LEX 47867
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Andrew (Position Number 62329538), Information
Access Unit, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
21 March 2022
FOI reference number:
LEX 47867
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pane,
Freedom of Information Request: LEX 47867
Decision
1. I have decided to refuse your request under section 24(1) of the FOI Act because a practical
refusal reason still exists under section 24AA of the FOI Act. I am satisfied that the work
involved in processing your request would substantial y and unreasonably divert the
resources of the department from its other operations as specified in section 24AA(1)(a)(i) of
the FOI Act.
2. The reasons for my decision, including the relevant sections of the FOI Act, are set out
below.
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
to documents in the possession of the department in accordance with section 23(1) of the
FOI Act.
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Summary
4. On 2 December 2021, 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.
5. On 3 March 2022, I wrote to give you notice under section 24AB(2) of the FOI Act of my
intention to refuse access because a practical refusal reason existed in relation to your
request, as it was too voluminous and complex to process. I gave you an opportunity to
consult with the department and invited you to revise the scope of your request to remove
the practical refusal reason.
6. On 11 March 2022, you responded to my consultation notice and advised that you did not
wish to withdraw your request but did make a revision to its scope.
7. You stated that:
As to the other issues you raise about requiring extensive third party consultations with
individuals litigating against DVA, along with a ridiculous claim as also requiring separate
consultations with every family member of theirs (not party to the litigation), that would be
privileged material you would claim exemption on anyway.
As I didn't request identifying personal information of private individuals, including litigants
in legal action against DVA, that would be an agreed variation of irrelevant material -
Names and other identifying information of private individuals, other than corporate or
public officials carrying out their official functions, is exempt under s 22.
8. As the 30 day processing period resumed upon receipt of your response, a decision on your
request is due by 21 March 2022.
Material taken into account
9. I have taken the fol owing into account in making my decision:
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• your original request dated 9 February 2022 and your revised request dated
11 March 2022;
• the documents that fal within the scope of your request;
• the resources that would have to be used:
o in identifying, locating and col ating the documents within the records of the
department
o in examining the documents
o to decide whether to grant, refuse or defer access to documents in full or in part
o in making a copy, or an edited copy of the documents, and
o in preparing and notifying you of the decision in relation to the request
• consultations with departmental officers and business areas about the nature of the
documents and the operating environment and functions of the department
• sections 24 and 24AA FOI Act; and
• the Guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (
FOI Guidelines).
10. The provisions of the FOI Act which are relevant to my decision are set out in
Schedule 1.
Reasons for decision
11. Following the request consultation process outlined above, I am satisfied that a practical
refusal reason stil exists because the work involved in processing your request would
substantial y and unreasonably divert the resources of the department from its other
operations.
12. The reasons for my decision are outlined below.
13. By your revised scope, I understand that you have agreed to remove the personal
information of all private individuals, including litigants, from the scope of your request on
the basis that this information is out of scope under section 22 of the FOI Act. I consider that
this revised scope does reduce some of the time required to process your request, because I
wil not be required to identify and consult with those individuals under section 27 of the FOI
Act, before I can make a decision in respect to the release of any of that information.
14. However, notwithstanding that revised scope of your request, given the highly sensitive and
privileged nature of the Secretary’s briefs I consider the time required to process your
request continues to place an unreasonable and substantial diversion on the department’s
resources.
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15. The need to consult with third parties regarding personal information under section 27A of
the FOI Act was only one factor which contributed to the overall practical refusal reasoning.
16. There stil exists the need to undertake thorough consultation with 11 internal business
areas, who are the policy owners of the content of the Secretary’s briefs. There is also a
need for direct consultation with the Secretary’s office.
17. Under your revised scope, while the department would not be required to consult under
section 47F of the FOI Act, I would still be required to consider, at a minimum, the fol owing
provisions of the FOI Act:
a. Section 22 – Access to edited copies with exempt or irrelevant matter deleted
b. Section 42 – Legal Professional Privilege
c. Section 45 – Documents containing material obtained in confidence
d. Section 47C – Public interest conditional exemptions – deliberative processes
e. Section 47E – Public interest conditional exemptions – certain operations of
agencies
f. Section 47H – Public interest conditional exemptions – research.
18. I wil then need to prepare my statement of reasons and redact documents for release. As
explained in the consultation notice, this will take significant time for a request of this nature
and size.
19. Based on the sampling time estimates provided in my consultation notice, I estimate that it
would take in excess of 100 hours of processing time to process your request. I am satisfied
that the processing of your request would divert substantial department resources from
performing other functions.
20. For the purposes of deciding whether your request would unreasonably divert the resources
of the department from its other operations, I have considered whether the substantial
diversion of resources would be unreasonable having regard to:
• the staffing resources available to the department
• the impact that processing the request may have on other work in the department,
including FOI processing
• your cooperation in framing the request to reduce the processing workload
• whether there is a significant public interest in the documents requested.
21. I have taken into consideration that processing your request would divert significant
resources from processing FOI requests made to the department by other applicants. I note
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that you have declined to sufficiently revise your request along the lines suggested in the
consultation notice, such as by choosing certain briefs that relate to your particular areas of
interest within the department, which would have had the effect of dramatically reducing
the processing workload when compared to processing all 135 briefs.
22. I recognise that there may be some public interest in the content of some of the documents
which come within the scope of your request being released, and that the disclosure of
some of the documents may inform the public about the department’s operations and
enhance scrutiny of the department’s decision making. However, based on the sample of
documents I have reviewed, this public interest needs to be balanced against the prejudice
that may flow to the department and its clients if information that is sensitive, and, in some
cases, deliberative, commercial and /or confidential, being released. In weighing these
factors both for and against disclosure, I have decided that the factors against disclosure
outweigh those in favour of disclosure at this time.
23. For these reasons, I am satisfied that the work involved in processing your request would
substantial y and unreasonably divert the resources of the department from its other
operations, namely the processing of other FOI requests and supporting those who serve or
have served in defence of our nation and their families.
24. I have found that a practical refusal reason exists in relation to your request for access to the
documents, fol owing a request consultation process undertaken in accordance with section
24AB of the FOI Act. Accordingly I have decided to refuse your request under section 24(1) of
the FOI Act.
Your rights of review
25. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a quicker resolution of
your concerns.
Internal review
26. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within
30 days.
27. You can make your application for Internal Review in one of the fol owing ways:
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Post:
Information Access Unit, Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
28. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
29. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
30. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit, Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
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Yours sincerely,
Andrew (Position Number 62329538)
Information Access Officer
Information Access Unit
Department of Veterans’ Affairs
21 March 2022
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LEX 47867
Schedule 1
Schedule of relevant provisions in the FOI Act
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Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
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Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
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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
following 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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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
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(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
24
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 still 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 substantially 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 following applies:
(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
(ii) in the case of a Minister--would substantially 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 collating 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
(ii)
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.
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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 following:
(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;
(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 following, 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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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
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(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
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Document Outline
