Our reference: FOIREQ22/00113
Julie
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00113
Dear Julie
I am writing to advise you of my decision in response to your application for internal
review of the decision made on 14 April 2022 - FOIREQ22/00070

Original FOI Decision
You lodged a FOI request on 9 March 2022. In your request you sought access to the
following:
“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.

It may be simpler to provide a table of the date the s 55G decision was
received by the Office of the Australian Information Commissioner, the FOI
agency it was received from, and the date of the original FOI request (not the
decision date) the s 55G substitution relates to (as the s 55G decision states
this).”

On 30 March 2022, the OAIC issued you with a request consultation notice under s 24AB of
the FOI Act. In that notice, the OAIC advised you that it intended to refuse the request on
the basis that the work involved in processing your request in its current form would
substantially and unreasonably divert the resources of the OAIC from its other operations.
The OAIC invited you to respond to the consultation notice to advise whether you wished
to:
•  withdraw your request
•  revise the scope of the request (a number of options for revising the scope were
provided to you), or
•  not respond and your FOI request would be taken to have been withdrawn

1300 363 992
T +61 2 9284 GPO Box  www.oaic.gov.au
9749
5218
i i @ i

ABN 85 249 230

On 10 April 2022 you wrote to the OAIC and revised the scope of your request as follows:

“… I vary my FOI only to the extent that the period of time in scope
commences from 1
January 2018 since the OAIC claim this was the first time the OAIC even kept
records of s 55G substitutions it had approved.”

On 14 April 2022, the OAIC refused the request under s 24(1) of the FOI Act on the basis that
a practical refusal reason still existed as the work involved in processing the revised FOI
request would stil  substantially and unreasonably divert the resources of this agency due
to the substantial number of documents which fell within the scope of the request and
that a practical refusal reason still existed (section 24AA FOI Act).
I note that your original request was for “al  s 55G substituted decisions received…since
2018” and that your revised request ‘amended’ your request to be from a scope
commencing “…from 1 January 2018.” Since your original request was for all documents
from 2018, which would include al  documents from 1 January 2018 onwards, I note that
your amended scope was functionally identical to your original request, with no actual
reduction of scope occurring.
Material taken into account
In making my internal review decision, I have had regard to the fol owing:
•  your original freedom of information request FOIREQ22/00070 dated 9 March
2022
•  your amendment to your request dated 10 March 2022
•  the decision of the delegate dated 14 April 2022 the subject of this review
•  review of line area consultations I have completed in undertaking this internal
review
•  further sampling conducted in undertaking this review
•  the FOI Act
•  relevant case law
•  the Guidelines issued by the Australian Information Commissioner under s 93A
of the FOI Act.
Internal Review Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation
to FOI requests.

An internal review decision is a ‘fresh decision’ made by a person other than the person
who made the original decision (section 54C of the Freedom of Information Act 1982 (the
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FOI Act)). As such, I have had regard to, but not relied on, the delegate’s original Freedom
of Information (FOI) decision.

After reviewing the previous line area advice and searches conducted, and conducting
further sampling of documents within the scope of your request, I have decided to affirm
the original decision in refusing to process your request under section 24 of the FOI Act, on
the basis that that the work involved in processing your request would substantially and
unreasonably divert the resources of this agency and that a practical refusal reason
therefore exists under section 24 of the FOI Act.

When does a practical refusal reason exist (section 24AA)
For the purposes of section 24, a practical refusal reason exists in relation to a request if
the work involved in processing the request would substantial y and unreasonably divert
the resources of the agency from its other operations.
The FOI Guidelines at [3.116] state that:

