uMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=%2BThga3FjtCle0m
f6bwrMJlopKYdiO7WaysB3o%2BqYZ0g%3D&reserved=0
* AusTender CN3695712
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.tender
s.gov.au%2FCn%2FShow%2F2671b392-c6a2-411f-b132-
ee4d6b74d86f&data=04%7C01%7Clegal%40oaic.gov.au%7Cbbe0fd21f3b74c58
7bae08d89a041f5d%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7C1%7C637428
690281102412%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2l
uMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=OYE9UN%2FhEq3jG
Zlr9CLRCbEcnsz0XOsa0maNLG88FYo%3D&reserved=0
* AusTender CN3694802
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.tender
s.gov.au%2FCn%2FShow%2Fd099f04b-8669-4590-b6c4-
7d93c67d00ab&data=04%7C01%7Clegal%40oaic.gov.au%7Cbbe0fd21f3b74c58
7bae08d89a041f5d%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7C1%7C637428
690281102412%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2l
uMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=b%2FgNtlmG0UKkC
%2BncvuVoZ3RFnEN2ufW4hYJ1j5G3%2F%2FY%3D&reserved=0 and
* AusTender CN3693305
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.tender
s.gov.au%2FCn%2FShow%2F505cc6c0-15ca-44db-8c8e-
745dcced8f78&data=04%7C01%7Clegal%40oaic.gov.au%7Cbbe0fd21f3b74c58
7bae08d89a041f5d%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7C1%7C637428
690281102412%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2l
uMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=J5eN20sZ%2F5%2B
mSwUq64ka9tirfn9UAzEk3tvSkxwFnlU%3D&reserved=0 - including any
document identifying the need for $59K+ resilience development program for the
less than 100 ongoing OAIC staff members (making it roughly $600 per ongoing staff
member to teach them how to be resilient)”.
On 25 December 2020 you clarified the scope your request and confirmed that in your
request you are referring to:
• AusTender CN3717147 not AusTender CN371714.
• AusTender CN3711121 – not the hyperlink provided which goes to Contract Notice View -
CN3717147
Timeframes for dealing with your request
Section 15 of the FOI Act requires this office to process your requests no later than 30 days
after the day we receive them. However, section 15(6) of the FOI Act allows us a further 30
days in situations where we need to consult with third parties about certain information,
such as business documents or documents affecting their personal privacy. On 22 December
2020 the OAIC notified you that because your request covers documents which contain
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information concerning an organisation’s business or professional affairs and personal
information, the OAIC would be required to consult the individuals and organisations under
ss 27 and 27A of the FOI Act before making a decision on release of the documents.
Accordingly the due date for processing your FOI request was extended by 30 days.
Notice of intention to refuse your request
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
freedom of information requests.
I am writing to tell you that I believe that the work involved in processing your request in its
current form will substantially and unreasonably divert the resources of the OAIC from its
other operations due to its size and scope. This is called a ‘practical refusal reason’ (under s
24AA of the FOI Act).
On this basis, I intend to refuse access to the documents you have requested. However,
before I make a final decision to do this, you have an opportunity to revise your request. This
is called a ‘request consultation process’ as set out under s 24AB of the FOI Act. You have 14
days to respond to this notice in one of the ways set out at the end of this letter.
The 60 day period for processing your request will be stopped until we have completed this
consultation with you regarding the scope of your request. While we consider it best practice
to engage in a practical refusal consultation as early as possible, it was only after searches
for documents within the scope of your request yielded a significant number of documents
that it became apparent that it was necessary to consult with you under s 24AB of the FOI
Act.
Why I intend to refuse your request
Calculation of the processing time
I estimate it will take the OAIC at the very least
155.5 hours to process your FOI request in its
current form. This estimate is based on documents located as a result of searches completed
to date and does not include the ful suite of documents that are within the scope of your
request.
