharing it with.
For clarity I am at this stage only looking for data that is only specific to
veterans and not general streams like interest information, company data etc.
to be clearl it’s only schemes and sharing that relates specifically to veterans
such as income sharing with DVA, hearing services entitlement checking,
sharing DVA holders bil ing history to SA University and other providers though
Proda etc.
I loo forward to you working with me for a new scope
6.
On 17 November 2023, the Agency continued to formally consult with the Applicant
under section 24AB of the FOI Act (
Attachment D). It was noted that although the
Applicant provided further information regarding the request, there was stil a significant
amount of work required across a large number of business areas within the Agency to
process the request. It was noted that the Applicant’s revised request
could stil extend
to every exchange which
may include Veterans’ data. The Agency therefore considered
the processing time for the Applicant’s request would substantially and unreasonably
divert the resources of the Agency from its other operations. Clarification was also
sought from the Applicant in respect of what was meant by;
• income sharing with DVA;
• What hearing services entitlements are you referring to (is this income, allowance,
Medicare Benefits Schedule (MBS) item numbers etc)?
• a “DVA holders bil ing history”;
• “providers through Proda”
7.
On 25 November 2023, the Applicant responded to the Agency with as follows:
(
Attachment E)
I do not concur with your claims as such either made a decision and provide the
documents or provide a practical refusal so I can ask OAIC to review the matter.
8.
On 14 December 2023, the Agency issued the Applicant with the original decision
refusing the request under section 24(1) of the FOI Act because a 'practical refusal
reason' existed under section 24AA of the FOI Act. The Agency was satisfied that that
the Applicant’s request was unclear, and did not sufficiently identify the documents
requested as specified in section 24AA(1)(b) of the FOI Act (
Attachment F):
9.
On 5 February 2024, the Agency was advised by OAIC that the Applicant had sought
review of the Agency’s decision to refuse the request under section 24 of the FOI Act
(
Attachment G). In this notice, the OAIC advised that the Agency should provide the
following:
• The original FOI request and any correspondence with the FOI applicant that modifies
the scope of the FOI request.
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• Copies of any correspondence including file notes of telephone conversations
relating to the Respondent’s request consultation process, including a copy of; the
letter sent to the applicant, and the applicant’s response (if any).
• Records that demonstrate the number of documents and/or pages encompassed by
the request, including but not limited to notes of any searches conducted, and
consultations with relevant staff members.
• An estimation of the number of hours processing time involved, and a breakdown of
this time to demonstrate what this is based on.
• Evidence of document sampling, if undertaken. If no sampling was undertaken,
submissions addressing why a sample of the documents requested was not
examined.
• The names and contact details of anyone who was consulted by the Respondent,
formally under ss 15(7), 26A 27A, or informally (including consultations with other
government agencies).
• Submissions in support of the Respondent’s decision, in particular why the
Respondent considers that processing the request would involve both a substantial
and unreasonable diversion of resources. Completion of the form set out at
Attachment A wil be taken as submissions in support of the practical refusal reason.
This being despite the fact that the refusal decision related to a section 24AA(1)(b)
refusal, not a section 24AA(1)(a)(i) decision.
10. On 28 March 2024 the Agency provided OAIC with the requested documents and
submissions by way of Attachment A, maintaining the practical refusal reason existed.
The Attachment A form is quite limiting in that it only requests information relevant to a
section 24AA(1)(a)(i)) and does not allow the Agency to provide information or
arguments in respect of section 24AA(1)(b) of the FOI Act. Therefore, in complying with
OAIC’s request, the Agency was unable to provide full and complete submission in
respect of this matter.
11. On 19 September 2025 the Agency received an email from OAIC advising that after
having reviewed the material provided on 28 March 2024, OAIC were not satisfied that
the Agency has met its onus, and therefore requested the Agency provide further
submissions clarifying its position in relation to the practical refusal reasons the Agency
was relying upon. Clarification was sought on whether the Agency continued to rely on
s 24AA(1)(b) of the FOI Act, or does it only rely on s 24AA(1)(a)(i)).