In deciding if a practical refusal reason exists, an agency or minister must have regard to
the resources required to perform the fol owing activities specified in section 24AA(2):
•  identifying, locating or collating documents within the filing system of the
agency or minister
•  examining the documents
•  deciding whether to grant, refuse or defer access
•  consulting with other parties
•  redacting exempt material from the documents
•  making copies of documents
•  notifying an interim or final decision to the applicant.
Search and retrieval time
The Director of the OAIC FOI Regulatory Group was previously consulted to identify
documents within the scope of your request. Having reviewed these investigations and
sample searches conducted by the line area, I am satisfied that they remain accurate.
As was previously communicated to you, the line area advised the following:
•  The OAIC uses a case management system called Resolve to register and
process IC review applications received.
•  A search was conducted using the data that is captured by Resolve, for
Information Commissioner (IC) review applications received by the OAIC for
matters where a section 55G decision was made. The search identified 1,352
matters. In some IC reviews, more than one section 55G decision was made by
the agency.
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•  Section 55G decisions issued in IC reviews were not automatically captured in
Resolve until approximately December 2019, when an additional data field was
added into Resolve.
•  Because of this previous lack of functionality, these 1,352 matters do not
include all section 55G decisions for the period from approximately 1 January
2018 to December 2019.
•  Due to this, each IC decision from this period that has not been recorded as
containing a section 55G decision would need to be opened and manually
checked to see if a section 55G decision had been made. These files would be in
addition to the 1,352 matters identified above.
•  For the purposes of calculating time to conduct search and retrieval, the line
area examined 10 of the 1,352 matters that was marked as having at least one
section 55G decision made. The line area estimated that it would take at least 3
minutes to identify the section 55G decision, copy the decision and save it in a
separate folder, consider whether it contained any exempt material, and
provide comments to the Legal Services Area, with a copy of that decision.
Accordingly, the line area advised that it would take a minimum of 67 hours to conduct
search and retrieval of the 1,352 IC review matters where Resolve identified that a section
55G decision was made.
As noted above, the figure of 1,352 IC matters identified as containing section 55 G
decisions does not include all relevant files from January 2018 to December 2019, due to
Resolve lacking this automatic recording feature during this time. Of the 1,352 IC review
matters identified as containing at least one section 55G decision, only 395 of these
matters are from January 2018 to December 2019.
Upon conducting a Resolve search, I have found there are 989 IC review record files from
2018 and 900 IC review records files from 2019.  This is a total of 1889 files. This means that,
removing the 395 files from this period identified by the line area’s search, there are
approximately 1,494 further files that would need to be reviewed in the course of
processing of your request, in order to determine whether or not these files contained one
or more section 55G decisions. Noting that in some instances it may be difficult to
immediately identify the section 55G decision in the file due to varying naming
conventions, and taking into consideration the line area’s advice above, I estimate that it
would also take an average of 3 minutes to:
•  identify whether a case contained a section 55G decision
•  copy the decision and save it in a separate folder,
•  consider whether it contained any exempt material, and
•  provide comments to the Legal Services Area, with a copy of that decision.
It therefore appears, at an average of 3 minutes per file, that searching these 1,494 files
would take at least a further 74.7 hours of processing time.
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I therefore calculate the total search and retrieval time it would take to process your
request as being at least 141.7 hours.
Decision making time
In addition to the time it would take the line area to conduct reasonable searches to locate
the documents within the scope of your FOI request, I must also consider the time that it
would take for the FOI decision maker to examine, assess, and consider exemptions for the
documents within the scope of your request. I must also consider the time it may take to
write the statement of reasons for the decision.
The original decision maker conducted a sample of 20 of the 1,352 IC reviews containing a
section 55G decision that were identified by the line area, to assist in calculating the time it
would take to process this FOI request.  In undertaking this internal review, I undertook a
re-sampling of the 20 of the 1,352 decisions marked on Resolve as containing a section 55G
decision as identified by the line area. Based on repeating this sampling, I came to the
following conclusions:
•  The average page numbers in the sampled section 55G decisions was 6.45 pages,
with the range of pages in the sample ranging between 2-22 pages. Extrapolating
this average number of pages across the 1,352 IC reviews marked as containing
section 55 G decisions, there would be approximately 8720 pages to be reviewed
and processed.
•  I note that of the 20 IC reviews sampled in undertaking this exercise, one file was
mislabel ed and there was in fact no section 55G decision in this matter. I note that
it is possible there may be a small number of the other Resolve files that have been
mislabelled in this manner. Based on this sampling, and assuming that 1/20 or 5%
of IC review files did not actually contain section 55G decisions, this would reduce
the number of IC reviews that do contain 55G decisions to 1284 IC reviews only, and
a total page estimate to 8284 pages.
•  In conducting this sample, I took an average of 3.05 minutes for each IC review
matter to:
o  Review each page of the decision
o  Identify third party information present in the documents
o  Identify other relevant exemptions that may be subject to exemption under
the FOI Act
o  Apply exemptions to the documents
•  Based on this sample, I estimate that it would take at least 65.27 hours to review
and assess the section 55G decisions in the estimated 1284 IC review matters.
•  As a conservative estimate, noting that the actual processing time may be much
higher, I estimate it would take the FOI decision maker 5 hours to prepare a
schedule of documents regarding the section 55G decisions from the IC review
matters within the scope of your request, and another 2 hours to draft the FOI
decision and reasons for decision.
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Combined with the estimates for conducting search and retrieval, based on the sample
conducted, I estimate that your request would require at least 213.96 hours or 5.32
weeks of total processing time.
This estimate does not take into account the additional time that would be required to:
•  Collate and prepare documents for third party consultation. All section 55G
decision documents contain sensitive and/or confidential personal information
about third-party entities, and as such consultation is required under sections 27A
of the FOI Act.
•  Assess each third-party’s response to our consultation, and edit and redact the
relevant information for release.
•  Consider and apply exemptions on the further section 55G decisions that would be
found upon searching the 1,494 IC review files from 2018-2019, as outlined above.
Substantial and unreasonable diversion of resources
On its face, 213.96 hours or 5.32 weeks of processing time is an unreasonable burden for
a single FOI request, taking into account the fact that the OAIC processes a number of FOI
requests at any one time, in addition to its other regulatory functions.
The FOI guidelines at [3.117] outline the fol owing relevant considerations when deciding
as to whether a practical refusal reason exists:
•  the staffing resources available to an agency or minister for FOI processing
•  whether the processing work requires the specialist attention of a minister or
senior officer, or can only be undertaken by one or more specialist officers in an
agency who have competing responsibilities the impact that processing a request
may have on other work in an agency or minister’s office, 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
Noting that the OAIC is a small agency, consisting of approximately 130 staff members,
processing your request would significantly impact on our operations. Processing your
request would mean diverting staff from their other functions, such as:
•  undertaking regulatory functions in both FOI and privacy
•  conducting IC review
•  delivering internal legal advice
•  improving agencies processes for managing FOI requests.
In the recent decision of 'ZE' and Services Australia (Freedom of Information) [2021] AICmr
87 (‘ZE v Services’) it was found by the Australian Information Commissioner at [39] that
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200 hours of processing time met the threshold for a substantial diversion of resources,
also finding at [47] that processing such a request would be unreasonable in the
circumstances. I note that OAIC is a significantly smaller agency than Services Australia,
and that the estimated processing time of this request exceeds 200 hours.
The FOI Guidelines also state at [3.117] that an additional factor that can be considered in
deciding whether a practical refusal exists is whether an applicant has cooperated in
framing a request in such a way so as to reduce the processing workload. In ZE v Services it
was noted at [21] that the applicant did not attempt to overcome the practical refusal
reason by revising the scope of the request and did not engage in the consultation process
in a meaningful way. The Freedom of Information Commissioner at [45]-[49] noted this
refusal to engage in the process as a relevant consideration in making her decision that
processing the applicant’s request would both substantially and unreasonably divert the
agency’s resources from its other operations. In this case, you have similarly declined to
engage with our attempt to assist you in framing your request in such a way that would
allow the OAIC to process it, as noted above. I have taken this factor into account in the
course of considering whether your request would unreasonably divert the agency’s
resources from its other operations.

