Boto and Commonwealth Ombudsman (Freedom of information) - [2024] AATA 3439

Boto and Commonwealth Ombudsman (Freedom of information) [2024] AATA 3439 (27 September 2024)
ReviewNumber: 2023/1321, 2023/5026
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2023/1321 & 2023/5026
Re:Carla Boto & Pravindra Singh
APPLICANT

AndCommonwealth Ombudsman
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:27 September 2024
Place:Sydney

The decision by the respondent made on 5 December 2023, as amended on 9 April 2024, is affirmed.
..................................[sgd]......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – power to refuse request where practical refusal reason exists – whether two or more requests may be treated as a single request where subject matter is substantially the same – whether request consultation process was undertaken – whether work involved in processing request would substantially and unreasonably divert the resources of an agency from its other operations – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth) ss 9, 11, 15, 24, 24AA, 24AB, 61
Parliamentary Privileges Act 1987 (Cth)
CASES
Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995
Fletcher and Prime Minister of Australia [2013] AICmr 11
'QO' and Department of Human Services (Freedom of information) [2019] AICmr 46
Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762
Ridley and Chief Executive Officer, National Disability Insurance Agency (Freedom of information) [2023] AATA 3729
Singh and Commonwealth Ombudsman (Freedom of information) [2024] AATA 969
VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Cth)
Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Freedom of Information (Report, 1979)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
27 September 2024
INTRODUCTION

Ms Carla Boto and Mr Pravindra Singh (the applicants) seek review of a decision made by an authorised officer of the respondent on 5 December 2023, as amended by consent on 9 April 2024, to refuse their requests for access to documents held by the respondent (the reviewable decision).
The requests were refused on the ground that a practical refusal reason existed under section 24AA of the Freedom of Information Act 1982 (Cth) (FOI Act).
After reviewing the evidence presented to the Tribunal by both parties, I am satisfied that the respondent has discharged the onus of demonstrating that the work involved in processing the claims would result in a substantial and unreasonable diversion of the resources of the agency.[1] I am satisfied that a practical refusal reason exists, as defined by section 24AA of the FOI Act. My reasons for affirming the reviewable decision are set out below.
[1] The onus of persuasion rests upon the respondent, by reason of section 61 of the FOI Act. See Ridley and Chief Executive Officer, National Disability Insurance Agency (Freedom of information) [2023] AATA 3729, at [13], per DP Mellick AO SC; ‘QO’ and Department of Human Services (Freedom of information) [2019] AICmr 46, at [29]; VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619, per SM Puplick AM, at [43]; Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995, at [3], per Jagot J (as her Honour then was).
BACKGROUND
The application was heard by the Tribunal on 27 June 2024, with final submissions being received on 25 July 2024. The applicants were assisted by Mr Andrew Singh, their authorised representative.[2] The Singhs are not related. The Commonwealth Ombudsman (the respondent) was represented by Ms L. Butler, solicitor, Australian Government Solicitor.
[2] T-documents (2023/1321): T5a, 23. Mr Pravindra Singh describes Mr Andrew Singh as “a social justice advocate for members of the Fijian and Pacific Island communities”: see Singh and Commonwealth Ombudsman (Freedom of information) [2024] AATA 969 at [6].
In a Statement of Facts, Issues and Contentions (SFIC) filed on behalf of the applicants, Mr Singh describes these reviews as having a tortuous and acrimonious history.[3] That is an accurate description.
[3] Member’s file, item 2A at [1].
The (very) bare bones of this dispute may be traced to decisions made by the Department of Immigration and Border Protection on Mr Pravindra Singh’s immigration status. According to a joint statement made by the applicants, he came to Australia in 2002 on a tourist visa.[4] He took steps to renew his visa, using a migration agent, but unbeknown to him, the agent did not secure the renewal of his visa. Thirteen years later, in 2015, he advised Ms Boto that he did not hold a valid visa. In 2017 he reapplied for a visa. His application was declined because his original visa was subject to a ‘no stay condition’. He applied to have this condition removed. His application was again rejected. On 7 October 2017, his brother made a formal complaint on his behalf to the respondent. He says that respondent did not investigate the complaint. On 20 November 2018, he sought access to various documents held by the respondent under freedom of information (FOI) legislation. In around July 2019, the Department granted a waiver which allowed him to resubmit a visa application. Thereafter there were multiple dealings between the applicants and the respondent.
[4] Joint Statement of Applicants, member’s file, item 5, 9.
THE LEGISLATIVE FRAMEWORK
In performing its review function, decision-makers (and the Tribunal standing in the shoes of the original decision-maker) must have regard to the objects of the Act, and the Freedom of Information Guidelines (Guidelines) issued by the Information Commissioner under section 93A of the FOI Act.[5]
[5] Freedom of Information Act 1982 (Cth) (‘FOI Act’) s 9A.
The objects of the FOI Act are set out in section 3 of the FOI Act.
Objects--general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, 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.to give the Australian community access to information held by the Government of the Commonwealth.
The Guidelines issued by the Information Commissioner under section 93A do not have statutory force. They are subordinate to the FOI Act and to the decisional authority binding on the Tribunal.[6] They are however an important aid to the interpretation of the Act. They provide a precis of various parts of the FOI Act, and summarise decisions of courts, the Information Commissioner, and the Tribunal.[7]
[6] See Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [87].
[7] The Guidelines are updated from time to time. The most recent revision occurred in March 2024.
Obtaining access to documents
The right of access is set out in a powerful access clause. Section 11 provides that subject to exceptions provided for in the FOI Act, ‘every person’ has a legally enforceable right to obtain access in accordance with the Act to non-exempt documents of an agency, and non-exempt official documents of a Minister.[8]
[8] FOI Act s 11.
While section 11 provides for mandatory access, it also provides that access is not required to be given to a document at a particular time if, at that time, the document is an exempt document.[9] If a document is conditionally exempt at a particular time, access to the document must be granted unless access at that time would, on balance, be contrary to the public interest.[10]
[9] FOI Act s 11(4). ‘Document’ is broadly defined in section 4 to include any paper or other material on which there is writing or marks, figures, symbols or perforations ‘having a meaning for persons qualified to interpret them’. It includes any article or material ‘from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device’ or ‘on which information has been stored or recorded, either mechanically or electronically’. It includes ‘any other record of information’, including ‘a map, plan, drawing or photograph’.
[10] FOI Act s 11(5).
Section 15 sets out the requirements for requesting access. The request must be in writing and state that the request is an application for the purposes of the Act.[11] Importantly, under paragraph 15(2)(b) the request must provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it. The agency has a duty to take reasonable steps to assist the person to make the request in a manner that complies with the Act.[12]
[11] FOI Act s 15(2).
[12] FOI Act s 15(3).
A note to subsection 15(3) states that an agency or Minister may refuse to deal with a request if satisfied that a practical refusal reason exists, after undertaking the request consultation process (see section 24).
Resource implications
As noted by a learned member of this Tribunal, Senior Member Puplick AM, the genesis of FOI legislation in Australia may be traced to the 1979 Freedom of Information Report by the Senate Standing Committee on Constitutional and Legal Affairs.[13] The Senate Committee report recognised that the idea that any person could apply for any document, unless those documents were exempt under some other provision of the Act, could have serious resource implications for agencies required to administer requests.[14] The FOI Act therefore enshrined the concept of a practical refusal reason for refusing an access claim.
[13] Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Freedom of Information (Report, 1979).
[14] VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619 at [13]. Senior Member Puplick was a member of the Senate Standing Committee on Constitutional and Legal Affairs and involved in authorship of the Report. He subsequently held the office of Privacy Commissioner of New South Wales.
Under paragraph 24(1)(b) an agency or Minister may refuse to give access to a document in accordance with the request if satisfied that a practical refusal reason exists in relation to the request.
Section 24AA provides that a practical refusal reason exists in relation to a request for a document if ‘the work involved in processing the request’ would ‘substantially and unreasonably divert the resources of the agency from its other operations’ and/or the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
This deceptively simple provision will often raise difficult questions about quantifying the amount of work involved in identifying and assessing relevant documents, the resources available to the agency to perform its statutory functions, and whether processing the requests would ‘substantially and unreasonably’ divert the resources of the agency from its other operations.
Whether a diversion is ‘unreasonable’ is a matter for evaluation considering all the circumstances. As noted by Jagot J (as her Honour then was) questions of the public interest may arise in the context of determining whether a diversion is unreasonable.[15]
[15] Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 at [77].
The inherent imprecision in the concept of ‘substantially’ has been the subject of judicial comment. An unreasonable diversion that raises a concern about the allocation of resources within an agency is not sufficient to create a practical refusal reason, the diversion must be substantial. In a different context, that relating to the loss caused by a secondary boycott, Bowen CJ. said:
31. The word "substantial" would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling (1948) AC 291, at pp 316-317). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relativity, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.[16]
[16] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367, 382 (Bowen CJ).
It is generally accepted that a diversion must be more than trivial or nominal to be substantial. In Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762 Deputy President Forgie stated:
the work involved in processing a request will only substantially and unreasonably divert the resources of an agency if the work is real or of substance and not insubstantial or nominal and if it is unreasonable having regard to factors, such as workload and those to which I have referred above.[17]
[17] Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762, 767 [115] (Deputy President Forgie).
In deciding whether a practical refusal reason exists the Tribunal is prohibited from having regard to (a) any reasons that the applicant gives for requesting access; or (b) the agency'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.[18]
[18] FOI Act s 24AA(3).
In accordance with subsection 24AA(2), the Tribunal must however have regard to the resources that would have to be used for certain purposes, namely:
(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.
The list is not exhaustive, and the Tribunal may consider other factors.
The Guidelines note that the evident purpose of this practical refusal ground is to ensure that the capacity of agencies and ministers to discharge their normal functions is not undermined by processing FOI requests that are unreasonably burdensome. On the other hand, it is implicit in the objectives of the FOI Act that agencies and ministers must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures.[19]
[19] Guidelines at [3.115].
Paragraph 3.117 of the Guidelines sets out a non-exhaustive list of other matters that may be relevant in deciding if a practical refusal reason exists.[20] The list includes:
·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
·as to a request to a minister — other responsibilities of the minister and demands on the minister’s time, and whether it is open to the minister to obtain assistance from an agency in processing the request.
[20] Citing Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10; Fletcher and Prime Minister of Australia [2013] AICmr 11; and Langer v Telstra Corporation Ltd [2002] AATA 341.
Paragraph 3.121 of the Guidelines recommends that agencies examine a sample of the documents to assess the complexity of the material against whether the work involved in processing the request would constitute a substantial and unreasonable diversion of resources from the agency’s other operations. Importantly, the Guidelines recommend that a person with appropriate knowledge or expertise should assess the sample of the documents, looking at each document as if they were making a decision on access, including indicating the number of documents that could be released in an edited form.[21]
[21] Citing Paul Farrell and Prime Minister of Australia (Freedom of information) [2017] AICmr 44 at [25].
However, as emphasised by the Guidelines, each case should be assessed on its own merits, and the findings in individual AAT and IC review decisions which discuss estimated processing times are viewed in that light. Paragraph 3.119 states (omitting footnotes):
3.119 Whether a practical refusal reason exists will be a question of fact in the individual case. Bearing in mind the range of matters that must and can be considered, it is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason. Agencies should not adopt a ‘ceiling’ in relation to processing times; for example, deciding that a practical refusal reason exists once the estimated processing time exceeds 40 hours. Rather, each case should be assessed on its own merits, and the findings in individual AAT and IC review decisions which discuss estimated processing times should be viewed in that light.
In VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619, the Tribunal stated:
82. The process of this decision making involves several steps as spelt out in Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762 at [111]-[115]. In the first instance the agency must make an assessment of the amount of work involved. Two things should be said of this. The first is that the Tribunal in its merits-review capacity is not bound to accept the calculations of the agency if it has grounds for thinking them unsubstantiated. The second is that the number of hours involved is not, on its own, sufficient to establish that a practical refusal reason has been established.
83. Secondly, the diversion of resources must be both “substantial” and “unreasonable”. According to the Information Commissioner’s FOI Guidelines “There may be circumstances where the processing of an applicant’s request would have a substantial effect on the agency or minister… but may not necessarily be unreasonable in the circumstances.”
84. For instance, a very large and well-resourced agency may find it much less burdensome to deal with a request than a smaller agency, especially if it has resources such as a dedicated FOI branch or unit.
85. By contrast, in small agencies it has been accepted that consideration should be given to the availability “of the resources likely to be necessary in order to comply.” As the New South Wales Administrative Decisions Tribunal said in Cainfrano v Director General, Premier’s Department [2006] NSWADT 137 at [62] relevant factors include “whether the request is a reasonably manageable one given due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications”.
86. Similarly, in Western Australia decisions have been made that times calculated as being as little as 30 hours, or indeed even 14 hours could be considered as unreasonable when directed at small agencies.

