FOIREQ22 00141 Decision Sanitised.pdf

On 7 June 2022 we acknowledged your request and sought to clarify the
scope request:
“Could you please clarify the scope of your request. Would you please kindly advise
whether:
1.  you are seeking copies of the actual 55G decisions, or
2.  a table including the date the decision was received, the FOI agency it was received
from and the date of the original FOI request, or
3.  both of the above?
We would be grateful if you can please kindly let us know by close of business on
Thursday 9 June 2022. If we do not hear from you by this date we wil  assume that you
would like to access both a copy of the actual 55G decision and a table outlined in your
FOI request. “
Because you did not respond to our request for clarification of the scope of your
request, we at this point interpreted your request to be for copies of both the actual
s55G decisions and a table including the date the decision was received, the FOI
agency it was received from and the date of the original FOI request.
Request consultation process
On 29 June 2022, I wrote to you under s 24AB of the FOI Act to advise you of our
intention to refuse your request under s 24(1) of the FOI Act. This was because the
work involved in processing your request in its then-current form would substantially
and unreasonably divert the resources of the OAIC from its other operations. In the
letter, I advised that you could:
•  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•  not respond and your FOI request would be taken to have been withdrawn.
On 1 July 2022, you wrote to the OAIC with your consultation response. In your
response you revised your scope as follows:
“Of the 1,123 documents currently identified as in scope, I exclude as irrelevant all draft
and preliminary s 55G decisions as they are by definition not decisions made but
proposed ones that are deliberative and therefore exempt under the FOI Act (which is
why including them as in scope for calculating processing time is evidence of 'padding'
by the OAIC who would be aware such documents are exempt in ful  and therefore not
assessed for release).
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I also exclude as irrelevant all third party information of private individuals and
corporate entities that are not FOI agencies.
I also exclude as irrelevant the names and contact details of any Commonwealth
official or contractor other than OAIC employees.
As I am only interested in the fol owing, my view is that it would be most efficient and
practicable for the OAIC to create a table under s 17 of the Freedom of Information Act
(as done here
https://www.righttoknow.org.au/request/6767/response/19110/attach/4/FOI%203841
2%20Document%20created%20in%20accordance%20with%20section%2017%20of%2
0the%20FOI%20Act%20final.pdf even though said s 17 document was not produced
solely by computers - s 17 does not prevent an FOI agency from producing such a
document, and where it is more practicable and efficient to do so, the objects of the
Freedom of Information Act support such a decision being taken) to report the
following:
* the date the FOI request was received by the FOI agency (or internal review request
was received, where the s 55G substitution is for an internal review decision gone
deemed) to which the operationalised s 55G decision relates to
* the date the FOI agency issued the s 55G substituting decision to the FOI applicant
* the name of the FOI agency who made the s 55G substituting decision
This would be the most efficient and practical method of doing this FOI as it does not
require any consideration and review of any irrelevant information, and these details
are obtainable from the relevant Resolve report that records the s 55G substituting
decision as having been made by the FOI agency (which the FOI agency reports to the
OAIC).
If, and only if, the OAIC refuses to produce such a table under s 17, then the OAIC can
provide copy of:
* The first page of the operationalised (no drafts or preliminary documents) s 55G
substituting decision reported to it by the foi agency that made it, with all irrelevant
information as listed earlier excluded
* Copy of the Resolve report where that s 55G substituted decision is reported for each
operationalised s 55G decision.”

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Material taken into account
In making my decision, I have had regard to the following:
•  your FOI request FOIREQ22/00141 dated 6 June 2022
•  your amendment to your request dated 1 July 2022
•  consultation with the appropriate line area
•  sampling conducted
•  the FOI Act, in particular s 17, 24, 24AA, and 24AB
•  relevant case law
•  the FOI Guidelines issued by the Australian Information Commissioner under
s 93A of the FOI Act (the FOI Guidelines).
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
Having considered your response to the request consultation notice and the revised
scope of the request, I am of the view that the circumstances that would require us to
create a document in response to your request under s 17 of the FOI Act do not arise
in this instance, and therefore no obligation to create such a document exists in this
case. In light of this, I am satisfied that the work involved in processing your request
in its current form would still substantial y and unreasonably divert the resources of
this agency due to the substantial number of documents which fall within the scope
of the request (ss 24AA(1)(a)(i) and 24AA(2)(b)(i) of the FOI Act) and that a practical
refusal reason still exists under s 24AA of the  FOI Act.
Therefore, I have decided to refuse your request for documents on the basis that a
practical refusal reason exists under s 24 of the FOI Act.
Reasons for decision
Document created under s 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).”
On 1 July you restated this part of your request on the fol owing terms:
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“As I am only interested in the fol owing, my view is that it would be most  efficient and
practicable for the OAIC to create a table under s 17 of the Freedom of Information Act
(as done here
https://www.righttoknow.org.au/request/6767/response/19110/attach/4/FOI%203841
2%20Document%20created%20in%20accordance%20with%20section%2017%20of%2
0the%20FOI%20Act%20final.pdf even though said s 17 document was not produced
solely by computers - s 17 does not prevent an FOI agency from producing such a
document, and where it is more practicable and efficient to do so, the objects of the
Freedom of Information Act support such a decision being taken) to report the
following:
* the date the FOI request was received by the FOI agency (or internal review  request
was received, where the s 55G substitution is for an internal review decision gone
deemed) to which the operationalised s 55G decision relates to
* the date the FOI agency issued the s 55G substituting decision to the FOI applicant

