LEX 54669
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reasons for decision of Suzanne (Position Number 62210871),
Information Access Officer, Information Access Unit, Client Access and Rehabilitation Branch,
Department of Veterans’ Affairs
Applicant:
Mr Arthur Jordan
Decision date:
23 December 2022
FOI reference number:
LEX 54669
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Jordan,
Freedom of Information Request: LEX 54669
Purpose of this notice
1.
I have made a decision to refuse access to your revised request on the basis that the
following practical refusal reason exists:
a. To the extent that I can identify the documents falling within scope of your request,
processing your request, as best the Department can understand the terms, is likely
to result in a substantial and unreasonable diversion of the Department’s resources
from its other operations (section 24AA(1)(a) of the FOI Act).
Authority to make decision
2.
I, Suzanne (Position Number 62210871), Information Access Officer, Information Access
Unit, Client Rehabilitation Access Branch, am an officer authorised by the Secretary of the
Department to make decisions about access to documents in the possession of the
Department in accordance with section 23(1) of the FOI Act.
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Scope of your request
3.
On 9 November 2022 you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘…On 02 Mar 22, Alison Hale of DVA stated in a letter the following:-
"We will bear your views in mind when providing advice to the Government about
veterans’ legislation reform." As there has been a change of Government since May
2022, I seek a copy of the Department’s Incoming Government Brief for 2022. I also
seek any and all documents between the Department to the Minister(s) relating to
all instances of "... providing advice to the Government about veterans’ legislation
reform" for the last three (3) years. Any private details can be redacted, but NOT
business details of Australian Public Servants and other related Staff including but
not limited to names, email address and business phone numbers. These are to be
treated as "in scope".’…’
4.
On 16 November 2022, the Department acknowledged your request via email.
5.
On 12 December 2022, I formally consulted with you under section 24AB of the FOI Act. I
advised you, as is required under section 24AB of the FOI Act that I intend to refuse your
request on the basis that a practical refusal reason exists, as defined by section 24AA of the
FOI Act.
6.
On 12 December 2022, you agreed to revise the scope of your request as follows:
‘…I am prepared to narrow the time frame so that it now covers the period from 01
March 2022 to the date of the FOI request. I still require access to the Departments
Incoming Brief for 2022 as previously stated…’
7.
As an extension of time was applied to process your request in accordance with sections
15(6) and 15AA of the FOI Act, a decision on your request is due by 23 December 2022.
Material taken into account
8.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
refuse access to your request follows.
9.
I have taken the following material into account in making my decision:
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the terms of your request on 9 November 2022 and as revised 12 December 2022;
the types of information and documents that are in the Department’s possession;
the scope of your request;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:
- Section 15 - Request for Access
- Section 24AB – Request Consultation Process
- Section 24AA – Practical Refusal Reasons
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines); and
10. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for my decision
11. Section 24 of the FOI Act provides that if the Department is satisfied that a practical refusal
reason exists in relation to a request, the Department must undertake a consultation
process with you, and if, after that consultation process, the Department remains satisfied
that the practical refusal reason still exists, the Department may refuse to give you access to
the documents subject to the request.
When does a practical refusal reason exist (section 24AA of the FOI Act)
12. The practical refusal reason applicable to your request is that:
a. processing your request, as best the Department can understand the terms, is likely to
result in a substantial and unreasonable diversion of the Department’s resources from
its other operations (section 24AA(1)(a) of the FOI Act).
Request is substantial
13. Under section 24AA(2) of the FOI Act, the Department must have regard to the resources
that would have to be used for:
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identifying, locating or collating the documents within the filing system of the
agency;
deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document (including
resources that would have to be used for examining the document or consulting
with any person or body in relation to the request);
making a copy or an edited copy, of the document; and
notifying any interim or final decision on the request.
14. Further, the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (
FOI 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.
15. On behalf of the Department thank you for revising your scope. Unfortunately after further
review and sampling provided by the Parliamentary and Governance Division the request
remains subject to a practical refusal.
16. A search was performed for documents found to be ‘in scope’ within Parliamentary
Document Records (PDRs) using search criteria ‘legislation reform’ and ‘legislative reform’
for the period 1 March 2022 – 9 November 2022.
17. This resulted in the return of 68 PDRs as relevant to your request.
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18. Sampling of 4 PDRs returned: 21 documents; 121 associated pages; 2 PDRs each requiring
one Departmental business area consultation; and 2 PDRs requiring all Departmental
business areas to be consulted.
19. Consultations from Department business areas are required for assessment and review of
any document sensitivities and advice. It is difficult to advise the extent of time required for
this task as it will be highly variable and dependent on the content of the documentation.
20. Based on the sample size of 4 PDRs and the associated 121 pages, the average number of
pages per PDR equals 30.
21. 68 (total number of PDRs) x 30 (average number of pages) equals 2,040 pages.
22. This is a significant decrease in the number of pages from your initial request. However the
estimated processing time for just one business area, the Information Access Unit (IAU)
follows.
23. I estimate that 34 hours of processing time would be required to deal with this request. The
reasons for this are as follows:
I estimate that there are approximately 2,040 pages of material relevant to your
request. These pages are contained in over 68 PDR documents identified as being
relevant to your request.
As there are approximately 2,040 pages in scope, assuming this material can be
converted, collated, analysed and a decision made at an average of 1 minute per
page, this equates to approximately 34 (2,040/60) hours of processing time.
Further time would then be required for the release bundle to undergo quality
assurance and additional time to apply redactions to the release bundle.