Senior Member Puplick AM considered that what constitutes a valid practical refusal reason is agency-specific and resource-dependent; however, a burden of more than 200 hours would ‘almost certainly make the threshold of a rational and objective test’.[22]
[22] VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619.
The agency or Minister can only refuse access on this ground after undertaking a mandatory ‘request consultation process’ as set out in section 24AB of the FOI Act. If an agency forms the view that a practical refusal reason exists and that the request is therefore likely to be refused, it is required to inform the applicant in writing of its intention and the practical refusal reason.[23] It is then required to take reasonable steps to assist the applicant to revise the request so that a practical refusal reason no longer exists. The period for consultation may be extended. This process was followed in the present case and led to the revisions of the original claims.
[23] FOI Act s 24AB.
The onus lies upon the respondent to demonstrate that the work involved in processing the claims would result in a substantial and unreasonable diversion of the resources of the agency.[24]
[24] FOI Act s 61. See footnote [1] above.
THE PRESENT CASE
The antecedents of the dispute between the applicants and various government agencies are set out in the introduction. This review relates to two requests made by Mr Singh on behalf of the applicants.
The first access claim was made by letter dated 31 May 2022 and consisted of 33 individual requests.[25] On 8 July 2022, an authorised officer of the respondent refused the request under subsection 24(1) of the FOI Act, as the decision-maker was satisfied that a practical refusal reason still existed. This decision was made following a request consultation process which led to some adjustment to the claimed documents. On 26 February 2023, the applicants applied to the Tribunal for review of the respondent’s decision dated 8 July 2022.
[25] T-documents (2023/1321): T4, 17-19.
The second access claim was made by letter dated 1 February 2023, and consisted of 15 individual requests.[26] Due to a processing delay, the respondent was deemed to have made a refusal decision on 3 March 2023.[27]
[26] T-documents (2023/5026): T3, 18.
[27] RSFIC [11]-[21]
On 9 July 2023, the applicants applied to the Tribunal for review of the respondent’s deemed refusal decision.
On 10 October 2023, the Tribunal remitted the decisions under review to the respondent for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
On 25 October 2023, the respondent sent the applicants a new request consultation notice in accordance with section 24AB of the FOI Act.
On 5 December 2023, Mr David Fintan, as the authorised officer, made two decisions in respect of the claim. He decided that the subject matter of the requested documents made on 31 May 2022 and 1 February 2023 was substantially the same and decided to treat the requests as a single request for the purposes of subsection 24(2) of the FOI Act.[28] He also found that a practical refusal reason existed in relation to the requests for access and refused access. The authorised officer was satisfied by reference to paragraph 24AA(1)(a)(i) that the work required to process the request would substantially and unreasonably divert the resources of the Ombudsman from its other operations.[29] The applicants do not agree with either decision.
[28] See Annexure DJF-4 to Fintan affidavit, [38]-[39].
[29] See Annexure DJF-4 to Fintan affidavit, [37].
In his written decision, Mr Fintan noted that:
·The estimated number of over 500 items and 2000 pages of material for the 31 May 2022 request was just the first point of the 32 points in that request. The other parts of the request that most significantly add to the resources burden have previously been brought to your attention (including the original request consultation and FOI decision). These include points requesting all diary entries of Ombudsman officers for more than a 12-month period and communications with the lawyers instructed in dealing with the applicants’ privacy complaint before the OAIC.
·The second request of 1 February 2023 on its own would also require what is in my view a substantial and unreasonable diversion of resources with over 3000 pages of material over 14 parts, including parts specifically directed at the Ombudsman’s legal communications and employment information about Ombudsman officers.
Mr Fintan confirmed that the Ombudsman’s legal team had approximately five fulltime equivalent (FTE) staff. However, the diversion of resources that would be required to deal with processing the requests was such that, in his opinion, a practical refusal reason existed within the meaning of the statutory provision.
The modified request – 22 December 2023
On 22 December 2023, the applicants agreed to withdraw certain parts of both requests and to modify two parts of the request in 2023/1321.[30]
[30] See Appendix A.
On 9 April 2024, the Tribunal made consent orders under paragraph 26(1)(b) of the AAT Act ‘to the effect that the respondent considers the practical refusal reason still exists in respect of the Applicant’s modified scope of requests…as described in Attachment A.’[31]
[31] Member’s file, item 9.
The decision under review is therefore the respondent’s decision made on 5 December 2023, as amended on 9 April 2024, in respect of the applicants’ FOI requests as revised on 22 December 2023.
The modified requests for AAT 2023/1321 and 2023/5025 are attached to the Order made on 9 April 2024 and set out as Appendix A to this decision.[32]
[32] RSFIC [33].
FILED MATERIALS
The key documents involved in this review are:
·Applicants’ Statement of Facts, Issues and Contentions (ASFIC) dated 27 May 2024 and attachments;
·Applicant’s submissions in reply dated 19 June 2024;
·Applicant’s Further Response to Directions dated 18 July 2024;
·Joint statement of applicants dated 27 May 2024 and attachments;
·Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 26 April 2024 and attachments;
·Affidavit by Mr David Fintan dated 24 April 2024;
·Reconsideration decision by Tribunal dated 9 April 2024; and
·Statement of Admitted Facts, dated 26 June 2024.
EVIDENCE
The applicants provided a joint unsworn statement dated 27 May 2024, to which were appended eight attachments. The statement contains multiple allegations of bad faith by the respondent and its officers, and for the most part I have treated it as a submission by the applicants, rather than evidence. Mr Singh did not call the applicants to give evidence, stating simply that they relied on their statement.[33] Their statement provides:
3. We say that the Ombudsman is refusing to provide the required information because he believes Andrew is assisting us to publicly expose the mistreatment that we suffered due to unlawful conduct of the Ombudsman and his staff, both past and present. The information that Andrew is seeking on our behalf will also enable us to seek assistance from our member of Parliament to raise our case in Parliament. It will further assist Andrew (with the help of his friends) to refer those exposed to the newly established Corruption Commission. We also wish to take legal action against the ombudsman and his staff…
5. The Ombudsman's practical refusal claim has other problems. This is not the first time the Ombudsman has tried to hide documents from us to prevent us publicly exposing the mistreatment and misconduct of his employees. He did in the previous reviews stated above. After Andrew brought the matter in the AAT the Ombudsman released further documents. But Ombudsman still refused the ones needed to start legal action or refer matters to the corruption commission or other authorities…
33. Finally, we dispute the Ombudsman's claim that due to our conduct and that of Andrew the AAT should refuse the requests. As stated above the Ombudsman's officers (past and present) have not treated us fairly. They continue to hide information knowing that giving such information will cause them or the Government problems…
36. The Robodebt Royal Commission Report and various other newspaper reports prove that the Ombudsman and his senior officials failed to conduct proper investigation and accepted what Centrelink told them. In Robodebt millions of people were effected. They have received justice. We have not. We cannot unless the Ombudsman provides us the required information.
37. We do not accept that Andrew or ourselves have made unsubstantiated allegations. The officer who dealt with our request in 2023/5026 did not acknowledge the request in time as required by law. He did not ask us or Andrew for extension of time. He applied to the Commissioner. The officer then provided incorrect information to the Commissioner to get the extension. The officer also advised the Commissioner that the Ombudsman had prepared a letter which will be sent to Andrew no later than 19/5/23. Andrew advised us that he never received any such letter and could not find any such letter in the T Documents that the Ombudsman's lawyers gave us and the AAT.
38. If we did not get Andrew's help in fighting the Immigration Department for Pravindra to stay legally in Australia, Immigration Department would have deported him by now.
39. Similarly, if Andrew did not assist us regarding the breach of our privacy complaint the Ombudsman would have never investigated the matter or paid any compensation.
[33] Transcript, 27 June 2024, 4.
As noted above, the Tribunal is prohibited from having regard to any reasons that the applicant gives for requesting access, and many of these statements are irrelevant to the task of the Tribunal.[34]
[34] FOI Act s 11(2).
