Boto and Commonwealth Ombudsman (Freedom of information)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding a decision by the Commonwealth Ombudsman (the respondent) to refuse access to documents requested under freedom of information (FOI) legislation. The applicants, Ms Boto and Mr Singh, sought access to documents related to their dealings with the Ombudsman, which they alleged had a tortuous and acrimonious history stemming from immigration matters concerning Mr Singh. The Ombudsman had refused the request on the grounds that a "practical refusal reason" existed, meaning the work involved in processing the request would substantially and unreasonably divert the agency's resources from its other operations.

The primary legal issues before the Tribunal were whether the Ombudsman was correct in treating two separate FOI requests as a single request, and whether a practical refusal reason, as defined by section 24AA of the FOI Act, genuinely existed. The applicants contended that the Ombudsman had acted in bad faith and had previously failed to comply with statutory duties, arguing that the practical refusal claim was unfounded. The Ombudsman bore the onus of demonstrating that the work involved in processing the requests would substantially and unreasonably divert its resources.

The Tribunal affirmed the Ombudsman's decision. It found that the two requests related to documents with substantially the same subject matter, thus entitling the Ombudsman to treat them as a single request under subsection 24(2)(b) of the FOI Act. Furthermore, the Tribunal was satisfied that a practical refusal reason existed. This conclusion was based on evidence presented by the Ombudsman, including an affidavit detailing the estimated time and complexity involved in processing the requests. The Director of the Ombudsman's office estimated that approximately 172.5 hours of processing time would be required, involving document retrieval, assessment, potential consultation, and preparation of a decision. The Tribunal considered this estimate credible and conservative, noting that it did not include time for other agency personnel or account for the interconnected nature of the requests and related proceedings.

Consequently, the Tribunal affirmed the reviewable decision of the Commonwealth Ombudsman. The applicants' FOI requests were refused on the basis that a practical refusal reason existed, as the work involved in processing them would substantially and unreasonably divert the agency's resources from its other operations.