Our ref:
FOI22/043; CM22/3292
30 March 2022
Dominic Manganaro
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Manganaro
Freedom of Information Request FOI22/043 – Request consultation process
The purpose of this letter is to consult you in relation to a proposed decision to refuse access to documents
on the basis of a practical refusal reason, in relation to your request for access to documents under the
Freedom of Information Act 1982 (the FOI Act) which you submitted to the Attorney-General’s Department
(the department).
Your Request
On 2 March 2022 you requested access to:
•
Legal advice provided by the Attorney-General’s Department to the Federal Government related to
both the closure and the subsequent re-opening of Australia’s International borders from the period
between March 2020 until January 2022
•
Specifically any legal advice provided by the Attorney-General’s Department to the Federal
Government related to the Western Australian state border closures from the period between
March 2020 until January 2022.
On 24 March 2022, the department wrote to you, informing you that the scope of your request in its
current terms was too broad, and captured a very large number of documents. The department invited you
to narrow the scope of the request in order to assist the department’s processing of your request.
In response to the department’s consultation, you revised the terms of your request to the fol owing:
The final documents and email chains, excluding any drafts or duplicate documents/attachments/
email chains/ministerial briefings etc, that were created by the Attorney-General’s Department in
March 2020 containing formal legal advice that was subsequently relied upon by the Federal
Government for the closure of Australia’s International borders in March 2020.
Practical refusal reason
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to freedom of
information requests made to the department.
I have decided that the work involved in processing your revised request, dated 24 March 2022, in its
current form would substantial y and unreasonably divert the resources of this department from its other
operations due to its broad scope and size. Section 24AA of the FOI Act refers to this as a ‘practical refusal
reason’ (copy at
Attachment A).
A preliminary search of the department’s holdings indicates the department holds more than 300
documents potentially relevant to your revised request. The departmental resources required to identify,
locate and col ate al documents within the scope of your request, and to decide whether to grant, refuse
or defer access to each of those documents (in whole or in part), would unreasonably divert the resources
of the department from its other operations.
Request consultation process
Before I decide to refuse access to the documents you requested on the basis of a practical refusal reason,
section 24AB of the FOI Act requires me to undertake a ‘request consultation process’ with you (copy at
Attachment A). This means you have 14 days in which to respond to this notice revising your request in one
of the ways described below. If you would like to proceed with your FOI request, you must make a further
revised request, in writing, within 14 days of the date you receive this letter.
As noted above, you revised the scope of your original request to the following:
The final documents and email chains, excluding any drafts or duplicate documents/attachments/
email chains/ministerial briefings etc, that were created by the Attorney-General’s Department in
March 2020 containing formal legal advice that was subsequently relied upon by the Federal
Government for the closure of Australia’s International borders in March 2020.
Given that your revised request is still seeking access to formal legal advice, I consider it likely that the
documents you are seeking will be subject to particular exemptions under the FOI Act. In particular, your
request for documents ‘containing formal legal advice’ means that it is very likely that most of the
documents within the scope of your request would attract legal professional privilege and would likely be
exempt in accordance with s 42 of the FOI Act. In addition, documents in respect of activities undertaken by
the Australian Government Solicitor (which includes legal advice prepared by the Australian Government
Solicitor) are exempt from the operation of the FOI Act (see section 7(2) and Part II of Schedule 2).
Further, based on the department’s preliminary searches in response to your request, I consider many of
the documents you have requested may have been brought into existence for the dominant purpose of
deliberations of Government, and may contain information relating to third parties that would also likely be
exempt under the relevant sections of the FOI Act.
Based on this preliminary analysis that your request in its existing form may result in a large number of
exemptions and/or be refused for a practical refusal reason, you may wish to consider further revising the
terms of your request to expressly exclude formal legal advice, including legal advice produced by the
Australian Government Solicitor and/or the department.
During the consultation period, you are welcome to seek assistance from the contact person listed below to
revise your request. If you revise your request in a way that adequately addresses the practical refusal
grounds outlined above, the department wil recommence processing it. Please note that the time taken to
consult you about the scope of your request is not included in the 30 day time limit for processing your
request.
If you do not wish to proceed with your FOI request, you may either withdraw your request or advise the
department that you do not wish to revise your request. You request wil be withdrawn if you do not
contact us or provide written notice of the revised scope of your request within 14 days from receipt of this
notice.
Freedom of Information request FOI22/043 – Practical refusal request consultation Page 2 of 5
Questions
If you wish to discuss this decision, the FOI case officer for this matter is Fiona, who can be reached on
(02) 6141 6666 or by email to
xxx@xx.xxx.xx.
Yours sincerely
David Lewis
General Counsel (Constitutional)
Office of Constitutional Law
Attachments
Attachment A:
Sections 24AA and 24AB of the FOI Act
Freedom of Information request FOI22/043 – Practical refusal request consultation Page 3 of 5
Attachment A
Section 24AA of the FOI Act: 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 a
n 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 following:
(a) identifying, locating or col ating the
documents within the filing system of th
e 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 a
n 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.
Section 24AB of the FOI Act: 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 t
he 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 th
e applicant may consult during a period;
Freedom of Information request FOI22/043 – Practical refusal request consultation Page 4 of 5
(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 th
e applicant is given the notice.
Assistance to revise request
(3) If th
e 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 th
e practical refusal reason no longer exists.
(4) For the purposes of
subsection (3), reasonable steps includes the following:
(a) giving the
applicant a reasonable opportunity to consult with the contact person;
(b) providing the
applicant with any information that would assist th
e 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 th
e 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 revise
d 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 a
n 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 all 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.
Freedom of Information request FOI22/043 – Practical refusal request consultation Page 5 of 5
