OFFICIAL
PO Box 457
CANBERRA ACT 2601
dta.gov.au
Our ref. 180/2020
3 April 2020
Andy Johnson
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Andy,
1.
I refer to your application dated 29 February 2020 to the Digital Transformation Agency (DTA) seeking
access under the
Freedom of Information Act 1982 (FOI Act) to:
All reports / documents delivered by consulting firm McKinsey & Company to the Agency since
inception. In addition, I would like to request a copy of each invoice paid to McKinsey for each
report (including $ fees paid, rate card applied, and other commercial terms).
2.
In accordance with s 23(1) of the FOI Act, I am authorised to make a decision regarding access under
the FOI Act.
Decision
3.
I have decided to refuse access to the documents you have requested under s24(1) of the FOI Act
because I am satisfied that a ‘practical refusal reason’ still exists under s24AA of the FOI Act.
4.
The practical refusal reason is that the work involved in processing the request would substantial y
and unreasonably divert the resources of the DTA from its other operations as specified in
s24AA(1)(a)(i) of the FOI Act.
Material taken into account
•
The terms of your request
•
The searches we have conducted
•
Advice provided by the officers with relevant business knowledge
•
Relevant provisions of the
Freedom of Information Act 1983
•
Guidelines issued by the Office of the Information Commissioner
The request consultation process
5.
On 19 March 2020, the DTA wrote to give you notice of an intention to refuse your request under
s24AB(2) of the FOI Act and to give you the opportunity to consult with DTA to revise your request to
remove the practical refusal reason.
6.
In DTA’s letter to you dated 19 March, you were advised you should contact Morgan to discuss your
request to consult with a view to removing the practical refusal reason.
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7.
You did not contact the officer on the phone number provided to discuss your request but you did
respond to the notice by email on 20 March 2020, asking that the notice be subject to an Internal
Review. As there was no decision at this point, we told you that we could not conduct an Internal
Review.
8.
At the time of writing you have not responded to the concerns outlined in the s24AB(2) notice.
Reasons for my decision Practical refusal reason
9.
Section 24AA 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 been interpreted to mean severe, of some gravity, large or weighty or of
considerable amount 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 and considerations.
In determining whether processing the request would substantial y and unreasonably divert DTA’s
resources, s 24AA(2) requires me to have regard to the resources that would be needed to:
— Identify, locate or collate the documents within the filing system of DTA
— Decide 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
— Make a copy or an edited copy of the document, and prepare a decision on the request.
10.
The reasons for my decision, including consideration of the factors I am required to take into account
in s24AA(2), are outlined below.
Request is substantial
11.
Following our electronic searches of documents, I have identified 98 documents totalling 793 pages
relevant to your request as presently framed. I estimate that retrieval and processing of these
documents so they can be reviewed for decision making would require 5 hours.
12.
The nature of the documents you have requested captures deliberations and decision documents that
are likely to include commercial information.
13.
In addition to the significant volume of material that would need to be reviewed, the inherent
complexity of the material will require a detailed and careful analysis and review to make a decision. I
estimate 2 minutes per page would be required for document review and decision making. I also
estimate that consultation with up to 17 third parties would be required and would take 7 hours. It is
also reasonable to expect that a significant amount of material might require redaction to exclude
exempt parts and would require a further 2 minutes per page. Further time would be required to
prepare a decision and statement of reasons and reflect this in a schedule of documents.
14.
In total, I estimate this would require over 80 hours of processing time to deal with this request. In
other words, if one person were to dedicate themselves to processing this request ful time, it would
take them two weeks. I am satisfied that this is a 'substantial' request.
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Request is unreasonable
15.
The Administrative Appeals Tribunal in
VMQD and Commissioner of Taxation (Freedom of
information) [2018] AATA 4619 (17 December 2018) about the threshold for a practical refusal reason
where SM Puplick commented that:
[100] The Information Commissioner has noted in relation to the other element of
the test that, “whether or not disclosure would be “unreasonable” is a question of
fact and degree which calls for a balancing of all the legitimate interests involved.”
[101] What constitutes valid practical refusal grounds is thus agency specific and
resource dependent. Nevertheless for any agency, a burden in excess of 200 hours
would almost certainly make the threshold of a rational and objective test. As is
il ustrated above, burdens as (relatively) small as 74 hours have been so
characterised.
16.
In balancing the legitimate interests involved, I have considered that the substantial resource burden
would be unreasonable having regard to:
— the fact that the work involved in processing your request wil require DTA staff to be taken away
from their usual duties for a substantial period of time.
17.
In my view, the above factors satisfy a conclusion that the processing of your request would be
substantial and unreasonably divert the resources of DTA from its other operations.
18.
I am satisfied that a practical refusal reason still exists in relation to your request and have decided to
refuse it under s24 of the FOI Act on the basis that a practical refusal reason exists.
Review rights
19.
If you are dissatisfied with this decision, you have certain rights of review available to you.
20.
Firstly, under section 54 of the FOI Act, you may apply to DTA for an internal review of the decision.
Your application must be made by whichever date is the later between:
• 30 days of you receiving this notice; or
• 15 days of you receiving the documents to which you have been granted access
21.
An internal review will be conducted by a different officer from the original decision-maker. No
particular form is required to apply for review although it will assist your case to set out in the
application the grounds on which you believe that the original decision should be overturned. An
application for a review of the decision should be addressed to:
xxx@xxx.xxx.xx
22.
If you choose to seek an internal review, you will subsequently have a right to apply to the Australian
Information Commissioner for a review of the internal review decision.
Review by the Australian Information Commissioner
23.
Alternatively, under section 54L of the FOI Act, you may seek review of this decision by the Australian
Information Commissioner without first going to internal review. Your application must be made
within 60 days of you receiving this notice.
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24.
The Australian Information Commissioner is an independent office holder who may review decisions
of agencies and Ministers under the FOI Act. More information is available on the Australian
Information Commissioner's website www.oaic.gov.au.
25.
You can contact the Information Commissioner to request a review of a decision online or by writing
to the Information Commission at:
Director of FOI Dispute Resolution
GPO Box 5218
SYDNEY NSW 2001
Complaints to the Australian Information Commissioner
26.
You may complain to the Australian Information Commissioner about action taken in relation to your
request.
27.
Your enquiries to the Australian Information Commissioner can be directed to:
– Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
28.
There is no particular form required to make a complaint to the Australian Information Commissioner.
The request should be in writing and should set out the grounds on which it is considered that the
action taken in relation to the request should be investigated and identify the DTA as the relevant
agency.
Contacts
29.
If you have any queries about this notice, please contact the FOI team by email
xxx@xxx.xxx.xx.
Yours sincerely,
Lucy Poole
Head of Government Digital Experience
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Document Outline