LEX 47867
Request consultation notice due to existence of a practical refusal
reason under section 24AB of the Freedom of Information Act 1982
Practical Refusal Consultation Notice of Andrew (Position Number 62329538), Information
Access Unit, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
3 March 2022
FOI reference number:
LEX 47867
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Verity Pane,
Freedom of Information Request: LEX 47867
Purpose of this notice
1.
The purpose of this notice is to advise you (as required under section 24AB of the Freedom
of Information Act 1982 (FOI Act)) that I intend to refuse your request on the basis that a
practical refusal reason exists, as defined by section 24AA of the FOI Act.
2.
Based on the terms of your request, and from initial searches undertaken to respond to your
request, I am of the view that a practical refusal reason exists because:
a. Processing your request is likely to result in a substantial and unreasonable diversion
of the Department’s resources from its other operations (section 24AA(1)(b) of the FOI
Act).
Authority to make decision
3.
I, Andrew (Position Number 62329538), Information Access Officer, Information Access Unit,
am an officer authorised by the Secretary of the Department to make decisions about access
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to documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
Scope of your request
4.
On 9 February 2022, you made a request for access to documents in the possession of the
Department. Your request sought access to:
I seek copy of the Secretary's Estimates briefings (often referred to as the Estimates
book) for the Estimates appearances in June 2021 and October 2021.
These are the documents the Department prepares for the Secretary to read and
take with her, to refer to if necessary, during her Estimates appearances.
Power to refuse a request
5.
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 stil exists, the Department may refuse to give you access to
the documents subject to the request.
6.
However, before I make a decision to refuse your request you have an opportunity to revise
your request to remove the practical refusal reason. This is cal ed a ‘request consultation
process’. You have 14 days to respond to this notice in one of the ways set out below at
page 6. As mentioned below, you can request more time to consider and respond to this
notice. Please let me know if you would like additional time to respond.
When does a practical refusal reason exist (section 24AA of the FOI Act)
7.
The practical refusal reason applicable to your request is that:
a. Processing your request is likely to result in a substantial and unreasonable diversion
of the Department’s resources from its other operations (section 24AA(1)(b) of the
FOI Act).
8.
Under section 24AA(2) of the FOI Act, the Department must have regard to the resources
that would have to be used for:
identifying, locating or col ating the documents within the filing system of the
agency;
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deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document (including
resources that would have to be used for examining the document or consulting
with any person or body in relation to the request);
making a copy or an edited copy, of the document; and
notifying any interim or final decision on the request.
9.
Further, the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines) identify matters that may be relevant when
deciding whether processing the request wil 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; and
other steps taken by an agency or minister to publish information of the kind
requested by an applicant.
10. I consider that al of the above factors have a bearing on your request. The reasons why a
practical refusal reasons exists in relation to your request are set out below.
Why I intend to refuse your request
Request is substantial
11. Section 24AA(1)(a) 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 substantial y
and unreasonably divert the resources of the department from its other operations.
12. Fol owing initial enquiries, I estimate that approximately 150 hours of processing time is
required to deal with this request. The reasons for this are as fol ows:
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a. There are approximately 1,385 pages of material relevant to your request. These
1,385 pages are comprised of 135 documents (each being a separate brief)
identified as being relevant to your request. I have undertaken a sample of the
documents and note that the lengths vary from 3 – 4 pages in some cases, to
93 pages in another case. Taking into account the varying nature of the size of the
documents, I have assumed an average document length of 10 pages and 5 minutes
per document to review the content, total y 11.25 hours to undertake an initial
review of al 135 documents.
b. Based on my sample, I have identified that some of the documents are highly
sensitive or contain a mix of information, some of which is highly sensitive. Some of
the documents contain information that is confidential and information that is
subject to legal professional privilege. Those documents are marked with a warning
that the content is not to be disclosed on that basis.
c. Further, based on my sample, some of the documents provide detailed information
about the status and management of veteran claims. These documents contain
detailed personal information about those veterans, the disclosure of which would
disclose their sensitive, personal information.
d. Final y, based on my sample, some of the documents contain information which is
deliberative in nature, being material which refers to the delivery of certain
programs and functions and options for future delivery of those programs and
functions.
e. Given the varying nature of the subject matter of the documents, many of which
contain sensitive information of the kind referred to above, before releasing the
documents to you, I would need to consult with:
i. individual veterans whose personal information is included in the
documents to seek their views about the disclosure of their personal
information to you; and
i . relevant business areas within the Department, who are policy owners of
the content of the brief.