* the name of the FOI agency who made the s 55G substituting decision
This would be the most efficient and practical method of doing this FOI as it does not
require any consideration and review of any irrelevant information, and these details
are obtainable from the relevant Resolve report that records the s 55G substituting
decision as having been made by the FOI agency (which the FOI agency reports to the
OAIC).”
This appears to be a request for the OAIC to produce the requested 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 collating stored information (s 17(1)(c)(i)), or making a
transcript from a sound recording (s 17(1)(c)(i )), and
•  producing a written document would not substantially and unreasonably
divert the resources of the agency from its other operations (s 17(2)).
The FOI Regulatory Group line area was consulted in order to determine whether a s
17 table was able to be generated in response to your request.
The line area advised the following:
•  The OAIC uses a case management system called Resolve to register and
process IC review applications received.
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•  In December 2019, 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 is not captured by Resolve’s reporting functionality, and nor is the date
that the FOI request was received by the relevant agency.
•  Therefore, as previously advised to you, there is no report that can be
generated in a discrete form that captures the information that you have
requested.
Based on this advice, it appears that it is not possible to use the Resolve program to
generate a report with the information that you have requested.
I note that, in order to create a report that contains the requested information, staff
of the OAIC would have to:
•  Manually interrogate each IC review that indicates that a s55G is recorded to
establish if a s55G decision was received (some of the files have not been
recorded accurately)
•  Peruse the Resolve file to obtain the date of the relevant s55G decision,
•  Obtain the date that the original FOI request/ internal review request was
made, and
•  Manually put this information into a table.
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 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
collate or retrieve stored information and to produce the requested document’ [44].
Similarly, in the recent case of YH and Australian Communications and Media
Authority (Freedom of information) [2021] AICmr 64, it was found that a “manual
process” of locating the requested information in number of other documents and
then manually collating this information in a new document goes beyond what s 17
requires, and therefore s 17 does not apply in these circumstances (see [30]-[33]).
For the reasons I have outlined above, due to limitations to the data that is captured
by Resolve, the OAIC does not have access to any such software that would generate
such a table containing the information you have requested, as per the requirements
of s 17. To create a document with the information you have requested would
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require an employee of the OAIC to manually create a table containing the
information you have requested through reviewing and pulling information from
over 1,000 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 able to create a document under s 17 of the FOI Act to satisfy
your request.
In your revised FOI request, you have requested for certain material/documents to
be provided to you if a s 17 table containing the requested information cannot be
produced. I will consider these aspects in the fol owing section of my decision.
Diversion of resources (s 24)
Under s 24(1) of the FOI Act, 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, the agency or Minister:
a)
must undertake a request consultation process; 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.
When does a practical refusal reason exist (s 24AA)
For the purposes of s 24, a practical refusal reason exists in relation to a request if the
work involved in processing the request would substantially 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 following activities specified in
s 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
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•  notifying an interim or final decision to the applicant.
Search and retrieval time
The FOI Regulatory Group was consulted to identify documents within the scope of
your request.
The line area undertook a sampling exercise of 10 documents from the Resolve files
that were marked as containing a s 55G decision. The line area advised that it would
take the approximately 3 minutes per Resolve file to open the file, identify whether
the Resolve file contains a s 55G decision, and note any exempt or out of scope
material of which to advise the decision maker. In light of the revised scope of your
request a staff member of the Legal team repeated this sampling and confirmed that
this process would still take an average of approximately 3 minutes per Resolve file
to access the file, identify whether a s 55G decision or decisions are within the file,
download the relevant documents (if relevant), and then conduct and record a
preliminary review of the first page of the document, or documents, to advise the
decision maker of the document’s contents and any potential y exempt material.
Legal conducted a search on Resolve to confirm the number of IC reviews where a s
55G decision was received in the period specified in your FOI request. This search
indicates that there were a total of 1,123 section 55G revised decisions received by
the OAIC in the time period of 1 January 2020 to 10 June 2022. Al  of these Resolve
files would need to be reviewed in order to process your request.
Accordingly, using this estimate provided by the line area, I estimate that it would
take at least 56.15 hours to conduct search and retrieval of the 1,123 IC review
matters where Resolve was able to identify that a section 55G decision was made. I
note that in your revised scope you excluded as irrelevant al  draft and preliminary