In its current form, your request is broad as it would require the OAIC to identify any
“documents” relating to AusTender CN3717147, AusTender CN3711121, AusTender
CN3700621, AusTender CN3695712, AusTender CN3694802 and AusTender CN3693305. The
term “documents” is defined in s 4(1) of the FOI Act to include any or any part of the
following:
• any paper or other material on which there is writing
• a map, plan, drawing or photograph
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• any paper or other material on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them
• any article or material from which sounds, images or writing are capable of being
reproduced with or without the aid of any other article or device
• any article on which information has been stored or recorded, either mechanically or
electronically
• any other record of information
• any copy, including any part of any copy, of a reproduction or duplicate of a thing listed
above
• individually consult with each notifying entity, as the combined information would make
each notifying entity reasonably identifiable.
On this basis, I have interpreted your request broadly to include all documents relating to
the engagement of consultants, the procurement process, human resources and information
management processes and or the services provided by the consultants in relation to
AusTender CN3717147, AusTender CN3711121, AusTender CN3700621, AusTender
CN3695712, AusTender CN3694802 and AusTender CN3693305.
Following our preliminary searches, we have identified a large quantity of documents that
fall within the scope of your request. The documents found so far in the search relate to the
procurement, engagement and (to a lesser extent) performance of contracts.
As you seek to access documents relating to six individual tender processes, it has been
necessary to request that the following line areas conduct searches for documents that may
fall within the scope of your request:
- Members of the OAIC Executive
- Corporate
- People and Culture
- Information management
- Regulation and Strategy
- Freedom of Information
- Legal Services
Documents that fall within the scope of your request are stored in various locations
including Content Manager, email accounts, accounting systems and the OAIC’s case
management system Resolve.
Preliminary searches have been conducted by the following line areas for documents that
come within the scope of each of the six tenders listed in your FOI request:
- Members of the OAIC Executive
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- Corporate
- People and Culture
- Regulation and Strategy
- Freedom of Information
- Legal Services
The search has captured at least 630 documents and attachments, and these documents
and attachments cover approximately 3400 pages.
The 3400 pages of documents found to date relate almost entirely to procurement and
engagement. Less than 100 of these pages found to date relate to the performance of the
contracts under these tenders, and these documents only relate to one of the tenders set out
in your FOI request. Therefore, there remains a significant number of documents yet to be
found, collated and considered that relate to the performance by successful tenderers under
the relevant contracts. The following estimates have been calculated based on the
documents found thus far and are conservative.
To calculate the processing time, I have taken the following factors into account:
• To locate, convert to PDF and collate the documents from the OAIC’s database will take at
least
15 hours.
• I estimate it will take 1 minute per document and attachment to prepare a document
schedule listing the document number, date, number of pages and a description of each
document. I therefore estimate it will take at least 630 minutes (
10.5 hours) to prepare a
schedule for 630 documents and attachments.
• The documents relate to a number of third parties who would need to be consulted in
relation to the request under s 27 of the FOI Act. I estimate that it will take on average one
hour to prepare and send a consultation notice and consider the entity’s response. On
this basis, consultation will take a minimum of
6 hours.
I estimate that an additional one minute per page would be required for assessment of
whether the documents can be released or whether they are subject to an exemption (3400
minutes, or
57 hours,) as well as 30 seconds per document for the updating of the schedule
to record the FOI decision (315 minutes or
5 hours). I estimate it would require a minimum of
5 hours for writing of the decision statement. I estimate than an additional
57 hours (one
minute per page) would be required for collating and redacting documents for release,
assuming the documents are released with exempt or irrelevant material removed. As stated
above, these estimates are conservative as they are based on documents located as a result
of preliminary searches conducted by six line areas. These estimates would necessarily
increase as further documents are captured by searches.
Diversion of resources
An estimate of processing time is only one of the considerations to be taken into account
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when deciding whether a practical refusal reason exists. As well as requiring a request to
substantially divert an agency’s resources, s 24AA also requires the request to unreasonably
divert an agency’s resources from its other functions before it can be refused under s 24.