I am therefore satisfied that, for the reasons outlined above, processing this request would
substantially and unreasonably divert the OAIC from its other operations, as under section
24 and 24AA of the FOI Act.
Document created under section 17 of the FOI Act
Your original FOI request contained the fol owing:
It may be simpler to provide a table of the date the s 55G decision was received by the
Office of the Australian Information Commissioner, the FOI agency it was received
from, and the date of the original FOI request (not the decision date) the s 55G
substitution relates to (as the s 55G decision states this).
This appears to be a request for the OAIC to produce the relevant information in a table
under section 17 of the FOI Act. I have considered whether it is possible to produce a table
as you have requested. Relevantly, the FOI Guidelines at [3.212] state that the obligation to
produce a written document arises if:
• the agency could produce a written document containing the information by using
a ‘computer or other equipment that is ordinarily available’ to the agency for
retrieving or col ating stored information (s 17(1)(c)(i)), or making a transcript from
a sound recording (s 17(1)(c)(ii)), and
• producing a written document would not substantially and unreasonably divert the
resources of the agency from its other operations (s 17(2)).
Relevant to your request, in the Full Federal Court case of Collection Point Pty Ltd v
Commissioner of Taxation [2013] FCAFC 67, the Court found at [43]-[44] that the reference
in section 17(1)(c)(i) to ‘computer or other equipment that is ordinarily available’ means ‘a
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functioning computer system including software, that can produce the requested
document without the aid of additional components which are not themselves ordinarily
available …’ The Court further observed that ‘[T]he computer or other equipment … must
be capable of functioning independently to col ate or retrieve stored information and to
produce the requested document’ [43]-[44].
For the reasons I have outlined above, and the limitations to the data that is captured by
OAIC’s case management system Resolve, the OAIC does not have access to any such
software that would generate such a table containing the information you have requested.
To create a document with the information you have requested would require an
employee of the OAIC to manually create a table containing the information you have
requested through reviewing and pul ing information from close to 3000 IC Review files.
For these reasons, I am satisfied that the documents you requested cannot be produced by
a computer or other equipment ordinarily available to the OAIC. As a result, the OAIC is not
required to create a document under section 17(1) of the FOI Act to satisfy your request.

Further information
Please see the following page for information about your review rights.

Yours sincerely,

Mark Lindsey-Temple
Mark Lindsey-Temple
Senior Lawyer

25 May 2022

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If you disagree with my decision
Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If
you wish to apply for IC review, you must do so in writing within 30 days. Your application
must provide an address (which can be an email address or fax number) that we can send
notices to, and include a copy of this letter. A request for IC review can be made in relation
to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable
that my decision be considered by the AAT, the Information Commissioner may decide not
to undertake an IC review.
s 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact xxx@xxxx.xxx.xx. More information is available on the Access our information page
on our website.

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Document Outline