With this letter being a notice under section 24AB of the FOI Act, the time to process
your request will be stopped until we have completed this consultation with you
regarding the scope of your request, as per section 24AB(8) of the FOI Act.
Notice of intention to refuse your request
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
freedom of information requests.
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. Based on the
information before me, including consideration of the time required to process this
FOI request, I consider to process these documents in scope of the FOI request in this
case will unreasonably divert the resources of the OAIC from its other operations.
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
Noting that the FOI guidelines state at [3.110] that
“…A request…must be read fairly
by an agency or minister, being mindful not to take a narrow or pedantic approach to
its construction,” I have interpreted your request as being for letters that contain the
statement you have outlined in your request, or that contains words to the same
effect (for instance, some letters contain a different phrase, that varies from your
request by one or two words but has in substance an identical meaning and arises in
a similar context).
Search and retrieval
Your request was referred to the relevant line area to conduct searches based on
your request. I have consulted with the relevant line area, the FOI Regulatory Group,
to help identify documents within the scope of your request. The line area provided a
spreadsheet which contains all IC review matters where an ITD was issued between 1
2
July 2021 to 30 June 2022. The line area advised that there are 422 matters which
would need to be manually reviewed in order to confirm whether the files contain a
document, or documents, within the scope of your request.
Estimated document identification time
A staff member of the Legal Services team undertook a sampling exercise of 20
Resolve files identified by the line area as potentially containing a document or
documents within the scope of your request. The staff member reported that it took
an average of 1.925 minutes to identify whether the resolve file contained a
document within the scope of your request, download the document, read and
consider whether the document contains any exempt material, and note the exempt
material to advise the decision maker in a table.
Accordingly, using this estimate provided by the line area, I estimate that it would
take approximately
13.15 hours to conduct search and retrieval for the 422 IC review
matters which potentially contain material within the scope of your request.
Decision making time
I have calculated the time it would the FOI decision maker to examine, assess and
edit the documents in scope in order to process and make a decision on your FOI
request.
A staff member from the Legal team conducted a sample of 10 of the documents
identified as being within the scope of your request, to help calculate the time it
would take for an FOI Officer to process your FOI request. The staff member advised
that many of the documents contained large amounts of personal information,
necessitated a close line by line reading of the documents at issue, in order to ensure
that all personal information was redacted.
Based on the sample, I calculate that:
• of the documents in the sample, the decisions ranged from 4 to 10 pages with
a consistently high level of complexity in the documents. Using the
extrapolated average of 6.7 pages in each decision from the sample and
applying this to the total number of files potentially containing letters within
scope of your request , it is estimated that there would be approximately 2827
pages to be reviewed and processed.
• in conducting the sample, it took an average of approximately 5.79 minutes in
each IC review matter to:
o review each page of the document
o identify personal information
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o identify any other relevant exemptions that may apply
o apply redactions where appropriate.
• based on the above sample, it would take at approximately
40.72 hours to
review and assess relevant documents in the 422 IC review matters.
• I conservatively estimate that it will take the FOI decision maker
5 hours to
prepare a schedule of documents within scope of your FOI request, and
another
2 hours to draft the FOI decision and reasons for decision.
I therefore estimate the approximate time it would take to process your request as
60.87 hours. I also calculate that it would take at least
15 hours to undertake the
following:
• Collate and prepare documents for third party consultation. There are at
least 10 documents within the scope of your request that contain business
information about third-party entities, as such it appears that consultation
would be required under section 27 the FOI Act.
• Assess each third-party’s response to our consultation, edit and redact the
relevant information for release.
It therefore appears that it would take at least
75.87 hours to process your request.
Which is equivalent to approximately 2 working weeks.
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 wel 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 (
the Guidelines)
identify matters that may be
relevant when deciding 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.
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The OAIC is a small agency, employing approximately 130 staff. The OAIC does not
have a dedicated FOI processing team. The FOI requests received by the OAIC are
processed by its Legal Services Team, which is also responsible for providing internal
legal advice to the OAIC’s line areas, as well as dealing with litigation matters
involving the OAIC. In processing FOI requests, Legal seeks assistance from the line
areas in conducting search and retrieval of the relevant documents in scope of the
FOI request. Once the line areas provide the relevant documents to the Legal
Services Team, its staff members will then proceed to assess, examine, edit and
decide on the documents, including undertaking any formal or information
consultations with third parties or other agencies if necessary.
I am satisfied that
processing this request would have a significant and negative
impact on both line areas’ ability to complete their regular duties, including
conducting the OAIC’s FOI functions and the processing of other FOI requests. This
makes it likely that staff will be diverted from their other work in the OAIC, including:
•
undertaking regulatory functions in FOI
•
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.
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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
Monday 22 August 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. 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:
• a specified one month period (e.g. July 2022); or
• reduce the number of documents you seek (e.g. “5 most recent letters sent
with the phrase “
The purpose of this letter is to advise you of my intention to
recommend the delegate of the Information Commissioner exercises the
discretion to decide not to continue to undertake a review of your IC review
application.”
Contact officer
If you would like to revise your request, or requires assistance in revising the scope of
the request, or would like to discuss this matter in general, please contact me on (02)
9942 4145 or at xxxxx@xxxx.xxx.xx
Yours sincerely
Margaret Sui
Senior Lawyer
8 August 2022
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