In addition to the time indicated above, further time would be required for the
relevant business area to retrieve and collate the documents in scope, and
identified business areas consulted to review these documents to identify
document sensitivities.
A statement of reasons will also need to be provided to you. I anticipate that it
would take approximately 2 hours to draft the statement of reason for this
decision.
24. Taking these factors into account, I have concluded the request is substantial.
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Request is unreasonable
25. I have considered whether the substantial resource burden would be unreasonable having
regard to the following:
34 hours
of processing time is, at face value, an unreasonable burden for a single
FOI request, for a single business area, taking into account the need to process
multiple requests at any given time, and the impact such a burden would have on
responding to other FOI applicants and for the relevant business area to undertake
their designated duties.
Due to the broad nature of your request the relevant business areas would be
required to spend a significant amount of time and resources in document retrieval
and scoping activities.
26. Taking the above factors into account, I am of the view that the request as it currently stands
is unreasonable, as well as substantial.
27. As the practical refusal only pertains to part of your request, please be advised that your
request for a copy of the Department’s Incoming Government Brief for 2022 will be provided
as requested.
Summary of Decision
28. In summary, I am satisfied that:
a. processing your request, as best the Department can understand the terms, is likely
to result in a substantial and unreasonable diversion of the Department’s resources
from its other operations (section 24AA(1)(a) of the FOI Act).
29. Accordingly, I have decided to refuse your request under section 24(1) of the FOI Act.
Your rights of review
30. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step to resolve any concerns you may have.
Internal review
31. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
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date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.
32. You can make your application for Internal Review in one of the following ways:
Post:
Information Access Unit,
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
33. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the following ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
34. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
35. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
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Yours sincerely,
Suzanne (Position Number 62210871)
Information Access Officer
Information Access Unit
Client Rehabilitation and Access Branch
Department of Veterans’ Affairs
23 December 2022
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FOI 54669
Schedule 1
Schedule of relevant provisions in the FOI Act
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Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
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Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditionally exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
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Decisions to be made by authorised persons
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(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
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Power to refuse request--diversion of resources etc.
(1)
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 (see section 24AA), the agency or
Minister:
(a)
must undertake a request consultation process (see section 24AB); 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.
(2)
For the purposes of this section, the agency or Minister may treat 2 or more requests as a
single request if the agency or Minister is satisfied that:
(a)
the requests relate to the same document or documents; or
(b)
the requests relate to documents, the subject matter of which is substantially the
same.
24AA When does a practical refusal reason exist?
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(1)
For the purposes of section 24, a practical refusal reason exists in relation to a request for a
document if either (or both) of the following applies:
(a)
the work involved in processing the request:
(i)
in the case of an agency--would substantially and unreasonably divert the
resources of the agency from its other operations; or
(ii)
in the case of a Minister--would substantially and unreasonably interfere
with the performance of the Minister's functions;
(b)
the request does not satisfy the requirement in paragraph 15(2)(b) (identification
of documents).
(2)
Subject to subsection (3), but without limiting the matters to which the agency or Minister
may have regard, in deciding whether a practical refusal reason exists, the agency or
Minister must have regard to the resources that would have to be used for the following:
(a)
identifying, locating or collating the documents within the filing system of the
agency, or the office of the Minister;
(b)
deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document, including
resources that would have to be used for:
(i)
examining the document; or
(ii)
consulting with any person or body in relation to the request;
(c)
making a copy, or an edited copy, of the document;
(d)
notifying any interim or final decision on the request.
(3)
In deciding whether a practical refusal reason exists, an agency or Minister must not have
regard to:
(a)
any reasons that the applicant gives for requesting access; or
(b)
the agency's or Minister's belief as to what the applicant's reasons are for
requesting access; or
(c)
any maximum amount, specified in the regulations, payable as a charge for
processing a request of that kind.
24AB What is a request consultation process?
Scope
(1)
This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2)
The agency or Minister must give the applicant a written notice stating the following:
(a)
an intention to refuse access to a document in accordance with a request;
(b)
the practical refusal reason;
(c)
the name of an officer of the agency or member of staff of the Minister (the
contact person ) with whom the applicant may consult during a period;
(d)
details of how the applicant may contact the contact person;
(e)
that the period (the consultation period ) during which the applicant may consult
with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3)
If the applicant contacts the contact person during the consultation period in accordance
with the notice, the agency or Minister must take reasonable steps to assist the applicant
to revise the request so that the practical refusal reason no longer exists.
(4)
For the purposes of subsection (3), reasonable steps includes the following:
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(a)
giving the applicant a reasonable opportunity to consult with the contact person;
(b)
providing the applicant with any information that would assist the applicant to
revise the request.
Extension of consultation period
(5)
The contact person may, with the applicant's agreement, extend the consultation period by
written notice to the applicant.
Outcome of request consultation process
(6)
The applicant must, before the end of the consultation period, do one of the following, by
written notice to the agency or Minister:
(a)
withdraw the request;
(b)
make a revised request;
(c)
indicate that the applicant does not wish to revise the request.
(7)
The request is taken to have been withdrawn under subsection (6) at the end of the
consultation period if:
(a)
the applicant does not consult the contact person during the consultation period in
accordance with the notice; or
(b)
the applicant does not do one of the things mentioned in subsection (6) before the
end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8)
The period starting on the day an applicant is given a notice under subsection (2) and
ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c)
is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a
decision on the applicant's request within 30 days after the request is made.
No more than one request consultation process required
(9)
To avoid doubt, this section only obliges the agency or Minister to undertake a request
consultation process once for any particular request.
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