I am writing to tell you that based on the information before me at this time, I am of the view
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 the
substantial number of documents which may fall within the scope of the request (ss
24AA(1)(i) and 24AA(2)(b)(i) 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.
Why I intend to refuse your request
Calculation of the processing time
Your request involves two parts. The first part of your requests is:
I request copy of al s 55G substituted decisions received by the Office of the Australian
Information Commissioner since 2018, since a request must be a request for documents.
I am interpreting the part one of your request to be for:
… a copy of all s 55G decisions within the date range of 1 January 2018 to 9 March
2022 (the date of your FOI request).
Search and retrieval time
Your request was referred the line area to conduct searches based on your request. I have
consulted with the Director of the FOI Regulatory Group, the line area, to help identify
documents within the scope of your request.
The line area has advised the following:
• The OAIC uses a case management system called Resolve to register and process IC
review applications received.
• S 55G decisions issued in IC reviews were not automatically captured in Resolve until
December 2019, when an additional data field was added into Resolve for reporting
purposes to capture IC reviews where a s 55G decision was made by the agency in
the IC review. However, the data captured by this field is only in relation to whether a
s 55G decision was made. The date the decision was made was not captured by the
data field.
• In light of the above limitations, a search was conducted using the data that is
captured by Resolve, for IC review applications received by the OAIC from 1 January
2018 up to the date of your FOI request, for matters where a s 55G decision was
made. The search identified 1,352 matters. In some IC reviews, more than one 55G
decision was made by the agency.
2
• However, the line area anticipates there could be more matters in addition to the
1,352 matters identified, but would require a staff member to manually go through IC
reviews received by the OAIC prior to 1 January 2018, where a s 55G decision was
made in the matter between 1 January 2018 until the date of your FOI request. For
example, an IC review application may have been lodged on 1 January 2017,
however the s 55G revised decision may have been made on 1 January 2018 during
the course of the IC review process.
• For the purposes of calculating time to conduct search and retrieval, the line area
examined 10 of the 1,352 matters where at least one 55G decision was made. The
line area estimated that it would take at least 3 minutes to identify the s 55G
decision, copy the decision and save it in a separate folder, consider whether it
contains any exempt material, and provide comments to the Legal Services Area,
with a copy of that decision. The line area estimates that it would take a staff
member at least 67 hours to complete these tasks for all 1,352 files.
Accordingly, the line area estimates that it would take at least
67 hours to conduct search
and retrieval of the 1,352 IC review matters where Resolve was able to identify that a s 55G
decision was made.
Decision making time
In addition to the time required by the line area to conduct search and retrieval of the
documents which fall within the scope of your FOI request, additional time is required by the
FOI decision maker to examine, assess and edit the documents in scope in order to make the
FOI decision.
A staff member in the Legal Services Team conducted a sample of 20 of the 1,352 IC reviews
containing a 55G decision that were identified by the line area, to help calculate the time it
would take for an FOI Officer to process your FOI request. The sampling is approximately
1.5% of the total identified by the line area.
Based on the sample, the staff member calculated the following:
• It took the staff member approximately 30 seconds per file to locate, open and
review various decision records on the file and to determine whether it was one or
more s 55G decisions on file. It took approximately 30 seconds to extract the relevant
document from the system and to save a pdf file. Using this sample and applying to
the total, it is estimated that it would take a staff member 1,352 minutes, or
22.5
hours to locate, open, review each file and extract the s 55G decisions.
• Each of the 20 files, 21 s 55G decisions were identified, with one file containing two
s 55G decisions.
• Of the s 55G decisions in the sample, the decisions ranged from 2 to 22 pages with a
range of complexity levels in the decision. Using an average of 7 pages in each
decision from the sample, and applying to the total number if s 55G decisions that
could be contained in the 1,352 IC review matters identified by the line area, it is
3
estimated that there will be at least 9,464 pages to be reviewed and processed for
1,352 IC review matters.
• In conducting the sample, the staff member took approximately 3.83 minutes in each
IC review matter on average to
o review each page of the decision,
o identify personal and business information about third-party entities
o identify any other relevant exemptions that may be exempt and redacted,
and
o apply the redactions where appropriate.
• Based on the above sample, I estimate that it would take at least
86.20 hours to
review and assess the s 55G decisions in the 1,352 IC review matters.
• I conservatively estimate that it will take the FOI decision maker
5 hours to prepare a
schedule of documents regarding at least the 1,352 s 55G decisions in scope of your
FOI request, and another
2 hours to draft the FOI decision and reasons for decision.
Combined with the line area estimate for conducting search and retrieval, based on the
sample conducted, I estimate that it would take a staff member of the OAIC at least
182.7
hours to process your FOI request.
The process time estimated above do not take into account the additional time required to:
• Collate and prepare documents for third party consultation. All s 55G decision
documents contain sensitive and/or confidential personal and business information
about third-party entities, as such consultation is required under sections 27 and
27A of the FOI Act. From the sample conducted, I estimate there will be at least 1
external third-party consultation required for each decision as the documents
contain individuals’ and respondents personal and/or business information, which
means conducting consultation with 1,352 applicants and/or respondents
• assess each third-party’s response to our consultation, edit and redact the relevant
information for release and
• the additional search and retrieval time required to locate all 55G decisions in scope
of your FOI request, which due to the limitation of the data captured by Resolve,
would require a staff member to manually go through IC reviews received by the
OAIC prior to 1 January 2018, where a s 55G decision was made in the matter
between 1 January 2018 until the date of your FOI request.
Diversion of resources
An estimate of processing time is only one of the considerations to be taken into account
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
4
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 130 (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
• conducting IC review
• delivering internal legal advice
• improve agencies processes for managing FOI requests.
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, as
well as excluding information that has previously been published on our disclosure log, 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
14 April 2022.
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
5
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
include limiting the scope of your request to:
• s 55G decisions contained in IC review applications received by the OAIC in a smaller
date range than the date range currently nominated in your FOI request and exclude
any personal information and business information contained in the 55G decisions
which does not relate to you, or
• reduce the number of s 55G decisions you seek to access by identifying those from
particular government agencies within a smaller date range, and exclude any
personal information and business information contained in the s 55G decisions
which does not relate to you.
Contact officer
If you would like to revise your request, or have any questions, you can contact me or Ms
Angela Wong, lawyer, at xxxxx@xxxx.xxx.xx or on (02) 8231 4207.
Yours sincerely
Toby Shanks
Paralegal
30 March 2022
6
