On 22 August 2025, I conducted a consultation with you in accordance with
s 24AB of the FOI Act, pausing the statutory period for processing your request.1
On 26 August 2025, you responded with a revised scope. As the statutory period
was paused for a period of 5 days, the legislated timeframe expires on 10
September 2025.
Decision
Following consultation with you in accordance with s 24AB of the FOI Act, I have
decided to refuse access to the documents you requested under s 24(1) of the FOI
Act because a ‘practical refusal reason’ still exists under s 24AA of the FOI Act.
I am satisfied that the work involved in processing your request will substantially
and unreasonably divert the OAIC’s resources from its other operations due to the
volume of material potentially falling within scope of your request.
Reasons for decision
Request consultation process
On 6 August 2025, you made an FOI request seeking access to the following:
For the period since 1 January 2025 I am requesting all information, text
messages, teams chats and emails that mention, consider or discuss the
following:
- the FOI requests made regarding the General manager RAD role
- internal consultations regarding the release
- the responses to the FOIs including any internal communication
plans, public statements
- any planned or expected recruitment, both temporary and
permanent for all APS and Exective/SES positions
I accept that some of this request will include duplicates and I am
happy for these to be excluded. I also accept that sta names will be
redacted where appropriate.
Under s 24(1) of the FOI Act, 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, the agency or Minister:
1 See, in particular, s 24AB(8) of the FOI Act.
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(a) must undertake a request consultation process; and
(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.
For the purposes of s 24, a practical refusal reason exists in relation to a request if:
• the work involved in processing the request will substantially and
unreasonably divert the resources of the OAIC from its other operations (s
24AA(1)(a)(i)).
On 22 August 2025, I consulted with you under s 24AB of the FOI Act, because the
work involved in processing your request would substantially and unreasonably
divert the resources of the OAIC from its other operations due to its size and scope
(s 24AA(1)(a)(i)).
I advised that I intended to refuse your request unless the terms of your request
are revised so as to remove the practical refusal reason.
You were given an opportunity to revise your request, with 14 days to respond in
writing, doing one of the things below:
• withdraw your request
• make a revised request
• tell us that you do not wish to revise your request.
In my consultation letter, I suggested the following for your consideration:
There are a number of ways that you can reduce the scope of your request
so as to remove the practical refusal reason. These include limiting or
revising the scope of your request by:
• narrowing the terms of your request to a document category (e.g.
email correspondence or internal briefing documents) or to a
particular timeframe such as from the date the FOI requests were
made
• further clarifying the kinds or types of information that you are
seeking access to
• narrowing the scope of your request to communication between
specific individual sta members
• only include documents created after or between certain date
ranges
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• consider removing the documents at issue in the previous FOI
requests and documents responsive to part 4 of the request
On 26 August 2025, you revised the scope of your request to:
For the period since 1 January 2025 I am requesting text messages, teams
chats and emails between any member of the OAIC and other government
employees that mention, consider or discuss the following:
− the FOI requests made regarding the General manager RAD role
− internal consultations regarding the release
− the responses to the FOIs including any internal communication plans,
public statements
− any planned or expected recruitment, both temporary and permanent for
all APS and Executive/SES positions
I agree to the exclusion of the applications and resumes of individuals,
procedural information regarding the organising and scheduling of
interviews and selection committee reports.
I trust this addresses your concerns regarding the scope of the request and
the OAIC will be in a position to respond and release documents informing
full.
This revised scope is the scope on which my decision is based.
Materials taken into account
In making my decision, I have had regard to the following:
• your freedom of information request of 6 August 2025
• consultation with the relevant line areas (People & Culture, Finance)
• my consultation notice to you dated 22 August 2025
• your response to the consultation dated 26 August 2025
• the FOI Act
• the Guidelines issued by the Australian Information Commissioner under
s 93A of the FOI Act to which regard must be had in performing a function or
exercising a power under the FOI Act (FOI Guidelines).
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Practical refusal reasons
Calculation of the processing time – substantial diversion
I have taken into consideration your revised scope as excluding “…
applications
and resumes of individuals, procedural information regarding the organising and
scheduling of interviews and selection committee reports…”.
However, this partial narrowing of the scope would still require extensive searches
to be undertaken across the OAIC and I believe that grounds for a practical refusal
have not been removed.
To provide an illustrative example: in many circumstances, recruitment decisions
begin with discussions between staƯ members on the potential need for
recruitment or options for filling a vacancy, for example, acting staƯ up, or
reviewing the current structure to see whether there are other operational
considerations that may need to be made. This correspondence does not always
traverse People and Culture Branch (P&C), nor is it required to. It is not uncommon
to have discussions about recruitment at micro level within a business area about
how to fill a vacancy, or planning ahead, that does not require input from P&C.
