Attachment 1 – Reasons for initial practical refusal decision
1. Material taken into account
In making my initial decision, I have had regard to the following:
a. the terms of your request;
b. the documents to which you have sought access;
c. relevant provisions of the FOI Act;
d. advice from ACARA staff with responsibility for matters relating to the documents to
which you sought access; and
e. The Australian Information Commissioner’s guidelines on FOI, version 1.5, October
2014, Part 3 (
Commissioner’s Guidelines).
2. My interpretation of your FOI request
I advise that, based on the reasons you have provided in requesting an internal review, I am
interpreting your request as covering the following categories of documents:
a.
if ACARA has discussed with anyone (staff?) if you should tell any global data repository
ever to take something down;
b. any letter, email, etc. telling someone to take something off of any website ever; and
c.
anything (email, internal memo) about checking the content from anything or everything
is the same as My School.
3. Practical refusal reason
I find that a practical refusal reason exists in relation to your request, as the work involved in
processing your request would substantially and unreasonably divert the resources of
ACARA from its other operations: s.24AA(1)(a)(i) of the FOI Act.
4. Mandatory resource factors
Relevantly, s.24AA(2) of the FOI Act provides, broadly, that without limiting the matters to
which I may have regard in deciding whether a practical refusal reason exists, I must have
regard to the resources that would have to be used for the following:
a. identifying, locating and collating the documents within the filing system of ACARA;
b. deciding whether to grant, refuse or defer access to a document to which the request
relates;
c. making a copy, or an edited copy, of the document; and
d. notifying any interim or final decision on the request.
5. Commissioner’s Guidelines
I note that under s.93A of the FOI Act I must have regard to the Commissioner’s Guidelines
in making my decision. The Commissioner’s Guidelines (paras 3.102 - 3.103) provide further
detail regarding factors that I must take into account and other matters that may be relevant
in deciding if a practical refusal reason exists. Relevantly, the Commissioner’s Guidelines
state:
“3.102 In deciding if a practical refusal reason exists, an agency or minister must have
regard to the resources required to perform the following activities specified in s
24AA(2):
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identifying, locating or collating documents within the filing system of the agency
or minister
examining the documents
deciding whether to grant, refuse or defer access
consulting with other parties
redacting exempt material from the documents
making copies of documents
notifying an interim or final decision to the applicant.
3.103 Other matters that may be relevant in deciding if a practical refusal reason exists
include [relevantly]:
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 other points]”.
I have had regard to these factors in making my decision.
6. Documents covered by your request
I note that your request is framed broadly, and covers any global data repository ever, any
website ever, and any written document checking that content is the same as
My School ever. I advise that your request comprises the following categories of documents, extending
from at least the date that ACARA started operations (May 2009) (and possibly earlier, as
ACARA holds documents kept by the former Interim National Curriculum Board):
Emails and other written correspondence between staff in the Reporting business unit,
including archived emails belonging to former staff;
Emails and other written correspondence between staff in the Board Secretariat and
between the Board Secretariat and Reporting staff, including archived emails
belonging to former staff;
Emails and other written correspondence between the Board Secretariat team and
ACARA’s external legal advisers;
Emails and other written correspondence between the Board Secretariat team and
external third parties;
Drafts of written correspondence between the Board Secretariat team and external
third parties;
Emails and other written correspondence between staff in the Reporting and Board
Secretariat teams and ACARA executives, including archived emails belonging to
former staff;
Emails and other correspondence between Reporting staff and staff employed at one
or more of the nine (9) federal and state departments of education and various state
statutory authorities responsible for test administration; and
Other briefing documents prepared to inform ACARA’s responses.
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7. Application of mandatory resource factors
7.1 Identifying, locating and collating the documents in scope
A. Scope
As your request is framed broadly, the scope of your request covers not just data, but also a
number of intellectual property matters, including (without limitation) the National
Assessment Program – Literacy and Numeracy tests, ACARA’s trademarks, the processing
of third party copyright requests, ACARA’s website URLs and domain names.
Identifying all relevant documents, under the broad categories listed above, and covering all
documents listed at heading [6], is a very large scope.
B. Relevant IT systems and software programs
I advise that identifying documents falling within this significant scope is made more difficult,
as:
some documents are located on archived network drives;
some documents are located on ACARA’s document management system (TRIM); and
some emails between staff in various business units and between ACARA staff and third
parties only sit in Microsoft Outlook, and many of these emails are archived, including
emails belonging to former staff members.