On 24 April 2024, Mr Fintan affirmed an affidavit for the purpose of these proceedings. He affirmed that he was a Senior Assistant Ombudsman, reporting to the Ombudsman through the Deputy Ombudsman. He was one of four such officers. His duties included management of the respondent’s in-house legal team. The functions of the legal team included dealing with requests to the respondent for access to documents under the FOI Act, reviews of decisions, and all aspects of the respondent’s compliance with requirements under the FOI Act.
Mr Fintan stated that he had worked full time in the Australian Public Service (APS) or as a legal practitioner since 2001. He was admitted as a legal practitioner of the Supreme Court of the ACT in 2001. The purpose of the affidavit was to explain the respondent’s searches for documents, and the resources that would be involved in processing the applicants' FOI requests and the impact that this would have on the other operations of the respondent.
The respondent also tendered a Statement of Admitted Facts, dated 26 June 2024, relating to certain information relied upon by applicants, including Mr Fintan’s total remuneration in the 2022-23 financial year, and the placement of various agencies, including the respondent, within the Attorney-General’s portfolio. The attachment included information about the respondent’s employee numbers, complaint numbers for the financial year 2022-23, FOI requests for the past two years, and membership of the respondent’s executive committee.
The applicants’ position is set out in their SFIC, which states:
14. The Applicants challenge the respondent’s practical refusal reason contention based on David Fintan (Fintan) affidavit. Fintan’s evidence lacks objectivity and reliability. His evidence cannot be independently corroborated. It is discredited by other evidence in the public domain. The veracity of some of his deposition is questionable.
15. The Applicants core submissions include:
·The time estimates are either overstated or incorrect;
·The work requirement estimates are based on perceptions pitched at a high level of generality;
·The requests have been combined to hoodwink the Tribunal;
·The respondent is provided with sufficient resources by the Australian Parliament but chooses not to allocate them to fulfil his FOI obligations;
·The respondent’s practical refusal reason is based on his belief that disclosure of documents will enable the Applicants or their representative (the representative) causing further embarrassment to his agency; and
·Any diversion of resources is or would be reasonable having regard to several factors catalogued throughout these submissions.
I reiterate that the onus of demonstrating that the work involved in processing the claims would result in a substantial and unreasonable diversion of resources rests upon the respondent.
CONSIDERATION
Was the decision made on 5 December 2023 to treat the requests as a single request correct?
Subsection 24(2) of the FOI Act provides:
(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.
The modified claims are set out in Attachment A to the order made by the AAT on 9 April 2024. Mr Fintan stated in his affidavit dated 24 April 2024 that he considered that the requests should be treated as a single request because they related to substantially the same subject matter.
Why I consider the documents relate to substantially the same subject matter.
38. As noted above, in making the reconsideration decision I treated the two requests as a single request under s 24(2) of the FOI Act as I considered the requests relate to documents, the subject matter of which is substantially the same.
39. I remain of the view that the requests relate to substantially the same subject matter.
39.1. The two requests reflect, and need to be understood in, the context of the applicants' extensive dealings with the Office as set out in DJF−1.
39.2. The terms of the two requests refer to the applicants' previous matters and indicate that the Office is required to consider those matters when processing the requests.
39.3. As is set out below in relation to the searches and workload for the requests, the categories of material sought in the two requests overlap and are intertwined. The two requests would need to be processed together by an officer with an understanding of the span of issues arising from these matters and the previous requests, complaints and litigation to which they are connected.[35]
[35] Member’s file, item 6.
The attachment DJF-1 to Mr Fintan’s affidavit sets out in some detail a chronology of the applicant’s dealings with the respondent.
Mr Singh’s response to the affidavit is set out in his statement of 27 May 2024.[36]
[55] The information contained in Fintan’s affidavit is selective to fit the respondent’s narrative. As noted below some of the information has been deliberately omitted to mask the respondent’s egregious conduct in his dealings with the Applicants, avoid bad publicity or both.
[56] The complete history of the Applicants previous dealings with the respondent is stated in the Applicants JS27 that includes an affidavit Pravindra gave in 2020/5740 and 2020/7746. It contains sealed copy of his judicial review application NSD 1701/2018.
[57] As deposed in his application the first FOI request was made in 2018. The respondent’s reference number to this was 2018-30017. There was another FOI request. The respondent’s reference number to this was 2018-50157. A third request was also made; the respondent’s reference number to this was 2018-509377. All three requests were made on Pravindra’s behalf by his brother Navindar.
[58] The decisions on all these requests were made by [CO employee]. All ended up before the AIC. By the time the representative took over, he only pursued one of the reviews. The decision on this matter was given in April 2022 – ABK v CO28 where AIC rejected the respondent’s claim to withhold documents on privacy grounds.
[59] The Tribunal should note the following. First, the respondent did not mention about the AIC’s decision in his 2022-2023 annual report. Second, some of the information that [the CO employee] released in relation to the requests should have been published on the respondent’s FOI disclosure log within 10 working days as required by s11C of the Act. The respondent did not comply with this provision.
[60] These matters again demonstrate that the respondent is not complying with statutory duties and his practical refusal reason is hogwash.
[36] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 27 May 2024 at [55]-[60]: member’s file, item 2A.
I have reviewed Annexure DJF-1 to Mr Fintan’s affidavit. I also note the affidavit sworn by Mr Pravindra Singh on 30 June 2021. I do not think it necessary to determine whether Mr Fintan’s summary contained at Annexure DJF-1 is a fully exhaustive account of all dealings with Mr Singh and the applicants. Suffice to say, that which is set out in Mr Fintan’s summary reveals a substantial history going back over several years. There is a long history to these claims, which as Mr Singh says have been conducted in a tortuous and acrimonious manner.
The Respondents contends that the two requests relate to documents the subject matter of which is substantially the same, and relies on Mr Fintan’s affidavit to support a finding that:
80.1. Overall, both of the requests relate to the applicants’ extensive dealings with the respondent (as detailed at paragraph 48-49 above and in Annexure DJF-1).
80.2. The terms of the requests refer to the applicants’ previous matters, and indicate that the Office is required to consider those matters when processing the requests. In 2023/1321, the request is for documents about the resolution of the privacy breach complaint. In 2023/5026, the request is for documents about the respondent’s response to the applicants’ complaints.
80.3. The two requests would need to be processed together by an officer with an understanding of the issues arising from these matters and the previous requests, complaints and litigation to which they are connected.
80.4. The documents in scope of the requests include documents about specific officers of the respondent, legal communications, and organisational information and procedures. By way of example, both requests seek access to work diaries, invoices for payment, correspondence with legal representatives, the organisational chart for the legal services section, procedures for determining breaches of APS code of conduct, disciplinary action or findings of breach of Code of Conduct and sanctions, information about privacy breaches, rule 18 approvals under the Public Governance, Performance and Accountability Act 2013 (Cth), and recruitment information, including job descriptions, employment, and staff movements to other agencies.
81. The respondent submits that there is a clear nexus between the subject matter of each request, which relate to the respondent’s operations and personnel, and handling of the applicants’ requests, complaints and related litigation.
Result
82. On a plain reading of the requests (at Annexure A and as summarised at [80]-[81] above) and having regard to the evidence of Mr Fintan, the Tribunal should find that the requests relate to documents the subject matter of which is substantially the same.
The Table prepared by the Director of the legal team at the Commonwealth Ombudsman (the Director) referred to in her memorandum of 24 April 2024 shows that for each of the claims, arranged in terms of categories, there is a significant overlap in the requests.[37] The various categories include communications with law firms about litigation; other information around previous FOI matters; personal and employment information about Ombudsman employees; privacy complaint material, and other corporate material. The Table clearly demonstrates that in each of these categories there are multiple requests relating to 2023/1321 and 2023/5026.
[37] Annexure DJF-6 to Mr Fintan’s affidavit, PDF 103.