Noting that item 4 of the request specifically requests correspondence involving
any member of the OAIC, and given the subject matter of that item, consultation
would have to take place across nearly all, if not all, staƯ to search for documents
relating to “…
any planned or expected recruitment, both temporary and
permanent for all APS and Executive/SES positions”
There would potentially be thousands of documents relating to the recruitment
management of an agency with approximately 180 personnel. P&C have advised
that we have recruited, or planned to recruit, approximately 45 positions since 1
January 2025 to date.
To capture all the recruitment processes, we would need to undertake searches
not only with the hiring managers, chairs, panel members and delegates, but also
with input from others in the team about the general operations of a team (at an
informal level) about potential temporary and permanent recruitment, for
example, discussion of high demand or increasing workload due to changing
priorities and temporary coverage of positions.
Further, there are (now former) staƯ who have left since 1 January 2025 who would
have been part of discussions and corresponding in some way about “…
any
planned or expected recruitment, both temporary and permanent for all APS and
Executive/SES positions”.
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To adequately satisfy your request, we would need to review all ceased staƯ since
1 January and then filter to whether they participated in any recruitment related
activities (that P&C was aware of).
Searches would need to be undertaken of their personal Outlook folders to
definitively know whether they engaged in recruitment-related discussions.
In summary, to respond to that part of your scope, we would need to undertake an
all-OAIC staƯ search for documents over a period of around 7 months and also
undertake searches in relation to any ex-OAIC staƯ over the same period.
On this basis, I believe that your revised scope does not remove practical refusal
grounds so as to adequately and accurately provide all information you are
requesting.
Noting the above, it is diƯicult to estimate how long it would take to process your
request. I have estimated that the OAIC would need to consult a minimum of
approximately 180 members of staƯ for searches of correspondence over a period
of around 7 months. I have used this as a basis for my calculations.
At a conservative estimate, if even only 140 members of staƯ undertook searches
for thirty minutes, this would require a total of 70 hours of OAIC staƯ time.
Noting P&C’s advice that there have been at least 45 recruitment rounds since 1
January 2025, and their advice that each recruitment round would have a
minimum of 3 – 10 documents, the minimum expected number of documents
falling within scope would be between 135 and 450 documents, containing any
number of pages.
Based on a conservative assessment of average FOI processing time, I estimate
that it would take between 10 and 15 minutes to examine and assess each
document for potential release, taking into consideration the FOI Act exemption
provisions.
I estimate the processing time for searching and examining documents in relation
to item four alone
− any planned or expected recruitment, both temporary and
permanent for all APS and Executive/SES positions - would require a minimum of
92.5 to 182.5 hours.
This estimate does not take into account the additional time that would be
required for searches to be undertaken of ex-employee’s Outlook and Microsoft
Teams messages.
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Additional sampling was undertaken by the FOI team to determine the estimated
time to process items 1 – 3 of your request. A sample of 10% of documents
meeting items 1 – 3 of the request held by the FOI team was undertaken.
This sampling consisted of 13 documents, totalling 511 pages. To calculate the
expected amount of time needed to process items 1 - 3 of the request, the average
number of pages (39) was multiplied by the number of documents held by the FOI
team (123), totalling an estimated 4,797 pages of documents. To account for
anticipated duplicate documents, this number was reduced by 20% to 3,837
pages.
The estimated time to collate documents, convert them to PDF format and remove
duplicate documents, at a minimum of 10 minutes per document, is a total
minimum of 1,230 minutes, or 20.5 hours.
Following examination during sampling, the documents were identified as
including material that would need to be assessed as being potentially exempt
under the following sections of the FOI Act:
-
s 47F [personal privacy]
-
s 47E(c) [management of personnel]
-
s 47E(d) [certain operations of agencies]
Noting this, the estimated time to review 3,837 pages, at 5 minutes per page, is
19,185 minutes or 319.75 hours.
Additionally, the time to draft a statement of reasons and Schedule of Documents
is estimated at take at least 8 hours.
Taking the above into account, the total estimated time to process items 1 – 3 of
your request is an approximate minimum of 349 hours.
I consider that a minimum of 441.5 – 531.5 hours to process the request as a
whole would be a substantial diversion of the OAIC’s resources, for the purposes
of s 24AA(1)(a)(i) of the FOI Act.
Unreasonable diversion of resources
An estimate of processing time is only one of the considerations to be taken into
account when deciding whether a practical refusal reason exists. As well as
requiring a request to substantially divert an agency’s resources, s 24AA of the FOI
Act also requires the request to unreasonably divert an agency’s resources from
its other functions before it can be refused under s 24.
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The Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (FOI Guidelines) identify matters that may be relevant when deciding
whether processing the request will unreasonably divert an agency’s resources
from its other functions. These include:
• the staƯing resources available to the OAIC for FOI processing
• the impact that processing the request may have on other tasks and
functions of the OAIC
• whether an applicant has cooperated in revising the scope of the request
• whether there is a significant public interest in the requested documents
• other steps taken by an agency or minister to publish information of the
kind requested by an applicant.