s 55G decisions. Unfortunately, this would not reduce the line areas processing time,
as they would still be required to manually open the files to identify whether a s 55G
decision exists on file, open the relevant documents, and review them to confirm
their contents, as outlined above.
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 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 would take to generate the requested Resolve reports (as per the final part
of your revised request) and examine, assess, and consider exemptions for the
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reports, as wel  as the time it would take to write the statement of reasons for the
decision.
A staff member from the Legal team conducted a sample of 20 of the 1,123 IC reviews
containing a section 55G decision that were identified, to assist in calculating the
time it would take for an FOI Officer to process your FOI request. The sampling is
approximately 1.7% of the total review decisions that we have identified.
Based on the sample, I calculate that:
•  In conducting the sample, it took an average of approximately 2.3 minutes in
each IC review matter to:
o  review the first page of the 55G decision (noting that your request is
limited to only the first page of each decision);
o  identify personal and business information about third-party entities
and redact this information as per your request; and
o  identify any other relevant exemptions that may apply.
•  I note that of the 20 IC reviews sampled in undertaking this exercise, one file
was mislabelled and there was in fact no section 55G decision in this matter. I
noted that it is possible there may be a small number of other Resolve files
that have been mislabel ed 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 contain s 55G
decisions to approximately 1067 IC reviews.
•  I note that of the 20 IC reviews initial y sampled in relation to your initial FOI
request (prior to the revised scope), two files were at early stages of the
process and no section 55G decisions had at that point been added to the file.
In the more recent sampling process, no such files were found. Based on both
samples, and assuming that 2/40 or 5% of IC review files were in initial stages
and did not actually contain section 55G decisions, this would further reduce
the number of s 55G decisions to approximately 1,011.
•  Based on this sample, I estimate that it would take at least 38.74 hours to
review and assess the first pages of the 55G decisions in the estimated 1,011
IC review matters.
•  As per the last part of your request for the Resolve reports of matters
containing a s 55G substituted decision, in my sample the average page
numbers in the Resolve reports generated was 4.4 pages, with the range of
pages in the sample ranging between 2-22 pages. Extrapolating this average
number of pages across the 1,011 files estimated to contain section 55G
decisions, there would be approximately 4,448 pages to be reviewed.
•  In conducting the sample of Resolve reports, I took an average of 2 minutes
for each IC review matter to:
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o  generate the Resolve report;
o  review each page of the report;
o  identify personal and business information about third-party entities
and redact this information as per your request;  and
o  identify other relevant exemptions that may be subject to exemption
under the FOI act
•  Based on this sample, I estimate it would take at least 33.7 hours to generate,
review and assess the Resolve reports for the section 55G decisions in the
estimated 1,011 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 documents and applicable
exemptions in these 1,011 IC review matters in scope of your request, and
another 2 hours to draft the FOI decision and reasons for decision.
Combined with the estimates for conducting search and retrieval, based on the
sample conducted, I estimate that your request would require at least 135.59 hours,
or approximately 3.3 weeks of total processing time.
Substantial and unreasonable diversion of resources
As noted in the FOI Guidelines, at [3.119], whether a practical refusal exists will be a
question of fact in the individual case.  I am satisfied that 135.59 hours 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
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OAIC is a small agency. It does not have a dedicated FOI team. While OAIC consists of
approximately 130 staff members in total, the FOI requests received by the OAIC are
processed by a handful of staff members within its small Legal Services Team.
Processing your request would have a significant impact on the line area operations
as well as the operations of the Legal Services Team. 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.
Relevantly, in the recent decision of ‘NY’ and Australian Building and Construction
Commission (Freedom of information) [2018] AICmr 19 it was found by the
Information Commissioner at [33] that 120 hours of processing time met the
threshold for a substantial and unreasonable diversion of resources for an agency of
similar size to the OAIC. I note also that that the estimated processing time of this
request exceeds that of this recent decision, being 135.59 hours.
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.
Conclusion
On the basis of the above considerations, I have found that processing your FOI
request would substantially and unreasonably divert the OAIC’s resources from its
other operations. As such, I have refused your request under s24 of the FOI Act.
Further information
Please see the following page for information about your review rights.
Yours sincerely

Margaret Sui
Senior Lawyer
8 July 2022

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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further 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 60 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.
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Section 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
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@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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