I am abundantly satisfied that the requests relate to documents, the subject matter of which is substantially the same, and that therefore the respondent was entitled to treat the two requests as a single request under paragraph 24(2)(b).
Was the decision made on 5 December 2023 to refuse the requests correct, based on a practical refusal reason?
As noted above, under paragraph 24(1)(b) an agency or Minister may refuse to give access to a document in accordance with the request if satisfied that a ‘practical refusal reason’ exists in relation to the request. Under section 24AA, a practical refusal reason exists in relation to a request for a document if ‘the work involved in processing the request’ would ‘substantially and unreasonably divert the resources of the agency from its other operations’.[38] This formula contains two components: the first involves quantifying the work involved, and the second involves making a judgment about the possible diversion of resources away from the agency’s ‘other operations’.
[38] ‘[A]nd/or the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents)’. This element is not relevant in this case.
The first issue – quantifying ‘the work involved’
In making the reviewable decision as authorised officer, Mr Fintan relied heavily on the information provided by the Director in her memorandum of 24 April 2024.[39]
[39] Annexure DJF-6 to Mr Fintan’s affidavit, PDF 103.
The schedule prepared by the Director describing the various categories of access claims has been described above. The process of identifying relevant documents is set out in her memorandum, with information about the expected data source, and a precise time estimate for each.[40]
[40] Ibid, 104-106.
Mr Fintan adopted the Director’s reasons for concluding that a practical refusal reason existed, and in so doing indicated that he regarded her estimate of 172.5 hours of processing time as credible and conservative.
Mr Fintan’s affidavit states:
Estimated time to process the requests
54. Based on the searches and enquiries undertaken as described in the memorandum, [the Director] estimates that some 1,943 documents relevant to the requests would be returned as a result of searches and need to be retrieved and dealt with in a decision.
55. As described above, processing the requests would involve the following steps:
55.1. searches and retrieval of documents into a file including conversion to a PDF Form
55.2. assessment of the content of the documents and likely impact of release, and marking up the documents with proposed exemptions
55.3. consultation for some documents (the categories where consultation I anticipated to be required are indicated in the memorandum; however, the full extent of consultation cannot be known until the documents are retrieved and reviewed)
55.4. preparing a schedule of documents and reasons for the decision for each document
55.5. for parts where there are no documents identified, ensuring that all reasonable searches have been undertaken and preparing a decision explaining this to the applicants
55.6. collating a bundle of the requested documents, applying relevant redaction and sending this to the applicants.
56. I consider [the Director’s] estimate of 172 hours and 37 minutes processing time to be a credible, and reasonably conservative, estimate for a member of the Legal team to process the requests. I note that [the Director] is an efficient and effective officer with relevant experience, including having read into the history of these applications. If these requests are required to be processed, another officer from the Legal team would be responsible for undertaking that task. It is difficult for me to imagine how the requests could be processed in less time than [the Director's] estimate and I consider it is likely that substantially more time could be required.
57. I also note that the time estimated to process the request only factors in the FOI officer's time, and not the time required for other parts of the Office, where they may be required to assist with searches or provide input on sensitivities in documents (such as the human resources area assisting with sensitive personnel documents).
58. In addition to the amount set out at [56] above, I note that the [Director] estimates that she has already spent in excess of 20 hours processing the requests to this point in time and earlier decision−makers have spent at least similar amount of time considering the earlier iterations of the requests.
59. While the applicants have narrowed the scope of the requests in some areas, the scope still spans 40 of the original 48 points. In addition to the number and nature of documents requested under these points, I consider the interconnected nature of the requests and the proceedings to which they relate add further complexity, which would impact the workload associated with processing the requests.
Mr Singh challenged Mr Fintan’s opinion that the matter was complex and drew attention to a decision of the Information Commissioner in which it was stated that the matters are not highly contested or complex.[41] The respondent suggested that this comment was in the context of the question whether the matter should be referred directly to the AAT, rather than whether the processing of the access request was inherently complex.
[41] T-documents (2023/1321): T10, 57.
The respondent’s SFIC states:
Application to the documents – required resources are substantial
71. The respondent has assessed the work involved to process the requests and has substantiated the searches and calculations undertaken. The respondent estimates that 1943 documents would be captured by the request, which would involve the further work for an FOI officer of at least 172 hours and 37 minutes. The basis for this estimate is set out extensively in Mr Fintan’s affidavit and supported by a detailed and considered memorandum prepared by the Director of the Legal team.
72. That estimate does not include the time already spent by the Office to undertake assessments of the workload involved in processing the requests at first instance, during the reconsideration of the remitted decisions, or following the applicants’ modification of the requests after that was completed.
73. As Mr Fintan’s affidavit shows:
73.1. the applicants’ revisions to the scope in December 2023 do not address the more problematic parts of the requests, particularly legal communications
73.2. there are still 40 parts across the two requests, which fall into five broad categories of information:
73.2.1. Communications with external law firms about litigation (invoices with narrations etc)
73.2.2. Other information around previous freedom of information matters
73.2.3. Personal and employment information about Ombudsman employees
73.2.4. Privacy complaint material
73.2.5. Other corporate material.
73.3. from the Ombudsman’s detailed searches to date, the total document count is estimated to be at least 1943 documents, including 609 diary entries
73.4. if the requests were processed, further searches for documents would be required, which would be likely return additional documents. The respondent has not undertaken those further searches due to the significant resource burden
73.5. the documents and any attachments would need to be extracted to ascertain a full page count for the requests, which would be very time consuming in itself
73.6. several consultations would be necessary, including with Comcover, Gadens, current and former members of Executive, and officers in the legal team
73.7. the substantial complexity of the searches and required consultations are significant workload factors over and above the work required to review and determine the decision on access to the documents. Resources would be required particularly across the following areas of the respondent:
73.7.1. Legal team (which includes the FOI team and litigation management)
73.7.2. Executive members whose documents are requested (Lisa Collett, COO; Penny McKay, Deputy Ombudsman; and David Fintan, Senior Assistant Ombudsman)
73.7.3. Human Resources (accessing a range of personnel documents)
73.7.4. Finance (regarding legal invoices)
73.7.5. IT (for additional searches and ascertaining the technical options available to produce documents).
In my opinion, the work involved in processing 41 separate requests (27 separate requests in 2023/1321 and 14 separate requests in 2023/5026) involving two claimants, several subject areas, and overlapping claims may properly be regarded as complex. I accept Mr Fintan’s evidence that the work involves a degree of complexity above the norm.
I accept that the time estimates made by the Director and endorsed by Mr Fintan are reasonable. They do not appear to be inflated or exaggerated.
I find that the work involved is substantial and would impose a heavy burden on the respondent.
The second issue – diversion of resources
The fact that the time involved in processing the requests is substantial does not conclude the matter. As noted above, the second issue involves considering whether processing the request ‘would substantially and unreasonably divert the resources of the agency from its other operations’.[42] This involves identifying the degree of diversion (which is of course a function of the degree of work involved) and an assessment whether the diversion so identified ‘would substantially and unreasonably divert the resources of the agency from its other operations’.
[42] ‘[A]nd/or the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents)’. This element is not relevant in this case.
Mr Fintan was examined on the potential diversion of resources that might occur if the requests were processed.
MS BUTLER: …Mr Fintan, could you tell the Tribunal what would be the impact on both the office and the legal team if you had to process these requests?
WITNESS: The simple answer is that resources would be diverted away from doing other work, and on the legal team it would mean most likely, as explained in the affidavit, a single lawyer – in my estimation, reasonably senior, mostly likely EL1, possibly APS6 – and that person’s sole job for the period, which we have estimated is a little over 5 weeks, would be processing the requests, which means that they wouldn’t be available either to do work themselves, or to contribute to or supervise work of others during that period, meaning that work either would not be done in as timely a way as if that person wasn’t pulled offline to do that work, or it would need to be done by others who in turn would not be doing other work that they otherwise would be doing. And in my estimation that’s a reasonably serious or severe impact, given the size of the legal team. As things stand, I think I mentioned that the current staffing is approximately 5.2 FTE, meaning almost 20 per cent of the legal team’s resources, or almost 10 percent of the year, if you exclude four weeks’ leave, would be spent on processing a single request.
Ms BUTLER: [Y]ou mentioned that in your view a senior lawyer, maybe an EL1 or maybe an APS6 would need to process these requests. Why do you hold that view?