The
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom
of Information Act 1982 (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 staffing resources available to the agency for FOI processing
• the impact that processing a request may have on other work in the agency, including FOI
processing whether an applicant has cooperated in framing a request to reduce the
processing workload
• whether there is a significant public interest in the documents requested
• other steps taken by an agency or minister to publish information of the kind requested
by an applicant.
The OAIC is a small agency, employing approximately 140 (head count) staff. Processing a
request of this size would substantially impact on the OAIC’s operations because of the
limited number of people the OAIC has available to process FOI requests. This makes it likely
that staff will be diverted from their other work in the OAIC, including:
• undertaking regulatory functions in both FOI and privacy
• undertaking activities set out in the OAIC’s 2020/2021 Corporate Plan such as:
− conciliating and investigating privacy complaints, responding to notifiable data
breaches, and overseeing the privacy aspects of the My Health Record system and
Consumer Data Right scheme
− monitoring compliance with new legislation and providing guidance and education
materials to support participants in the COVIDSafe system
− develop a binding code of practice for digital platforms increases the privacy
protection of Australians in the online environment
− improve agencies’ processes for managing FOI requests
Given the small size of the OAIC (around 140 employees) a processing time of 155.5 hours
would substantially and
unreasonably divert the resources of the OAIC from its other
operations such as privacy and FOI regulatory work.
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On this basis, I believe that the work involved in processing your request in its current form
will substantially and unreasonably divert the resources of the OAIC from its other
operations.
Request consultation process
You now have an opportunity to revise your request to enable it to proceed.
Revising your request can mean narrowing the scope of the request to make it more
manageable or explaining in more detail the documents you wish to access. For example, by
providing more specific information about exactly what documents you are interested in, we
will be able to pinpoint the documents more quickly and avoid using excessive resources to
process documents you are not interested in.
Before the end of the consultation period, you must do one of the following, in writing:
• withdraw your request
• make a revised request
• tell us that you do not wish to revise your request.
The consultation period runs for 14 days and starts on the day after you receive this notice.
Therefore, you must respond to this notice by 29 January 2021.
During this period, you can ask the contact person (see below) for help to revise your
request. If you revise your request in a way that adequately addresses the practical refusal
grounds outlined above, we will recommence processing it. (Please note that the time taken
to consult you regarding the scope of your request is not taken into account for the purposes
of the 30 day time limit for processing your request.)
If you do not do one of the three things listed above during the consultation period or you do
not consult the contact person during this period, your request will be taken to have been
withdrawn.
Ways you can reduce the scope of your request
There are a number of ways that you can reduce the scope of your request to enable us to
process it without unreasonably diverting our resources from our other operations. These
can include, for example:
• reducing substantially the number of AusTender contracts that are the subject of this FOI
request (though I note that this alone is unlikely to reduce the resources required
sufficiently, as the documents “relating to” even one of these tenders are voluminous, so
reducing the number of AusTender contracts should be considered in combination with
narrowing the kinds of documents sought in one of the ways suggested in the following
bullet points)
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• limiting your FOI request to documents relating to the engagement of consultants in
relation to specific AusTender contracts;
• limiting your FOI request to documents relating to the financial procurement process in
relation to specific AusTender contracts;
• limiting your FOI request to documents relating to the services provided by consultants
under the AusTender contracts;
• a combination of the above.
I emphasise again that the 630 documents and attachments, comprising 3400 pages, within
the current scope of your request do not represent all the documents that fall within the
current scope of your request. Therefore I invite you to reduce the scope of your request in
such a way that the number of documents (and processing resources required) is reduced
below the numbers I have set out above, in such a way that the request would not
substantially and unreasonably divert the OAIC’s resources. You may wish to advise the OAIC
of the specific documents you are seeking, having regard to the categories of information
noted above.
Contact officer
If you would like to revise your request, or have any questions, you can contact me at
xxxx.xxxxxx@xxxx.xxx.xx or (02) 9284 9833.
Yours sincerely,
John Molloy
Senior Lawyer
15 January 2021
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