If not delivered return to PO Box 7820 Canberra BC ACT 2610
22 March 2018
Our reference: LEX 35004
Mr Justin Warren
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Warren
Decision on your Freedom of Information request
I refer to your revised request, dated 11 March 2018 and received by the Department of
Human Services (
department) on the same date, for access under the
Freedom of
Information Act 1982 (
FOI Act) made in the following terms:
1. Any and all IPS registers that contain the title of operational documents contained
within the scope of my original request [all documents on the
operational.humanservices.gov.au website currently marked ‘potentially FOI
exempt’] to which an exception applies and the reason(s) it was not published
under the IPS, as per [13.72] of the FOI Guidelines.
2. All documents contained within the scope of my original request [all documents on
the operational.humanservices.gov.au website currently marked ‘potentially FOI
exempt’] whose title is NOT contained within the IPS registers of point 1.
The underlying assumption here is that the documents in point 2 do not exist in
IPS registers because no exception applies to them and they should therefore be
published under the IPS.
My decision
Section 24(1) of the FOI Act provides that if, after a consultation process, an agency is
satisfied that a practical refusal reason still exists, the agency may refuse to give access to
the document in accordance with the request
Section 24AA(1)(a)(i) of the FOI Act provides that a practical refusal reason exists in relation
to an FOI request if the work involved in processing the request would substantially and
unreasonably divert the resources of the department from its other operations.
I have decided to refuse your request under section 24(1) of the FOI Act because, following
the request consultation process pursuant to section 24AB of the FOI Act, a 'practical refusal
reason' still exists under section 24AA of the FOI Act. I am satisfied that section 24AA(1)(a)(i)
of the FOI Act applies, in that the work involved in processing your request would
substantially and unreasonably divert the resources of the department from its other
operations.
The reasons for my decision, including the relevant sections of the FOI Act, are set out in
Attachment A.
PAGE 1 OF 9
You can ask for a review of my decision
If you disagree with my decision, you can ask for a review. There are two ways you can do
this. You can ask for an internal review from within the department, or an external review by
the Office of the Australian Information Commissioner. You do not have to pay for reviews of
decisions. See
Attachment B for more information about how arrange a review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx
Yours sincerely
Alice
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
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Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
REASONS FOR DECISION
Your request
On 16 February 2018, you made a request for access under the FOI Act in the following
terms:
A copy of all documents on the operational.humanservices.gov.au website currently
marked ‘potentially FOI exempt’ with boilerplate text of the following form:
The guideline you have requested is potentially FOI exempt.
You have a right to apply for the document through FOI legislation.
You can request a copy from the department's Information Publication
Scheme by:
sending an email to xxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx.xx
or writing to us at:
Freedom of Information
FOI and Information Release Branch
PO Box 7820
Canberra Mail Centre ACT 2610
On 2 March 2018, I wrote to you providing a notice of intention to refuse your request under
section 24AB(2) of the FOI Act on the basis that a practical refusal reason existed. The
quantity of documents within the scope of your request was voluminous, hence processing
your request would substantially and unreasonably divert the resources of the department
from its other operations.
I gave you an opportunity to consult with the department to revise your request so as to
remove the practical refusal reason. Specifically, I suggested that you may wish to consider
narrowing the scope of your request to a specific operational process or policy.
On 11 March 2018, you revised your request to the following terms:
1. Any and all IPS registers that contain the title of operational documents contained
within the scope of my original request [all documents on the
operational.humanservices.gov.au website currently marked ‘potentially FOI
exempt’] to which an exception applies and the reason(s) it was not published
under the IPS, as per [13.72] of the FOI Guidelines.
2. All documents contained within the scope of my original request [all documents on
the operational.humanservices.gov.au website currently marked ‘potentially FOI
exempt’] whose title is NOT contained within the IPS registers of point 1.
The underlying assumption here is that the documents in point 2 do not exist in
IPS registers because no exception applies to them and they should therefore be
published under the IPS.