MR FINTAN: Mostly due to the complexity and volume of materials, and it’s one of the reasons why I have said in the affidavit – and continue to believe – that the estimate is conservative. To give one example, in [the Director’s] memo attached at DJF6 to the affidavit, where no documents exist – and I think we have identified already through the preliminary searches that have been done that there are some categories within the 40 where there are no documents – it’s still necessary for the purposes of making a decision to be satisfied that the searches done are reasonable and therefore it’s possible to be satisfied that there are no documents, and then draft that decision up. And [the Director] has estimated for, I believe most of those cases, 15 minutes. And in my experience 15 minutes is an incredibly conservative estimate, and would be applicable to more senior lawyers, because 15 minutes goes in a flash. And I think it would be difficult for a more junior, less experienced lawyer to draft something like that. And even if they did, it would need to be supervised by or cleared by a more senior lawyer again.
MS BUTLER: And how would you select the member of the legal team who would process the requests. What would you have regard to?
MR FINTAN: We would have regard to a range of factors, including: the availability of those people at the time, noting that with leave and other things people aren’t always available 100 per cent of the time; their experience in FOI; whether they have knowledge of these matters, because obviously someone with knowledge of these matters and some working knowledge of them would be able to do it more efficiently than someone with no working knowledge. And we would also have to take account of the other work involved, noting that, again, whoever is asked to do the work would have to cease for a period of five weeks or potentially longer – would not be able to process any of their other work. So we would either need to redistribute that work to other members of the team, or accept that it would not be done as quickly as otherwise we would like it to be done.
MS BUTLER: And what sort of other work does the legal team do apart from processing FOI requests? Broadly speaking, I think of the legal team’s work as falling into three categories. The first is, broadly speaking, managing the office’s responsibilities under privacy and FOI legislation, at a federal level, I should say. Secondly, giving legal advice, because the office operates under a range of different pieces of legislation. We often need to give legal advice to other parts of the office. And litigation and merits review; so running matters such as this.
MS BUTLER: And how does the work for these two requests compare to your understanding of other FOI requests that are processed by the legal team? Are they similar, are they different, are they more complex?
MR FINTAN: These ones, certainly, are up the end of – well, I will go back one step. There’s a spectrum. Up one end are very simple ones. The simplest can be dealt with as administrative access requests. Up the other end are complex, voluminous – this is, by far, one of the more complex or voluminous requests that I have seen within the office.
SENIOR MEMBER: Thank you, Ms Butler. Of those three broad categories of legal work, you mentioned litigation? I presume that aspect could not be displaced by FOI processing, because there would be pressing timelines for litigation?
MR FINTAN: I think that’s a fair assumption, and in – I mentioned that we would need to look at other work going on, and potentially reprioritise. And one of the things we would also pay attention to is work that is subject to statutory or court or tribunal deadlines. It’s more likely that we would cease doing other work associated with those other functions. So, for example, I mentioned one of the broad categories is legal advice. One of the ways we try to give legal advice, to ensure it’s efficient, and that we’re maximising use of resources, is to provide training and prepare guidance documents to staff. For example, if we can teach the rest of the office, ‘This is what an administrative access request looks like’, it means that they will be better placed to identify FOI requests that could be more readily be dealt with as admin access requests, and we would avoid the need to devote legal resources to treating them as FOI requests. And so rather than putting off – or pausing for periods – work that was subject to statutory and court/tribunal deadlines, we would most likely pause any kind of work around education, teaching, training, and so on, and the impact that potentially has that we want to avoid is, soon after, an increase in work required to deal with the fact that there were people that hadn’t been trained, for instance, in how to identify FOI versus administrative access requests, and we would be dealing with a higher volume of requests for advice, a higher volume of problems, potentially privacy breaches.
In cross-examination, Mr Singh asked Mr Fintan about the use of contractors to deal with increased workflows. He also asked questions about the budget available to the agency, and whether recent budgetary increases cast doubt on his opinion that processing the present requests would result in a substantial and unreasonable diversion of resources.
Mr Fintan addressed this issue in oral evidence, saying that the respondent had finite resources and capacity constraints. There was no capacity within the existing budget to bring on new contractors and the respondent was expected to operate within its limits.[43]
[43] Transcript, 27 June 2024, 77-78.
Mr Singh sought to tender the respondent’s Annual Reports, to demonstrate the plenitude of the respondent’s funding. The respondent contends that such documents are not admissible in these proceedings, by reason of subsection 16(3) of the Parliamentary Privileges Act 1987 (Cth). The Annual Reports are tendered in Parliament as a matter of course. In any event, at the hearing the respondent handed up a Statement of Admitted Facts, which set out the budgetary allocation to the respondent for the past three years, as well as employment figures within the office, thus obviating the need to rely on the Annual Reports.[44] As to submissions made to a Parliamentary Inquiry in an unrelated matter, I consider that it has no bearing on the facts in issue in the present review, and there is no need to explore the scope of subsection 16(3) in the abstract.
[44] See Respondent’s Submissions in Reply dated 5 June 2024 at [27].
Mr Singh put to Mr Fintan that because of the increase in funding, there was no capacity constraint in processing FOI matters.
MR SINGH: The funding has increased in all those three years. So that means the resources are there if the respondent wants to allocate it to FOI matters so that the increase in those FoI matters is adequately handled. So there should not be a constraint, or constraint on your resources?
Mr FINTAN Senior Member, I’m just pausing to think about the best way to try and keep this simple. With finite resources and a wide range of functions, and with each function, in the same way that the volume of FOI work can fluctuate, increasing and at other times decreasing, the work across other parts of the office can fluctuate. And the way we budget is to try and allocate as much as we think is required for those various functions. But when there are fluctuations, unfortunately it’s not as simple as finding more money, because that appropriated money, as well as the money received from the ACT Government under our services agreement, is allocated at the beginning of the financial year, and any changes to that would need to be made afterwards by way of internally a budget bid, and that would be when the executive and ultimately the deputy and the ombudsman would make decisions about allocation of those resources. But the effect of that is, essentially, that if you were going to allocate at some point during the financial year more resources to one function, it will be taking those resources away from another function.
SENIOR MEMBER: Otherwise known as a zero-sum game?
MR FINTAN: Correct. [45]
[45] Transcript, 27 June 2024, 79.
The respondent’s SFIC points to various factors relevant to determining whether the diversion of resources would be unreasonable.
Application to the documents – diversion of resources is unreasonable
74. The diversion of resources that would be required to process the requests would unreasonable in circumstances where:
74.1. the respondent is a relatively small agency with limited resources, and responsibility for a broad range and high volume of matters
74.2. the requests would need to be allocated to a relatively senior officer in the Legal team, who would be dedicated to processing the requests. It would take that officer, working full time (35 hours per week), approximately 5 weeks to process the requests
74.3. would significantly impact on the ability of the Office to respond to other FOI requests and privacy matters, and undertake the range of legal work performed by the Office performs,
74.4. further resources from across the Office will also be required to process, including consultation with and input from senior management and human resources
74.5. there is no general public interest in the release of the material requested by the applicants having regard to the volume and nature of the material sought
74.6. the requests are unreasonably broad and extend beyond material relating to the applicants’ concerns about the handling of their complaint or review matters including personal and other information about other complaints and legal matters
74.7. the applicants would already have access to certain material sought in the requests such as documents filed by or provided to the applicants in previous Tribunal proceedings (relevant to part 3 of 2023/5036)
74.8. there are multiple parts of the requests directed to obtaining material that is, by its nature, likely to be exempt. For example, the Office’s legally privileged communications, and details of Code of Conduct investigations containing employment information, and personal information in diary entries for the former Director of the Legal team
74.9. even where there are no documents or the documents are evidently exempt, careful and detailed work is required to make that decision and provide reasons. In 2020/5740 and 2020/7746, the Office has been required to deal twice with applications for review about searches and scope for parts of requests where no documents existed, and claims for legal professional privilege in communications with AGS about earlier litigation
74.10. the applicants’ conduct in their dealings with officers who communicate with them about their FOI requests or other applications reveals a pattern of requests for personal information about officers who deal with those requests, and the making of unsubstantiated allegations directed at the officers, and adds to the complexity of processing the requests
74.11. the applicants have not provided any meaningful revisions to the scope of the requests to address these issues.

