18 February 2019
Nishadh Rego BY EMAIL: [FOI #5237 email]
In reply please quote:
I refer to your email dated 31 January 2019, in which you request access to documents held by
the Department of Home Affairs (the Department) under the Freedom of Information Act 1982
(the FOI Act).
I am writing to tell you that I intend to refuse your request on the basis that a practical refusal
reason exists. However, before I make a final decision to do this, you have an opportunity to
revise your request to remove the practical refusal reason. This is called a ‘request consultation
’. You have 14 days to respond to this notice in one of the ways set out below.
Scope of Request
You have requested access to the following:
Any departmental guidelines, directives, briefing papers, decision records, email
correspondence, or other forms of internal communication which include reference to or
pertain to the International Treaty Obligations Assessment (ITOA).
Power to refuse request
Section 24 of the FOI Act provides that if the Department is satisfied that a practical refusal reason
exists in relation to a request, the Department must undertake a consultation process with you,
and if, after that consultation process, the Department remains satisfied that the practical refusal
reason still exists, the Department may refuse to give you access to the documents subject to the
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • www.homeaffairs.gov.au
A practical refusal reason
exists if either (or both) of the following applies:
the work involved in the processing of the request would substantially and
unreasonably divert the resources of the Department from its other operations
the request does not satisfy the requirement in section 15(2)(b) of the FOI Act,
which requires you to provide such information concerning the document you are
seeking access to, to enable the Department to be able to identify it.
Reasons for practical refusal
Your request does not seek access to a specific existing document and therefore does not satisfy
the requirements of section 15(2)(b) of the FOI Act.
A request for “all” or “any” documents held by the Department concerning a particular subject will
likely attract refusal under section 24AA of the FOI Act because it would not be possible for the
decision maker to certify that he or she has located every copy of every single document in the
Department’s possession, which falls within the scope of the request, without conducting a search
of every hard copy file and all individuals electronic communication records in the agency.
The Department would be required to divert significant resources from its current operations in
order to identify, locate and collate any
documents held within the agency that would be captured
by your request. This diversion would result in a significant drain on the resources of the area
within the agency that would be required to process this request. To process the request would
require a complete diversion from that area’s ability to carry out their normal functions and
In the circumstances, at the present time, I do not consider it would be possible for the decision
maker to certify that he or she has located every copy of every single document in the
Department’s possession, which falls within the scope of your request as it currently stands,
without conducting a search of every hard copy file and all individuals' electronic communication
records across the Service.
Request Consultation Process
To enable the Department to consider your request for access under the FOI Act, the agency will
require sufficient information concerning the specific existing document(s) you are seeking access
to, so as to enable the agency to identify the document(s).
If you wish to revise your request to specify the document(s) you are seeking access to, the
agency may be able to process your request and consider whether it holds any relevant
You now have an opportunity to revise your request to enable it to proceed.
Under section 24AB of the FOI Act, you have 14 days to respond to this notice in writing and
advise me whether:
• you wish to make a revised request;
• indicate that you do not wish to revise your request; or
• withdraw your request.
If you do not do one of the three things listed above during the consultation period (14 days) or
you do not consult the contact person listed below during this period, your request will be taken
to have been withdrawn in accordance with section 24AB(7) of the FOI Act.
Factors for consideration
The Department publishes a large number of policy documents on LEGENDcom.
Details on how
to obtain access to LEGENDcom can be located here.
You may wish to consider, in the first
instance, what information you are able to locate using that resource. I note that documents which
are made publicly available as reference material are not documents for the purposes of section
4 of the FOI Act.
You may also wish to consider limiting the scope of your request to a narrow range of documents.
At the present time, your request captures all decisions and correspondence on all files relating
to individuals where an International Treaty Obligations Assessment (ITOA) may have been
considered. This generates a number of issues for the Department. Firstly, the Department is
unable to identify which individual files may have reference to an ITOA, and it would have to
search every single individual’s file that might possibly relate. This has the potential to capture a
very large number of files that will need to be assessed for relevance. Secondly, any files that are
identified as being relevant would contain the personal information of private individuals for which
you do not appear to hold authority to act. The Department is committed to complying with its
obligations under the Privacy Act 1988, and very careful assessment would need to be made of
any such information, and regard had to section 47F of the FOI Act, prior to any decision on
access being finalised.
Finally, we note that you have not provided a timeframe around your request, and ultimately, your
request potentially captures documents across a very broad timeframe.
Noting the above, you may wish to consider:
• limiting the scope of your request to documents for a particular timeframe
• limiting the scope of your request to documents which are not already available for
reference purposes on LEGEND.com.
• limiting the scope of your request to specific documents, such as briefs to Departmental
SES officers and/or Ministers regarding non-personal matters concerning the International
Treaty Obligations Assessment (ITOA).
Should you wish to revise your request or have any questions in relation to this process, please
do not hesitate to contact us at [DIBP request email].
Assistant Director | Freedom of Information Section
FOI and Records Management Branch
Productivity and Compliance Division | Corporate and Enabling Group
Department of Home Affairs