We have interpreted the scope in a similar manner here and would be
grateful if you can please confirm by Friday 4 November 2022. If we do not
hear from you by this time we wil proceed with processing your request on
the basis that the scope of your request only includes Information and
Privacy Commissioner Angelene Falk and Freedom of Information Commissioner
Leo Hardiman.
As we did not receive a response to that email, we confirm that we have interpreted
your request as only including Information and Privacy Commissioner Angelene Falk
and Freedom of Information Commissioner Leo Hardiman.
Timeframes for dealing with your request
The original due date of your request is 29 November 2022. 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)). 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 cal ed 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
Search and retrieval
Your request was referred to the relevant Commissioners’ executive assistants to
conduct searches based on your request. Searching and retrieving the relevant
documents has taken
2 hours. It has taken a further
13 hours to compile the
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internal document bundle and document schedule for the documents within the
scope of this request.
Examination and assessment time
Based on our col ation and preliminary review of the documents within the scope of
your request, I have considered the time it would take 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.
We advise the fol owing:
• We have reviewed the first 10 emails (including their attachments) by
chronological order within the scope of your request to assess their
complexity and any sensitivities or exemptions that may apply to the
particular documents (‘the sample’).
• These 10 emails and their attachments, excluding one attachment that
appears to be publicly available so was not included in this sample, total ed
35 pages.
• This assessment took approximately 1.5 minutes per page.
Accordingly, noting that there are
1835 pages within the scope of your request we
estimate that it would take at least
46.6 hours for the FOI case officer to assess the
pages within the scope of the request and identify exempt, irrelevant, and otherwise
sensitive material.
Third party consultation
Having reviewed the sample for the purposes of this s 24AB letter, I have identified 12
third parties that would need to be consulted under section 15(8) of the FOI Act. I
estimate that it will take on average 2 hours per third party to identify relevant
material, prepare third party consultation correspondence and review and consider
any submissions made by the relevant third party. I note that you have excluded the
“personal details of third party private individuals and private businesses,” from the
scope of your request
. We have interpreted this to exclude
both the personal
information of private individuals and also the business information of private
businesses. This does not exclude the following information which would require
consultation:
• Material related to authorities of foreign governments and international
organisations.
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I therefore estimate that it will take at least 24 hours to complete third party
consultation for these parties. We note the material relates to international
organisations, which we consider would be prudent to undertake consultation with
these organisations if we are proposing to release this material to you, particular via
a public forum on Right to Know. Noting that this is a sample of 10 documents plus
attachments, multiplying this sample by 10, in order to process the request, based
on the sampling results, I estimate that it would take a minimum of
240 hours to
complete third party consultation for the entire document bundle.
Decision making time
I conservatively estimate that it will take the FOI decision maker
2 hours to draft the
FOI decision and reasons for decision. Given the work of converting to PDF and
entering each of the documents on a schedule of documents has already been
completed during search and retrieval, I have not included this task in the estimate.
Combining these estimates for conducting search and retrieval, examination and
assessment, third party consultation, and the estimated time to draft the FOI
decision, I estimate that it would take a staff member of the OAIC at least
303.6
hours to process 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 (Cth) (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; and
• 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. 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 wil 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; and
• improving 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 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; or
• tel 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
6 December 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.
I note that in your request you stated the fol owing:
“For any practical refusal notice I give advance notice that I do not withdraw or
vary my foi”
However, as per section 24(1)(a) of the FOI Act, where an agency is satisfied that a
practical refusal reason exists, it
must undertake a request consultation process
before making a decision to refuse the request.
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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 wil 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 your request to the 10 most recent internal emails received by
Information Commissioner Falk or Commissioner Hardiman; and/or
• Removing attachments and all international government and international
organisation information from the scope of your FOI request.
Contact officer
If you would like to revise your request, or require assistance in revising the scope of
the request, or would like to discuss this matter in general, please contact me on (02)
9942 4296 or at xxxxx@xxxx.xxx.xx.
Yours sincerely
Molly Cooke
Lawyer
22 November 2022
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