The applicants contend that the respondent is a well-resourced agency and has the capacity to bring on board additional staff should it be necessary to undertake the work without disruption to other functions.
I note the following passages in the applicants’ joint statement.
13. On the advice of [Mr Singh], we changed various parts of the requests following the Ombudsman's letter of 25/10/23. We believe these are enough for the Ombudsman to process our requests. The reduction means that less time and resources will be needed to process our request…
14. The Ombudsman's excuse that he is a small agency having limited resources to processes the requests is not supported by the vast amounts of public monies that he has spent to fight the release of information in the previous reviews in the AAT, the Federal Court appeal process and the rehearing in AAT in February 2024. In 2023/5026 we are seeking how much the Ombudsman paid for the first AAT hearing and the Federal Court Appeal. We have not sought how much he paid for the rehearing as yet because Andrew advised us that the Ombudsman will appeal if the AAT made a decision in our favour.
15. In 2023/1321 we are seeking how much the Ombudsman paid (excluding $5,000 in compensation) to lawyers and other people regarding our privacy breach.
16. In addition, when preparing his reply to the Ombudsman's letter of 25/10/23 Andrew showed us various material which demonstrates the Ombudsman is spending vast amounts of public funds on legal fees and staff salaries.
17. All these information shows the Ombudsman has the resources to process the requests…
26. The privacy complaint material which the Ombudsman says will take 26 hours looks incorrect. It relates to our personal privacy complaint to the Commissioner. In her letter of 8/7/22 the [former] Director Legal stated that Gadens were engaged by Comcare and not the Ombudsman. If most of the information would have been given to Gadens by Comcare and not the Ombudsman then we can't understand how it will take the Ombudsman 26 hours to process this part of our request.
27. The memo of 24/4/24 prepared by the new Director Legal says she searched using "keyword SINGH sent to @comcare." This also looks incorrect. The surname SINGH is very common. Pravindra, Navindar and Andrew have such surnames. Many other Indo Fijians and people from the Indian continent have the SINGH as surname. The Ombudsman sent our personal information to the wrong email address of someone with the same surname.
28. The same problem is with class A communication with law firms. Other people who may have made contact with the Ombudsman may have similar surname.
29. Given the seriousness of the privacy breach Andrew wrote to the Governor General to suspend the Ombudsman. A copy of Andrew's letter of 18/1/21 is attached as Attachment 6.
30. The official secretary advised Andrew on 16/3/21 to refer the matter to the Federal Executive in Council. A copy of this email is attached as Attachment 7. By email dated 9/4/21 the department of the prime minister advised Andrew to refer the matter to attorney general Senator Cash. Attached as Attachment 8 is a copy of that email. Andrew advises that he found out Ombudsman resigned in April 2021. We understand Andrew was chasing this matter with the new attorney general.
31. We dispute the Ombudsman's claim that the requests are unreasonable diversion of resources because Ombudsman had to deal twice with the previous reviews. It was the Ombudsman who originally made the wrong decisions in the previous reviews. When that matter came in the AAT the Ombudsman himself asked it to be sent back to him for reconsideration. His lawyer then made revised decisions sending letters to Pravindra and Andrew in August 2021.
32. Andrew disputed the revised decisions including the legal privilege claim. Although we lost in the AAT the Full Federal Court allowed the appeal. We therefore fail to understand how the Ombudsman can now use all this situation against us. That is unfair and unjust.
I have considered the matters referred to in [26], [27] and [28] above, but I do not consider that these claims, even if accepted, change the fundamental equation. The work involved in processing the requests is substantial and would result in a substantial diversion of resources.
I turn then to the question whether such a diversion would be an unreasonable diversion, noting the statement by Jagot J (as she then was) that whether a diversion is ‘unreasonable’ is a matter for evaluation considering all the circumstances.[46]
[46] Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 at [77].
Mr Singh sent a response on 20 December 2023 to the decision made on 5 December 2023 by Mr Fintan. The letter is replete with insults and unsubstantiated claims.
·Your letter displays the hallmarks of a failed lawyer who could not earn his living by practising his profession but took sanctuary at the Australian public service by kowtowing his employers. [3]
·the full and frank disclosure of which will expose fraud, corruption and sharp practice that pervades the respondent and his agency; something which the Robodebt Royal Commission (the Commission) also found. [7]
·the respondent managed to secure a win using underhand tactics at a massive cost to the Australian taxpayers in terms of legal fees [8]
·Such claim is humbug for manifold reasons. [10]
·respondent’s past heavy handed and contumelious conduct [11]
·This demonstrates your purported claims are humbug. The evidence shows that the respondent and his officers are incompetent and cannot discharge their duties including FOI matters with existing resources. Heads would have rolled had if this happened in the private sector. Alternatively, you are actuated by malice or simply wish to stymie the requests, the disclosure of which will be further embarrassment to the respondent and his agency. [13]
·The saga simply demonstrates the filth that pervades the [respondent], raising serious questions about its independence and impartiality….[15]
·You are simply parroting from the Guidelines … you should not have waited until your lawyers hoodwinked the tribunal with… [22]
·It is inconceivable that a public servant who pontificates on his social media being an expert in public administration and administrative law [Attachment F] will be oblivious to these pronouncements [27]
·The findings of the Commission clearly shows that the respondent and his senior management failed abysmally by acting as Morrison Government’s house-trained poodle. [28]
·This claim is hogwash. [29]
·Hence, the real problem is loss of corporate memory due to large staff turnover and/or incompetence. It seems [former CO employee – Director Legal] was sacked because she committed a second privacy breach against the Applicants by sending their confidential information to another unauthorised email address. [32]
·your “substantial resources” claim is utter garbage. [33]
·That is bollocks. [35]
·That amounts to corrupt conduct under s8 of the National Anti-Corruption Act 2022) by the respondent and grounds for referral to the NACC. [37]
·you have fudged figures in your concerted attempt to stymie the requests [38]
·That is another hogwash. [39]
·IC’s integrity and credibility is already in tatters [41]
·The cross examination of Collette in 5740 and 7746 showed her temerity to misrepresent, mislead and obfuscate. [49]
·Village idiots can do far better than this.[52]
·Such investigation would have revealed Manthorpe’s corrupt conduct when he was deputy secretary of Immigration Department (the Department)… [56]
·his management rort the FOI regime [60]
·how the respondent uses the public purse as a bottomless pit to rort FOI appeals in the AAT in breach of his Model Litigant Rule obligations. [63]
·Your “legal communications” argument is again humbug. [64]
·the government cannot hide behind the cloak of privilege and that crooked lawyers and bureaucrats abound. [64]
·Your failure is a ground for your sacking.[71]
·your allegations are simply the musings of a crooked public servant downplaying the filth that pervades his employer [73]
The respondent filed a document entitled supplementary submission in reply dated 5 June 2024, in response to the applicants’ SFIC. The respondent complained about the inappropriate and unsubstantiated allegations made by Mr Singh against the respondent and its officers. The respondent requested that the Tribunal instruct Mr Singh to withdraw the document, a request modified at the hearing to a submission that the Tribunal should give it no weight.
The Tribunal (as presently constituted) cautioned Mr Singh during an in-person directions hearing about his use of insulting and inflammatory language. He is unrepentant and in later submissions indicated that the Tribunal has no authority to counsel or direct him.[47] I note simply that the Tribunal has power under section 42B to dismiss proceedings at any stage if satisfied that the proceedings are vexatious.[48] No doubt a litigant who persistently engages in hostile and abusive language despite entreaties from the Tribunal may at some point transgress into this area.
[47] Applicant’s Submissions in Reply dated 19 June 2024, member’s file, item 4a, [3]; [45].
[48]Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(a).
It is hard to see any public interest in the release of the information sought. Public interest is not established simply by referring to other reports or claims about shortcomings in various government departments, such as the income averaging mechanism adopted by the Department of Social Services colloquially known as Robodebt.
CONCLUSION
I have reviewed the materials and the estimates of work made by the respondent. I am satisfied that the respondent has discharged the onus of establishing that the amount of work involved in processing the requests would substantially and unreasonably divert the respondent agency from its other operations.
FOI has been described as a ‘structural necessity in a real democracy’.[49] But as in most walks of life, this ‘necessity’ is tempered by practical considerations, in the present case to ensure the smooth operation of the various elements that make up that real democracy, of which an efficient and effective bureaucracy is a key component. The practical insight of the Senate Committee that anticipated the need for a practical refusal ground is well borne out by the circumstances of this case.
[49] See VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619, per SM Puplick AM, at [11] referring to National Archives and Records Administration v Favish [2004] USSC 699; 541 U.S. 157 at [171]- [172].
DECISION
The decision by the respondent made on 5 December 2023, as amended on 9 April 2024, is affirmed.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...................................[sgd].....................................
Associate
Dated: 27 September 2024