f. In relation to consultation with veterans, under section 27A of the FOI Act, I would
need to separately consult with each individual or their legal representative to
determine whether their personal information can be released or whether that
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information is conditional y exempt under section 47F of the FOI Act. For some of
those individuals, the Department is involved in active litigation with that person. I
may need to consult with the Department’s General Counsel Division before
undertaking a consultation process, to ensure the consultation is appropriate
having regard to al of the circumstances. Assuming at least 10 individuals, their
families or next of kin wil need to be consulted, I have estimates that minimum
time estimated to conduct al required external consults would be 50 hours (being
5 hours per consultation to extract the relevant documents, undertake any internal
consultation process required before I undertake the third party consultation,
prepare the third party consultation letters and consider responses received from
third parties).
g. In relation to internal consultations with relevant business areas of the Department,
the documents that come within the scope of your request contain a broad range
of subject matter. Based on my review of the documents, I have identified
11 internal business areas which wil need to be consulted on documents which
relate to their division. I have assumed that consultation process wil take 44 hours
(being four hours per business area) – when you take into account the time
required for the Information Access Unit to extract the relevant documents,
separately liaise with 11 separate business areas in relation to the content of the
documents, the time required for each of those 11 separate business areas to
consider the content and identify any sensitivities and then time for the
Information Access Unit to consider those responses.
h. I wil then be required to consider the contents of the documents and determine
the extent to which information is appropriate to release to you under the FOI Act.
Based on my sample, at a minimum, I would need to consider the fol owing
exemptions and conditional exemptions:
i. Section 22 – Access to edited copies with exempt or irrelevant matter
deleted
i . Section 42 – Legal Professional Privilege
i i. Section 45 – Documents containing material obtained in confidence
iv. Section 47C – Public interest conditional exemptions – deliberative
processes
v. Section 47E – Public interest conditional exemptions – certain operations of
agencies
vi. Section 47F – Public interest conditional exemptions – personal privacy
vi . Section 47H – Public interest conditional exemptions – research.
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i. I wil then need to prepare my statement of reasons and redacted documents for
release. I have assumed the reasoning process and preparation of my statement of
reasons wil take 28 hours, which assumes 10 minutes per document for 135
documents, average 10 pages each), apply redactions and prepare the release pack.
j. Final y, given the large amount of correspondence that is needed to process these
documents (between DVA business areas and also external parties), it is estimated
that there would be an additional 15 hours spent filing and completing
administrative tasks.
13. Taking these factors into account, I have concluded the request as it currently stands is
substantial.
Request is unreasonable
14. For the purpose of providing this notice, I have considered whether the substantial resource
burden would be unreasonable having regard to the fol owing:
150 hours of processing time is, at face value, an unreasonable burden for a single
FOI request, taking into account the need to process multiple requests at any given
time, and the impact such a burden would have on responding to other FOI
applicants and for the relevant business areas to undertake their designated duties.
15. Taking the above factors into account, I am of the view that the request as it currently stands
is unreasonable, as wel as substantial.
Ways you can revise the scope of your request
16. You now have an opportunity to revise your request so that the grounds for a practical
refusal are removed.
17. 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
wil be able to pinpoint the documents more quickly and avoid using excessive resources to
process documents you are not interested in.
18. For example, you may want to consider:
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providing further clarification of your topics of interest to al ow processing and release
of relevant briefs rather than the entire 135 documents;
providing further clarification of any areas of interest within the Department or its
operations to al ow processing and release of relevant briefs rather than the entire 135
documents;
agreeing to remove from the scope of your request information that is personal
information of a third party, thus removing the need for the department to need to
consult with those third parties under section 27A of the FOI Act.
19. Please note that even if you do modify your request, it is possible that a practical refusal
reason under section 24AA may stil exist and/or the Department may need further time to
process your revised request. This wil depend on the revision you agree to make. As far as is
reasonably practicable, we are happy to provide you with further information to assist you in
revising your request so that it removes the practical refusal grounds.
Next steps
20. Before the end of the consultation period, which is close of business 17 March 2022 (being
14 days from receiving this notice), you must do one of the fol owing, in writing:
withdraw the request;
make a revised request; or
indicate that you do not wish to revise the request.
21. During this period, you can ask me for help to revise your request. If you revise your request
in a way that adequately addresses the practical refusal grounds outlined above, we wil
recommence processing it.
22. If you indicate you do not wish to revise your request, the Department wil proceed to make
a decision on whether to refuse the request on the grounds that processing your request wil
result in a diversion of the Department’s resources under section 24(1) of the FOI Act.
23. If you do not respond in one of these ways within 14 days (by COB 17 March 2022), the
request wil be taken to have been withdrawn pursuant to section 24AB(7) of the FOI Act.