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What I took into account
In reaching my decision I took into account:
your original request dated 16 February 2018 and your revised request dated
11 March 2018;
other correspondence between the department and you in relation to this request;
the documents that would fall within the scope of your request;
consultations with departmental officers about:
o the nature of the documents; and
o the department's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (
Guidelines);
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
Following the request consultation process outlined above, in accordance with section 24AB
of the FOI Act, I am satisfied that a practical refusal reason still exists in that the work
involved in processing your request would substantially and unreasonably divert the
resources of the department from its other operations. The reasons for my decision, including
consideration of the factors I am required to take into account in section 24AA(2), are
outlined below.
Practical refusal reason
Section 24AA of the FOI Act provides that a practical refusal reason exists in relation to a
request for a document if the work involved in processing the request would substantially and
unreasonably divert the resources of the agency from its other operations.
The word 'substantial' has previously been interpreted to mean severe, of some gravity, large
or weighty or of considerable amount, real or of substance and not insubstantial or of
nominal consequence. The use of the word 'unreasonable' has been interpreted to mean that
a weighing of all relevant considerations is needed, including the extent of the resources
needed to meet the request.
In determining whether processing the request would substantially and unreasonably divert
the department's resources, section 24AA(2) requires me to have regard to the resources
that would have to be used for the following:
identifying, locating or collating the documents within the filing system of the
department;
deciding whether to grant, refuse or defer access to a document including resources
used for examining the document and consulting with any person or body in relation
to the request;
making a copy or an edited copy of the document; and
notifying of any decision on the request.
PAGE 4 OF 9
Department of Human Services
In accordance with section 24AA(3), I did not consider your reasons for requesting access to
the documents.
Why your request is substantial
In making my decision, I estimated that over 200 hours of search and retrieval time would be
required to process the part of your request for ‘any and all IPS registers that contain the title
of … all documents on the operational.humanservices.gov.au website currently marked
‘potentially FOI exempt’ to which an exception applies and the reason(s) it was not
published’. This excludes the time required to examine the documents and apply redactions,
where necessary.
The operational.humanservices.gov.au website contains the department’s operational
information documents (
Operational Blueprints), which are
published (i.e. publicly
available) by the department under its Information Publication Scheme (
IPS) as required
under the FOI Act. It also identifies those Operational Blueprints that are not publicly
available.
I consulted the department’s Business Processing Branch (
Branch) in relation to your
request. As advised to you in the consultation letter dated 2 March 2018, the Branch is
responsible for authoring, editing and publishing operational information for staff and
customers in collaboration with responsible business areas across the department.
The Branch advised that there is no single document that lists the titles of Operational
Blueprints currently marked ‘potentially FOI exempt’ on the
operational.humanservices.gov.au website, or the reasons why they have been marked as
such.
Whilst the operational.humanservices.gov.au website has a search function for Operational
Blueprints marked ‘potentially FOI exempt’ (and which identifies 3,000 documents marked as
such), it does not identify the specific provision under the FOI Act that contains the applicable
exemption. Documents that contain this information would be held by the business areas that
are responsible for each of the Operational Blueprints.
I am advised by the Branch that there are over 200 business areas that are responsible for
Operational Blueprints. This means to process your request, the department would likely
have to consult all of these 200 business areas. Allowing a conservative estimate of 1 hour
per business area (noting that each business area may be responsible for several
Operational Blueprints and may therefore take more than an hour to search for the relevant
documents), over 200 hours of search and retrieval time would be required to locate the
documents you are seeking in relation to this part of your request. This does not include the
time that would be required to review and consider any exemptions that may apply to the
documents.
In my consultation letter, I suggested that you consider narrowing your request to documents
containing operational information regarding one particular business area or topic. However,
your revised request did not do so.
This means that it would be necessary to consult all business areas within the department
that have responsibility for Operational Blueprints in order to identify whether they hold the
documents you have requested. This is because the department does not maintain a
separate register that lists the Operational Blueprints that are publicly available and those
that are not publicly available. Therefore, for the reasons given above, processing this part of
your request would result in a significant diversion of departmental resources.
PAGE 5 OF 9
Department of Human Services
Why your request is unreasonable
For the purposes of deciding whether your request would unreasonably divert the resources
of the department from its other operations, I considered whether the substantial resource
burden would be unreasonable, having regard to the fact that one departmental staff member
would be required to spend over five weeks of time to process the part of your request for
‘any and all IPS registers that contain the title of … all documents on the
operational.humanservices.gov.au website currently marked ‘potentially FOI exempt’’.