Date(s) of hearing: 27 June 2024

Date final submissions received: 25 July 2024

Representative for the Applicant: Mr A Singh

Counsel for the Respondent: Ms L Butler, Australian Government Solicitor

Solicitors for the Respondent: Ms C Bennett, Australian Government Solicitor
APPENDIX A
AAT2023/1321 – Modified scope of 31 May 2022 request

Part

Documents requested – 2023/1321

1

89.     WITHDRAWN ~~Copies of all information internally generated by the Commonwealth Ombudsman (CO) in this matter from 31/1/20 to 31/5/22~~

2

PREVIOUSLY WITHDRAWN (prior to review application)

3

90.     WITHDRAWN ~~Copies of all information received by the CO from Cate Cloudsdale of OAIC regarding this matter from 31/1/20 to 31/5/22~~

4

91.     Copies of information showing full names, job title and APS classification (APS3 to EL2 and SES if any) of all employees who were/have been involved with dealing with this matter from 31/2/20 to 31/5/22

5

92.     Of the employees mentioned in 4 above, the total number of hours they have worked in the handling of this matter and the cost involved from 31/1/20 to 31/5/22

6

93.     Of the employees referred to in 4 above, information regarding those who have left the CO’s employ, the dates of their departure and copies of their [exit] interview records

7

94.     Copy of the document created by ombudsman Michael Manthorpe (Manthorpe) as agency head that deals with procedures for determining breaches of the APS code of conduct under s 15(3) of the PSA 1999

8

95.     Copy of any subsequent document created by a/ombudsman Penny McKay (McKay) following departure of Manthorpe

9

96.     Copies of information regarding any disciplinary action taken against CO employees for releasing the couple’s information to unauthorised third party in August 2019

10

97.     Copies of diary entries (both manual and electronic) of CO employee from 28/5/21 and 31/5/22

11

98.     MODIFIED as follows ‘copy of Penny McKay’s diary from 28/5/21 to 31/5/22 to the extent they relate to the couple’s privacy breach complaint’

12

99.     WITHDRAWN Copies of all information including but not limited to letters, emails, notes of meetings, advice, file notes, text messages from CO to the attorney general and/or his/her department (AGD) regarding this matter from 1/2/20 to 31/5/22

13

100.    WITHDRAWN Copies of all information including but not limited to letters, emails, notes of meetings, advice, file notes, text messages from attorney general and/or his/her department (AGD) regarding this matter to CO from 1/2/20 to 31/5/22

14

Copies of all the information CO provided to Gadens regarding this matter from the date of engagement till 31/5/22 inclusive

15

Copies of all information received by CO from Gadens including advice, opinion and bill of costs regarding this matter from the date of engagement till 31/5/22 inclusive

16

To the extent not covered in 14 above, copies of Gadens tax invoice(s) for the legal services it rendered to CO regarding this matter from date of engagement until the date of completion

17

Copies of quotations CO received from law firms (including Gadens) for providing legal services in this matter

18

WITHDRAWN ~~Copy of the payment voucher or EFT transfer for the compensation paid to the couple by CO on or about 16/3/22~~

19

To the extent not covered in 1 above, copies of any information including meeting the CO and/or the acting CO had with CO’s executive management team wherein formal decision (in the form of written resolution or otherwise) was taken to offer the couple apology and the compensation.

20

WITHDRAWN ~~Copies of any information including policies, guidelines, directions and/or authorisation from the attorney general or her department regarding the $5,000 compensation payment~~

21

Copies of job description of [CO employee – Director Legal] and her employment contract indicating [CO employee – Director Legal]’s acceptance of the job offer of director legal

22

Copies of Section 23 of the Public Governance, Performance and Act (Rule 18) approvals sought by Manthorpe or his delegates to spend on amounts for all legal services from 1 May 2017 to 31 May 2022 inclusive, including the services of Gadens regarding the privacy breach matter of the couple

23

Copy of job description and employment contract of [CO employee]

24

Copy of current practising certificate of [CO employee]

25

Copy of current practising certificate of [CO employee – Director Legal]

26

MODIFIED as follows ‘copy of Lisa Collette’s diary from 31/2/20 to 31/5/22 to the extent they relate to AAT proceedings 2020/5740 and 2020/7746’

27

Copy of Manthorpe’s resignation letter to AG Cash

28

Copy of organisational chart of the legal section from 31/5/22 to 31/5/22 (previously modified on 30 June 2022)

29

Full names, their APS designations (APS 5 upwards) and work titles of each employee in the legal section up to 31/5/2022 inclusive

30

Copies of current practising certificates of employees in 29 above who are lawyers and hold such certificates

31

Copies of information including tax invoices for payment of goods/services provided regarding Manthorpe’s farewell

32

Copy of presentation (in transcript form or otherwise) of the paper presented/delivered by McKay on the topic “commonwealth ombudsman” 22/10/21 at the Gilbert + Tobin Centre of Public Law, UNSW Law & Justice NSW Chapter, Australian Institute of Administrative Law “Kerr’s Vision Splendid for Administrative Law: Still Fit for Purpose?”