Summary of agency submissions
12. The Agency submits that the correct and preferable decision is that a practical refusal
reason exists in relation to the Applicant’s FOI request under section 24AA of the FOI
Act as the Agency has been unable to identify the entirely of the documents in which the
Applicant is seeking, and therefore the requirement set out in section 15(2)(b) of the FOI
Act has not been satisfied.
13. Further, and or in the alternative, should OAIC determine that the Applicant’s request is
clear enough to process, and therefore meets the requirement set out in section 15(2)(b)
of the FOI Act, the Agency argues that the Agency would be required to take a broad
view of the Applicant’s request, and a practical refusal reason would exist as the work
involved in processing the Applicant’s request would substantially and unreasonably
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divert the resources of the agency from its other operations under section 24(1)(a)(i) of
the FOI Act.
14. If OAIC was to accept that the Applicant’s request would substantially and unreasonably
divert the resources of the agency from its other operations, these written submissions
should be read in conjunction with the practical refusal submissions form completed and
provided to OAIC on 28 March 2024.
15. The Agency has unsuccessfully attempted to consult with the Applicant in the course of
the original decision, to clarify the documents in which he is seeking, and therefore the
parties have been unable to revise the scope of the request such that the practical
refusal reasons are resolved.
16. Consultation has not been had with the Applicant in the course of the Information
Commissioner Review given that the Applicant’s last response to the Agency requested
that if a practical refusal reason was to be relied upon by the Agency, the Applicant
wished to seek review from OAIC. This indicates to the Agency that the Applicant does
not wish to engage directly with the Agency on this issue.
Submissions
Section 24 of the FOI Act – Power to refuse request – the documents are not reasonably able
to be identified
17. Section 24 of the FOI Act provides:
(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:
a) must undertake a request consultation process (see section 24AB); and
b) if, after the request consultation process, the agency or Minister is satisfied
that the practical refusal reason stil exists—the agency or Minister may
refuse to give access to the document in accordance with the request.
18. Section 24AA of the FOI Act provides:
(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 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;
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,
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link to page 5 link to page 5
the agency or Minister must have regard to the resources that would have to be
used for the following:
a) identifying, locating or col ating the 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, or an edited copy, of the document;
d) notifying any interim or final decision on the request.
19. Paragraph 3.109 of the FOI Guideline
s1 provides:
A formal requirement of making an FOI request is that the request must provide such
information as is reasonably necessary to enable a responsible officer of the agency or
the minister to identify the document that is requested (s 15(2)(b)). This differs from
other formal requirements, in that a failure to comply with this requirement is classified
by the Act as a ‘practical refusal reason’ for which a request consultation process is
required.
Request consultation process
20. We understand that the Information Commissioner is satisfied that appropriate
consultation measures have been undertaken in accordance with section 24AB of the
FOI Act.
Documents cannot be identified
21. Deputy President Forgie, in
Langer and Telstra Corporation Ltd [2002] AATA 341, said
the following in relation to section 24A of the FOI Act:
It seems to me that the first limb of s 24A requires that the department take such
steps to discover the requested documents as are appropriate in the
circumstances. The circumstances that are relevant in determining the steps that
are appropriate include the subject matter of the documents sought, the file
management systems, any destruction schedules followed … and the steps that
have already been taken to locate documents within the terms of the requ
est.2
22. This approach was confirmed in
Bienstien and Attorney-General (Commonwealth of
Australia) [2008] AATA 490 (emphasis added):
Whether all reasonable steps have been taken wil be assessed having regard to
such matters as the nature of the documents sought in the request, whether
1 Guidelines issued by the Information Commissioner pursuant to section 93A of the FOI Act (the FOI
Guidelines).
2
Langer and Telstra Corporation Ltd [2002] AATA 341 at [95].
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documents of that sort are usually filed in a certain category or categories and
whether documents of that sort would normally be referred to a certain division,
branch or section or to more than one in an agency for action. Steps that are
comprehensive and that are directed to locating documents in those places wil be
relevant. Where documents are proving elusive,
discussions with persons who
would be likely to have dealt with the subject matter at the relevant time may be
relevant.