7.2 Deciding whether to grant, refuse or defer access
A. Identifying whether the documents are in scope and whether any exemptions or
conditional exemptions apply
This involves significant work, due to the large number of documents in scope. Each
document will need to be reviewed, and decisions made on the following:
whether I need to consult with third party persons or organisations concerning, broadly,
information about the business or commercial affairs of the person or organisation (refer
heading B. below);
whether relevant FOI exemptions or conditional exemptions apply (refer below);
whether each document contains information that would reasonably be regarded as
irrelevant to the request: s.22(1)(a)(ii) of the FOI Act.
Relevant exemptions and conditional exemptions in the FOI Act that may apply include:
exemption under s.42 of the FOI Act (legal professional privilege) – this may apply, for
example, to email correspondence between the Board Secretariat team and ACARA’s
external legal advisers;
conditional exemption under s.47E(d) of the FOI Act (substantial adverse effect on the
proper and efficient conduct of the operations of an agency) – this may apply, for
example, to any comments in the documents that could result in the creation of
comparative school league tables;
conditional exemption under s.47F of the FOI Act (personal privacy) – this may apply, for
example, to information concerning third parties; and
conditional exemption under s.47G of the FOI Act (broadly, business, commercial or
financial affairs of a person or organisation) – this may apply, for example, to
unauthorised use by a third party of ACARA’s trademarks or copyright materials.
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B. Consulting with third parties
If it appears that a person or organisation might reasonably wish to make a contention that a
document is conditionally exempt under s.47G of the FOI Act (broadly, business, commercial
or financial affairs of a person or organisation), I must decide if it is reasonably practicable to
give the person or organisation concerned a reasonable opportunity to make submissions in
support of the exemption contention: s.27 FOI Act. If I decide to consult, I must give regard
to any submissions that are made, in making my decision: s.27(4)(b) of the FOI Act.
If I decide to release a document (against the wishes of a person or organisation), then:
I must give notice to both the third party and yourself; and
I must not give you access to the document unless after all opportunities of the person or
organisation concerned for review or appeal have run out, the decision to give access
still stands: s.27(6) and (7) of the FOI Act.
7.3 Making a copy or edited copy of the documents
Where a decision is made to provide part of a document, and third party consultation
arrangements have been satisfied, ACARA must make an edited copy of the document. This
requires a legal officer to make redactions in the document, ensuring that only the relevant
text is redacted. The Board Secretary, and myself review the edited copies. Once approved,
copies of these edited documents are printed and collated. This involves significant work,
due to the broad scope of your request.
7.4 Notifying you of my final decision
A. Drafting the decision letter
Drafting the decision letter also involves significant work, due to the broad scope of your
request. It includes the following steps:
•
reading each relevant document again;
•
identifying the parts that require redaction;
•
reading the FOI Commissioner’s guidelines; and
•
drafting the decision.
The decision letter includes a table that identifies, for each redaction, the relevant exemption
or conditional exemption that applies. This is a time consuming process to complete, as
each redaction in all the relevant documents is cross-referenced in this table.
B. Uploading to the Right to Know website
I note that this step, of itself, is unlikely to involve substantial work. However, it is a step that
I am required to have regard to under the FOI Act. I would arrange for one of my staff to
upload the final FOI decision letter together with relevant documents (with possible
redactions) to the Right to Know website.
7.5 Estimated total number of hours involved
I estimate that the work involved in completing the mandatory steps [7.1] to [7.4] well
exceeds 60 working hours.
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8. Application of other relevant factors
Whilst the mandatory factors listed above, by themselves, support a finding that a practical
refusal reason exists in relation to your request, for completeness, I also briefly consider
some additional factors listed in the Commissioner’s Guidelines.
8.1 The staffing resources available to an agency for FOI processing
The work outlined under heading [7] would be performed by two (2) members of ACARA
staff in the Board Secretariat team. Peter Verey is a legal officer in the Board Secretariat
team, whose role includes FOI, Privacy and Intellectual Property and who reports to Peter
Matheson. Peter Matheson is Board Secretary, whose role involves managing staff with
responsibility for Board papers, Audit and Risk Committee papers, coordination of policy
advice to senior education officials and Education Council, parliamentary matters, and
providing strategic advice to the Chief Executive Officer.
8.2 The processing work requires the specialist attention of two ACARA staff who
have competing responsibilities
I advise that there is no one else in ACARA that can complete the work outlined under
heading [7]. Peter Verey and Peter Matheson are the only staff that can complete this work
and, as set out above, each has other, and competing, responsibilities.
8.3 The impact that processing a request may have on other work in ACARA,
including FOI processing
I note that your request, as it currently stands, would involve a significant amount of work by
Peter Matheson and Peter Verey. I find that performing this work would jeopardise the Board
Secretariat’s other operations, due to the fact that each of these staff have other, and
competing, responsibilities.
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