33

Copies of information showing evidence of the three steps mentioned in McKay’s apology letter dated 7/12/21 to Pravindra Singh

FOI 2023/5026 – Modified scope of 1 February 2023 request

Part

Documents requested – 2023/5026

1

Copies of s23 of the PGPA Act 2013 (Rule 18) approvals sought by CO/delegate to spend on the amount for legal services to defend the decisions in the AAT

2

Copies of quotations CO sought and received from all law firms (including AGS) for providing legal services including representation and defending the decisions in the AAT

3

Copies of all information received by CO from AGS (excluding the T Documents) regarding the proceedings from the date of engagement to 12/9/22 inclusive

4

Copies of AGS tax invoices for the provision of all legal services regarding the proceedings from the date of engagement to 30/11/22 inclusive

5

Copy of the instrument of delegation by CO authorising Collette to give evidence in the AAT proceedings

6

Copy of job description of Collette as at 16/6/19 and/or its current form

7

Copy of employment contract of Collette relating to her position of chief operating officer

8

Copies of work diaries (both manual and electronic) of Collette from 17/5/21 to 15/8/22 inclusive regarding the entries relating to the AAT proceedings

9

Copy of the organisational chart of the legal services section of CO office from 17/5/21 to 15/8/22 inclusive

10

WITHDRAWN ~~Copies of all information sent by CO to AGS in relation to the AAT proceedings (excluding the T Documents) from the date of engagement of AGS to 12/9/22 inclusive~~

11

Copies of all documents created by ombudsman Michael Manthorpe or acting ombudsman Penny McKay that deals with procedures for determining breaches of APS Code of Conduct and for determining sanctions under s15(3) of the Public Service Act 1999 and the Public Service Amendment Act 2013

12

Copies of information showing how many APS breach determinations were made by CO/delegate from 17/5/21 to 31/12/22 inclusive

13

Copies of information showing sanctions imposed by CO/delegate in relation to matters in (12) above

14

Copies of information showing names of all CO employees who resigned and/or moved (either voluntarily or through secondment) to other federal agencies from 17/5/21 to 31/12/22 inclusive

15

Copies of all information that CO sent to Comcover in relation to the breach of the couple’s privacy in 2020 (CO reference Za40634; privacy commissioner references CP20/00349 & CP21/01644) for which it paid $5,000 compensation to the couple

Date(s) of hearing:	27 June 2024
Date final submissions received:	25 July 2024
Representative for the Applicant:	Mr A Singh
Counsel for the Respondent:	Ms L Butler, Australian Government Solicitor
Solicitors for the Respondent:	Ms C Bennett, Australian Government Solicitor

Part	Documents requested – 2023/1321
1	89. WITHDRAWN ~~Copies of all information internally generated by the Commonwealth Ombudsman (CO) in this matter from 31/1/20 to 31/5/22~~
2	PREVIOUSLY WITHDRAWN (prior to review application)
3	90. WITHDRAWN ~~Copies of all information received by the CO from Cate Cloudsdale of OAIC regarding this matter from 31/1/20 to 31/5/22~~
4	91. Copies of information showing full names, job title and APS classification (APS3 to EL2 and SES if any) of all employees who were/have been involved with dealing with this matter from 31/2/20 to 31/5/22
5	92. Of the employees mentioned in 4 above, the total number of hours they have worked in the handling of this matter and the cost involved from 31/1/20 to 31/5/22
6	93. Of the employees referred to in 4 above, information regarding those who have left the CO’s employ, the dates of their departure and copies of their [exit] interview records
7	94. Copy of the document created by ombudsman Michael Manthorpe (Manthorpe) as agency head that deals with procedures for determining breaches of the APS code of conduct under s 15(3) of the PSA 1999
8	95. Copy of any subsequent document created by a/ombudsman Penny McKay (McKay) following departure of Manthorpe
9	96. Copies of information regarding any disciplinary action taken against CO employees for releasing the couple’s information to unauthorised third party in August 2019
10	97. Copies of diary entries (both manual and electronic) of CO employee from 28/5/21 and 31/5/22
11	98. MODIFIED as follows ‘copy of Penny McKay’s diary from 28/5/21 to 31/5/22 to the extent they relate to the couple’s privacy breach complaint’
12	99. WITHDRAWN Copies of all information including but not limited to letters, emails, notes of meetings, advice, file notes, text messages from CO to the attorney general and/or his/her department (AGD) regarding this matter from 1/2/20 to 31/5/22
13	100. WITHDRAWN Copies of all information including but not limited to letters, emails, notes of meetings, advice, file notes, text messages from attorney general and/or his/her department (AGD) regarding this matter to CO from 1/2/20 to 31/5/22
14	Copies of all the information CO provided to Gadens regarding this matter from the date of engagement till 31/5/22 inclusive
15	Copies of all information received by CO from Gadens including advice, opinion and bill of costs regarding this matter from the date of engagement till 31/5/22 inclusive
16	To the extent not covered in 14 above, copies of Gadens tax invoice(s) for the legal services it rendered to CO regarding this matter from date of engagement until the date of completion
17	Copies of quotations CO received from law firms (including Gadens) for providing legal services in this matter
18	WITHDRAWN ~~Copy of the payment voucher or EFT transfer for the compensation paid to the couple by CO on or about 16/3/22~~
19	To the extent not covered in 1 above, copies of any information including meeting the CO and/or the acting CO had with CO’s executive management team wherein formal decision (in the form of written resolution or otherwise) was taken to offer the couple apology and the compensation.
20	WITHDRAWN ~~Copies of any information including policies, guidelines, directions and/or authorisation from the attorney general or her department regarding the $5,000 compensation payment~~
21	Copies of job description of [CO employee – Director Legal] and her employment contract indicating [CO employee – Director Legal]’s acceptance of the job offer of director legal
22	Copies of Section 23 of the Public Governance, Performance and Act (Rule 18) approvals sought by Manthorpe or his delegates to spend on amounts for all legal services from 1 May 2017 to 31 May 2022 inclusive, including the services of Gadens regarding the privacy breach matter of the couple
23	Copy of job description and employment contract of [CO employee]
24	Copy of current practising certificate of [CO employee]
25	Copy of current practising certificate of [CO employee – Director Legal]
26	MODIFIED as follows ‘copy of Lisa Collette’s diary from 31/2/20 to 31/5/22 to the extent they relate to AAT proceedings 2020/5740 and 2020/7746’
27	Copy of Manthorpe’s resignation letter to AG Cash
28	Copy of organisational chart of the legal section from 31/5/22 to 31/5/22 (previously modified on 30 June 2022)
29	Full names, their APS designations (APS 5 upwards) and work titles of each employee in the legal section up to 31/5/2022 inclusive
30	Copies of current practising certificates of employees in 29 above who are lawyers and hold such certificates
31	Copies of information including tax invoices for payment of goods/services provided regarding Manthorpe’s farewell
32	Copy of presentation (in transcript form or otherwise) of the paper presented/delivered by McKay on the topic “commonwealth ombudsman” 22/10/21 at the Gilbert + Tobin Centre of Public Law, UNSW Law & Justice NSW Chapter, Australian Institute of Administrative Law “Kerr’s Vision Splendid for Administrative Law: Still Fit for Purpose?”
33	Copies of information showing evidence of the three steps mentioned in McKay’s apology letter dated 7/12/21 to Pravindra Singh

Part	Documents requested – 2023/5026
1	Copies of s23 of the PGPA Act 2013 (Rule 18) approvals sought by CO/delegate to spend on the amount for legal services to defend the decisions in the AAT
2	Copies of quotations CO sought and received from all law firms (including AGS) for providing legal services including representation and defending the decisions in the AAT
3	Copies of all information received by CO from AGS (excluding the T Documents) regarding the proceedings from the date of engagement to 12/9/22 inclusive
4	Copies of AGS tax invoices for the provision of all legal services regarding the proceedings from the date of engagement to 30/11/22 inclusive
5	Copy of the instrument of delegation by CO authorising Collette to give evidence in the AAT proceedings
6	Copy of job description of Collette as at 16/6/19 and/or its current form
7	Copy of employment contract of Collette relating to her position of chief operating officer
8	Copies of work diaries (both manual and electronic) of Collette from 17/5/21 to 15/8/22 inclusive regarding the entries relating to the AAT proceedings
9	Copy of the organisational chart of the legal services section of CO office from 17/5/21 to 15/8/22 inclusive
10	WITHDRAWN ~~Copies of all information sent by CO to AGS in relation to the AAT proceedings (excluding the T Documents) from the date of engagement of AGS to 12/9/22 inclusive~~
11	Copies of all documents created by ombudsman Michael Manthorpe or acting ombudsman Penny McKay that deals with procedures for determining breaches of APS Code of Conduct and for determining sanctions under s15(3) of the Public Service Act 1999 and the Public Service Amendment Act 2013
12	Copies of information showing how many APS breach determinations were made by CO/delegate from 17/5/21 to 31/12/22 inclusive
13	Copies of information showing sanctions imposed by CO/delegate in relation to matters in (12) above
14	Copies of information showing names of all CO employees who resigned and/or moved (either voluntarily or through secondment) to other federal agencies from 17/5/21 to 31/12/22 inclusive
15	Copies of all information that CO sent to Comcover in relation to the breach of the couple’s privacy in 2020 (CO reference Za40634; privacy commissioner references CP20/00349 & CP21/01644) for which it paid $5,000 compensation to the couple