The OAIC is a relatively small agency with limited resources and a limited number
of staƯ available to process FOI requests of this size and nature. I consider that
processing a request of this size would substantially impact on the OAIC’s
operations because it would require the OAIC to consult a minimum of
approximately 140 members of staƯ, including staƯ who work across the OAIC’s
regulatory functions in privacy and FOI.
In these circumstances, noting that your request will require at least 441.5 – 531.5
hours to process, it is likely that the processing of your request would divert OAIC
staƯ away from their other work, including the OAIC’s:
• ability to process its ongoing FOI request load
• regulatory functions in both FOI and privacy, which include privacy
complaints and Information Commissioner reviews
• the functions of the People and Culture Team noting the nature of the
documents and the work involved in processing part 4 of the request
• activities set out in the OAIC’s Corporate Plan.
For these reasons I have formed the view that processing your request would
substantially impact the OAIC’s operations.
I also consider that the processing of your request would be an unreasonable
diversion of the OAIC’s resources.
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I have also taken into consideration relevant decisions from the former
Administrative Appeals Tribunal (AAT).
I note that paragraph [101] of
VMQD and Commissioner of Taxation (Freedom of
information) [2018] AATA 4619 confirmed that what constitutes a practical refusal
ground will be agency dependent.
The recent decision of
Chief Executive O icer, Services Australia v Urquhard
[2021] AATA 1407, provides a detailed summary of relevant decisions in respect of
section 24AB consultations, and found that the processing of a request for
personal information which would account for over 118 hours (or three weeks) of
work by one full-time FOI employee was both substantial and unreasonable in the
context of the second largest FOI agency in the Commonwealth. The Tribunal also
noted the broad terms of the request and that the FOI Applicant was not
particularly flexible in limiting his request during the consultation process.
I also had regard to the decision of
Tate and Director, Australian War Memorial
[2015] AATA 107, another smaller agency of a similar size to the OAIC, in which the
AAT aƯirmed a decision by the Australian War Memorial to refuse access to
documents for a practical refusal reason. In making its decision, the AAT
considered not only the size of the Australian War Memorial (which employs 330
full-time equivalent staƯ) but also that at the time the request was made the
corporate priority of the Australian War Memorial was to prepare for and deliver on
the Centenary of ANZAC and First World War commemorations. In this context,
processing the request was considered to involve a substantial and unreasonable
diversion of the Australian War memorial’s resources. In that matter, the AAT also
considered that the Australian War Memorial had acted reasonably in relation to
the applicant’s requests and had cooperated with him to a significant extent by
providing documents in response to informal requests.
Having regard to the above time estimates and the advice received from P&C in
relation to the processing of your request, I consider that a minimum of 441.5 –
531.5 hours to process your FOI request would be a substantial and unreasonable
diversion of the OAIC’s resources from its other operations.
Conclusion
On the basis of the above considerations, I have found that:
• the processing of your FOI request would substantially and unreasonably
divert the resources of the OAIC from its other operations (s 24AA(1)(a)(i))
Accordingly, I have decided to refuse your request on the basis that a practical
refusal reason remains in relation to your FOI request.
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Further information
As advised to you above, it is open to you to make a fresh request with a scope that
would not be an unreasonable burden for us to process and we would be happy to
assist you to do this.
Again, options include separating your requests according to topic and/or to make
a series of staggered requests. That would assist us to manage your request/s
more easily. We would be happy to call you, if you provide a contact number, or to
take a call from you if you prefer, or to discuss further revision of your scope in
email correspondence.
Your review rights are outlined on the following page.
Yours sincerely
Justin Lodge
A/g General Manager, Privacy Case Management
Information Rights Division
OƯice of the Australian Information Commissioner
9 September 2025
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an oƯicer
of the OAIC who was not involved in or consulted in the making of my decision. If
you wish to apply for an internal review, you must do so in writing within 30 days.
There is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted by email to xxx@xxxx.xxx.xx.
Alternatively, you can submit your application by Post to:
OƯice of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001.
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Reviews Tribunal (ART).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review
decision.
It is the Information Commissioner’s view that it will usually not be in the interests
of the administration of the FOI Act to conduct an IC review of a decision, or an
internal review decision, made by the agency that the Information Commissioner
heads: the OAIC. For this reason, if you make an application for IC review of my
decision, and the Information Commissioner is satisfied that in the interests of
administration of the Act it is desirable that my decision be considered by the ART,
the Information Commissioner may decide not to undertake an IC review.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
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Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=I
CR_10
Alternatively, you can submit your application by email to xxxxx@xxxx.xxx.xx, or via
Post to:
OƯice of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
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