3
23. The Agency contends that the Applicant’s request does not contain sufficient information
that would allow an officer of the Agency to reasonably identify documents that may fall
within the scope of the request. The Agency’s Veterans Branch noted that it required
further information in respect of (
Attachment H);
• Is the request seeking Memorandum of Understanding, Heads of Agreement,
Data Sharing Agreements, and Service Contracts between Services Australia
and the Department of Veterans’ Affairs (DVA). Or is the request seeking data
agreements in relation to any DVA recipients;
• What scheme is the Applicant referring to;
• What is meant by income sharing with DVA;
• What hearing services entitlements is the Applicant referring to (is this income,
allowance, MSB item numbers etc;
• What is a DVA holder bil ing history; and
• What is meant by providers through Proda;
24. The Agency’s Veterans Branch indicated that as “Veterans data” is not mutually
exclusive to agreements between the Department of Veterans’ Affairs (DVA) and
Services Australia (the Agency), as veteran information may be shared in conjunction
with our business-as-usual Medicare, Centrelink, Child Support and administrative
service offers or where information is provided to support other Federal entities meet
their administrative responsibilities. Broadly this request could extend to every exchange
which
may include veterans’ data and
may include individual data sharing agreements
for each veteran.
25. The Registers and Assurance Branch, who maintain the Agencies agreement register,
indicated to the Agency’s Veterans Branch that possible documents that may be in
scope of the Applicant’s request, that may mention ‘veterans’ data’, could include more
than 900 documents.
26. Further consultation with other Agency business areas would be necessary, however,
it is likely to result in additional documents being identified within scope of the
Applicant’s request.
3
Bienstien and Attorney-General (Commonwealth of Australia) [2008] AATA 490 at [48]. See also
Re
Khorramdel and Department of Human Services [2012] AATA 707 and
De Tarle and Australian
Securities and Investments Commission [2015] AATA 770 which followed a similar approach to
reasonable searches.
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27. In
Russel Island Development Association Inc and Department of Primary Industries
and Energy [1994] AATA 2 (
Russell Island), Deputy President Forgie noted the
following in the context of section 15(2)(b) of the FOI Act.
The paragraph recognises the difficulties which often face a person, who may know
very little about the administration of government, in describing documents with great
exactitude. Consequently, it does not require precise descriptions. It also recognises
that there are different levels of knowledge within an agency about particular subject
matters and so links the degree of information required to be given with a "responsible
officer". Although it is not necessary to decide what qualities are necessary in a
"responsible officer", I have, for the purpose of these proceedings, taken him or her to
be a person with knowledge of the subject area indicated by the reques
t4.
28. In this regard, we argue that the Agency’s Veterans Branch, the area of the Agency with
the necessary knowledge of the particular subject area relevant to the Applicant’s
request were consulted (
Attachment D). The Agency’s Veterans Branch were the
business area who requested clarification of the Applicant’s request, which would enable
them to search and retrieve the necessary and relevant documents.
29. As a result, and on 17 November 2023, the Agency sought clarification from the
Applicant on the issues identified by the Agency’s Veterans Branch, and which would
have enabled them to search and retrieve the documents relevant to the Applicant’s
request. Unfortunately, the Applicant refused to engage and requested the Agency
“
either made a decision and provide the documents or provide a practical refusal so I
can ask OAIC to review the matter” (
Attachment E).
30. As the Applicant was unwil ing to provide clarification, which would enable the Agency
to determine which other business areas are relevant to the request, or any
information which might assist in identifying the documents or storage locations of the
documents within the scope of his request, the Agency submits the Applicant’s request
does not satisfy the requirement in section 15(2)(b) of the FOI Act (identification of
documents) and, as such, it is reasonably open to the Agency to refuse the Applicant’s
request in accordance with s 24(1) of the FOI Act.