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24. If you need more time to respond, please contact the Information Access Unit via the below
contacts, within the 14 day period to discuss your need for an extension of time.
Suspension of processing time
25. Please note under section 24AB(8) of the FOI Act, the time for processing your FOI request is
suspended from the day you receive this notice until the day you do one of the things listed
above.
26. An extract of the provisions of the FOI Act that are relevant to this notice are set out at
Schedule 1.
Contact us
27. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Post:
Information Access Unit, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Andrew (Position Number 62329538)
Information Access Officer
Information Access Unit
Department of Veterans’ Affairs
3 March 2022
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LEX 47867
Schedule 1
Schedule of relevant provisions in the FOI Act
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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
fol owing ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
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Power to refuse request--diversion of resources etc.
(1)
If an agency or Minister is satisfied, when dealing with a request for a document, that a
practical refusal reason exists in relation to the request (see section 24AA), the agency or
Minister:
(a)
must undertake a request consultation process (see section 24AB); and
(b)
if, after the request consultation process, the agency or Minister is satisfied that
the practical refusal reason stil exists--the agency or Minister may refuse to give
access to the document in accordance with the request.
(2)
For the purposes of this section, the agency or Minister may treat 2 or more requests as a
single request if the agency or Minister is satisfied that:
(a)
the requests relate to the same document or documents; or
(b)
the requests relate to documents, the subject matter of which is substantial y the
same.
24AA When does a practical refusal reason exist?
(1)
For the purposes of section 24, a practical refusal reason exists in relation to a request for a
document if either (or both) of the fol owing applies:
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(a)
the work involved in processing the request:
(i)
in the case of an agency--would substantial y and unreasonably divert the
resources of the agency from its other operations; or
(i )
in the case of a Minister--would substantial y and unreasonably interfere
with the performance of the Minister's functions;
(b)
the request does not satisfy the requirement in paragraph 15(2)(b) (identification
of documents).
(2)
Subject to subsection (3), but without limiting the matters to which the agency or Minister
may have regard, in deciding whether a practical refusal reason exists, the agency or
Minister must have regard to the resources that would have to be used for the fol owing:
(a)
identifying, locating or col ating the documents within the filing system of the
agency, or the office of the Minister;
(b)
deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document, including
resources that would have to be used for:
(i)
examining the document; or
(i )
consulting with any person or body in relation to the request;
(c)
making a copy, or an edited copy, of the document;
(d)
notifying any interim or final decision on the request.
(3)
In deciding whether a practical refusal reason exists, an agency or Minister must not have
regard to:
(a)
any reasons that the applicant gives for requesting access; or
(b)
the agency's or Minister's belief as to what the applicant's reasons are for
requesting access; or
(c)
any maximum amount, specified in the regulations, payable as a charge for
processing a request of that kind.
24AB What is a request consultation process?
Scope
(1)
This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2)
The agency or Minister must give the applicant a written notice stating the fol owing:
(a)
an intention to refuse access to a document in accordance with a request;
(b)
the practical refusal reason;
(c)
the name of an officer of the agency or member of staff of the Minister (the
contact person ) with whom the applicant may consult during a period;
(d)
details of how the applicant may contact the contact person;
(e)
that the period (the consultation period ) during which the applicant may consult
with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3)
If the applicant contacts the contact person during the consultation period in accordance
with the notice, the agency or Minister must take reasonable steps to assist the applicant
to revise the request so that the practical refusal reason no longer exists.
(4)
For the purposes of subsection (3), reasonable steps includes the fol owing:
(a)
giving the applicant a reasonable opportunity to consult with the contact person;
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(b)
providing the applicant with any information that would assist the applicant to
revise the request.
Extension of consultation period
(5)
The contact person may, with the applicant's agreement, extend the consultation period by
written notice to the applicant.
Outcome of request consultation process
(6)
The applicant must, before the end of the consultation period, do one of the fol owing, by
written notice to the agency or Minister:
(a)
withdraw the request;
(b)
make a revised request;
(c)
indicate that the applicant does not wish to revise the request.
(7)
The request is taken to have been withdrawn under subsection (6) at the end of the
consultation period if:
(a)
the applicant does not consult the contact person during the consultation period in
accordance with the notice; or
(b)
the applicant does not do one of the things mentioned in subsection (6) before the
end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8)
The period starting on the day an applicant is given a notice under subsection (2) and
ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c)
is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take al reasonable steps to notify an applicant of a
decision on the applicant's request within 30 days after the request is made.
No more than one request consultation process required
(9)
To avoid doubt, this section only obliges the agency or Minister to undertake a request
consultation process once for any particular request.
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