The department receives approximately 300-400 FOI requests per month, the majority of
which are requests from people seeking their own information. I am satisfied that the
processing of this part of your request would divert departmental resources from the
processing of its other FOI requests.
In making this finding, I have given weight to the significant possibility that a narrowed scope
of request could satisfactorily meet your legitimate interest in seeking access to documents
concerning operational information of the department.
Therefore a practical refusal reason still exists in relation to this part of your request.
Paragraph 3.126 of the Guidelines provides that the department cannot undertake a
consultation process in relation to all of the requested documents and then, if the applicant
does not withdraw or revise the request, unilaterally decide to give access under the FOI Act
to some of the requested documents and refuse access to others on practical refusal
grounds. In
‘AR’ and Australian Federal Police [2013] AICmr 80 (
AR), Freedom of
Information Commissioner Popple held that:
The FOI Act does not allow an agency to process an FOI request by refusing access
to some documents on the basis of practical refusal, then processing the remaining
documents.
I consider that paragraph 3.126 of the Guidelines applies to your request, on the basis that:
I undertook a consultation process in relation to all of the requested documents
as a practical refusal reason existed; and
one part of your revised request still gives rise to the practical refusal reason.
AR is analogous to your request in that the department is not able to refuse access to some
documents that are within the scope of the first part of your request on the basis of a
practical refusal reason, then process the remaining parts of your request. Accordingly, I
have decided to refuse your request in full, on the basis that a practical refusal reason exists.
Section 8(2)(j) of the FOI Act and paragraph 13.72 of the Guidelines
In your correspondence, you suggested that the department has not complied with its
obligations under section 8(2)(j) of the FOI Act (IPS) by not publishing all of its operational
information. You also referred to paragraph 13.72 of the Guidelines, which states:
Where information is not published because an exception applies, agencies may
record this in an IPS information register, including the title of the document to which
an exception applies and the reason it was not published under the IPS (see [13.20]
above on information registers). Capturing this information may help an agency if it
needs to respond to any complaints to the Information Commissioner about its IPS
compliance.
PAGE 6 OF 9
Department of Human Services
For those Operational Blueprints that have been marked as ‘potentially FOI exempt’, you
contended that the department has claimed ‘some form of FOI exemption … without
providing any details of what that exemption is’.
Although your above contentions were not factors that I have taken into account in my
decision to refuse your request under section 24(1) of the FOI Act, I have taken this
opportunity to address these issues.
Section 8(2)(j) of the FOI Act is subject to section 8C of the FOI Act, which provides that an
agency is not required to publish exempt matter. In my view, those Operational Blueprints
that are not publicly available on the operational.humanservices.gov.au website contain
exempt matter (which is why they have been marked as potentially FOI exempt’), which
means that section 8C of the FOI Act applies so that the department is not required to
publish them.
The use of the word ‘may record’ in paragraph 13.72 of the Guidelines means that it is not
mandatory for agencies to comply with those provisions. Nevertheless, the department’s
operational.humanservices.gov.au website is broadly consistent with paragraph 13.72 of the
Guidelines, on the basis that it identifies the title of the Operational Blueprint that is not
published and states that is not published because it is potentially exempt under the FOI Act.
Conclusion
In summary, I am satisfied that the work involved in processing part of your request would
substantially and unreasonably divert the resources of the department from its other
operations, namely the processing of other FOI requests and the delivery of social services
to all Australians more broadly.
I have found that a practical refusal reason still exists in relation to your request for access to
the documents. Accordingly I have decided to refuse your request under section 24(1) of the
FOI Act.
PAGE 7 OF 9
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of an FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (the department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing;
made within 30 days of receiving this letter; or
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
PAGE 8 OF 9
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request.
Include your contact details.
Set out your reasons for objecting to the department's decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency in
the exercise of powers or the performance of functions under the FOI Act, There is no fee for
making a complaint. A complaint to the Information Commissioner must be made in writing.
The Information Commissioner's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Ombudsman concerning action taken by an agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee for
making a complaint. A complaint to the Ombudsman may be made in person, by telephone
or in writing. The Ombudsman's contact details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 9 OF 9
Department of Human Services