Section 24 of the FOI Act – Power to refuse request – processing of the documents would
substantially and unreasonably divert the resources of the Agency
31. While, in the first instance, the Agency submits that the correct and preferable decision
is that a practical refusal reason exists in relation to the Applicant’s FOI request under
section 24AA of the FOI Act as the requirement set out in section 15(2)(b) of the FOI Act
has not been satisfied, and the Agency is unable to determine the documents within the
scope of the Applicant request, the Agency submits that should OAIC determine that the
Applicant’s request is clear enough to process, and therefore meets the requirement set
out in section 15(2)(b) of the FOI Act, the Agency argues that the processing of this
request, a practical refusal reason would stil exist as the work involved in processing
the Applicant’s request would substantial y and unreasonably divert the resources of the
agency from its other operations under section 24(1)(a)(i) of the FOI Act.
32. The Agency submits that section 15(2)(b) of the FOI Act leaves the responsible officer
to make a judgment of a broad discretionary kind, as to whether the information given
was ‘reasonably necessary…to identify’ the documents sought. As noted in
Cunliffe v
Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77, the emphasis
4
Russell Island Development Association Inc and Department of Primary Industries and Energy
[1994] AATA 2, 33
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on ‘identification’ informs the approach to be taken to what is ultimately a discretionary
evaluation
.5
33. Given that the Applicant refused to identify or provide further information in respect of
the documents in which he sought access to, the Agency states that if it was to take a
broad approach to the Applicant’s request, and while potentially relevant documents
may be excluded from the search, the work involved in processing the request would
substantially and unreasonably divert the resources of the agency from its other
operations under section 24AA(1)(a)(i) of the FOI Act.
34. With respect to the practical refusal reason of a substantial and unreasonable diversion
of Agency resources, paragraph 3.117 of the FOI Guidelines sets out matters additional
to those listed in section 24AA(2) of the FOI Act that may be relevant in deciding if a
practical refusal reason exists, including:
• 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; and
• whether there is a significant public interest in the documents requested.
Substantial diversion of agency resources
35. The Agency relies upon information and estimates provided by subject matter experts
across the Agency in relation to the request for documents. The Agency’s Veterans
Branch, having taken a broad view of the request, and without having knowledge of all
the documents the Applicant is seeking, identified potentially 900 documents within the
scope of the request, and relevant to the aspect of the request that were discernible.
The number of pages associated with these 900 documents is not yet known.
36. The Agency therefore submits that based on the calculations provided to the
Information Commissioner on 28 March 2024, it should be found that the request, if
processed on the information with was discernible, would entail a
substantial
diversion of the Agency’s resources. The
total processing time is estimated to be
more than
201 hours.
37. It is important to note that this estimate of processing time is very conservative, and only
encompasses examining time, decision making time, consultation hours and decision-
making time. It does not take into account the time it would take to retrieve the
documents that are clearly identifiable. Furthermore, additional time would be needed
depending on how many pages are attached to each of the 900 identified documents,
and other documents that may be ascertained if the Applicant was to provide clarity as
requested.
5
Cunliffe v Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77, 29.
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38. In
United Firefighters Union of Australia Aviation Branch and Airservices Australia [2020]
AICmr 4 (20 January 2020), the IC noted at [39] that:
In previous IC review decisions, it has generally been accepted that between 30
seconds to 5 minutes per page is a reasonable estimate of the time required for an
agency to both assess and edit (redact) documents, except where the documents
contain a substantial amount of sensitive information. Generally, where it has been
accepted that an estimate at the higher end of that range is reasonable, the
documents at issue have been complex or sensitive.
39. The FOI team has not yet seen a copy of the documents and therefore cannot provide
any indication of the types of redactions needed, however, the Agency does note that a
minimum of 40 consultations would be required with Federal, State and Territory
partners as part of processing the Applicant’s request. Consultation is required as these
Federal, State and Territory partners are joint signatories to the documents identified
within the scope of the Applicant’s request, and their agreement, or comments on
release of the documents would need to be factored into any decision made by the
Agency.
Unreasonable diversion of agency resources
40. Pursuant to section 24AA(2) of the FOI Act and paragraph 3.117 of the FOI Guidelines,
the following factors indicate the Applicant’s request represents an unreasonable
diversion of the Agency’s resources:
•
The request would cause significant resources within the Agency to be diverted
from their business-as-usual work to search for and retrieve documents within the
scope of the request. This does not include time required by business areas not
consulted about the request, nor does it include the time required by an FOI officer
to process the request.
•
The expertise of the staff from potentially multiple business areas is required due
the unclear nature of the Applicant’s request, which has subsequently caused
undue complexity of the subject matter.
•
The estimated hours required to process the discernible portions of the request,
equates to an individual staff member working full-time, in excess of 27 days, to
process the request. Again, this processing time wil be enlarged if the Applicant
clarifies the scope of his request, or what is meant by certain terms within his
request.
•
Processing the Applicant’s request would divert resources from processing other
FOI requests, noting the Agency has receives over 400 FOI requests per month.
•
The Applicant has been provided the opportunity, and assistance, to revise his
request; however he refused to do so. The Agency has been as assistive as
possible throughout this process.
41. In
Urquhart; Chief Executive Officer, Services Australia and [2021] AATA 1407, the
Tribunal found that where an Applicant ‘did not appear to be particularly flexible in further
limiting his request’, this was a ‘relevant factor’ for the Tribunal in finding the diversion
was unreasonabl
e6.
6
Urquhart at [65]-[66]
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42. In
‘RW’, the Information Commissioner affirmed the Agency’s finding that a practical
refusal reason existed in circumstances where:
the applicant has taken limited steps to reduce the scope such that a practical refusal
reason ceased to exist. In circumstances where the request is substantial, these
considerations go to the issue of the unreasonableness of the processing burden on
Services Australi
a7.
43. The Agency submits that as in ‘
RW’, the Applicant has taken limited steps to
meaningfully consult with the Agency about the scope of this FOI request to the extent
that the practical refusal reason ceases to exist. The Applicant’s correspondence in the
original decision highlights the difficulties the Agency is facing in eliciting a meaningful
response on which the Agency could reasonably rely to progress the current FOI
request. The Agency has chosen not to engage further with the Applicant during the
course of the Information Commissioner review so as not to enflame the Applicant
further given that the last response received from the Applicant indicated that they only
wished to engage with OAIC.
44. The Agency submits that in light of the above, the Applicant has not been genuinely
open to revising the scope of this request and does not appear open to further
meaningful engagement to refine the scope of his FOI request such that the practical
refusal reason is removed.
45. In summary, we submit:
•
The Applicant’s request is unclear, and the Agency is not able to clearly discern
the specific documents in which they are required to search for, or are within the
scope of the Applicant’s request;
•
Further, and or in the alternative, should a broad view of the Applicant’s request
be taken, it would substantial y and unreasonably divert Agency resources as
described above, or be incomplete as the Agency is unable to determine what
documents are being requested;
•
That the correct and preferable decision is for OAIC to affirm the Agency’s
decision that is that a practical refusal reason exists in relation to the Applicant’s
FOI request under section 24AA of the FOI Act as the Agency has been unable
to identify the entirely of the documents in which the Applicant is seeking, and
therefore the requirement set out in section 15(2)(b) of the FOI Act has not been
satisfied;
•
Further, and or in the alternative, should OAIC determine that the Applicant’s
request is clear enough to process, and therefore meets the requirement set out
in section 15(2)(b) of the FOI Act, the Agency submits that the Agency would be
required to take a broad view of the Applicant’s request, and a practical refusal
reason would exist as the work involved in processing the Applicant’s request
would substantially and unreasonably divert the resources of the agency from its
other operations under section 24(1)(a)(i) of the FOI Act.
7
RW’ (n 3) at [82]
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Further comments
46. The OAIC may provide a copy of these submissions and
Attachments A - G to the
Applicant.
47. However, we do not consent to
Attachments H being provided to the Applicant.
48. Should you have any enquiries concerning this matter, please contact me via email at
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Sonya
FOI Practitioner
Freedom of Information Legal Team
Legal Services Division
Services Australia
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