Cambridge; Chief Executive Officer, Services Australia and (Freedom of information) - [2021] AATA 1142

Cambridge; Chief Executive Officer, Services Australia and (Freedom of information) [2021] AATA 1142 (5 May 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2020/3898
Re:Chief Executive Officer, Services Australia
APPLICANT

AndNicholas Cambridge
RESPONDENT

Appeal from: [2020] AICmr 18

DECISION
Tribunal:Deputy President Boyle
Date:5 May 2021
Place:Perth

The Tribunal sets aside the decision of the Australian Information Commissioner in SB and Services Australia (Freedom of Information) [2020] AICmr 18 (1 June 2020) that a practical refusal reason does not exist in relation to a request by the Respondent under the Freedom of Information Act 1982 (Cth) (FOI Act) and substitutes a decision that a practical refusal reason under s 24AA(1)(a)(i) of the FOI Act does exist.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
FREEDOM OF INFORMATION – whether practical refusal reason exists – majority of documents that are the subject of the request already provided under administrative access arrangements – processing the FOI request would substantially divert resources of Services Australia from its other operations – diversion of resources for 88.5 hours to provide documents that have already been provided is unreasonable – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth) – s 150(2)(b)
Child Support (Registration and Collection) Act 1988 (Cth) – s 16(2)(b)
Freedom of Information Act 1982 (Cth) – ss 11, 15, 15(2)(b), 24, 24AA, 24AA(1)(a)(i), 24AA(1)(b), 24AB, 24AB(2), 38, 53A, 54L, 55K, 57A, 57A(1), 93A, sch 3
CASES
Adrian Wright and Department of Human Services [2017] AICmr 127
Chief Executive Officer, Services Australia and Paul Farrell [2020] AATA 2390
Dreyfus and Attorney-General (Commonwealth of Australia) (2015) 68 AAR 207
‘FX’ and Department of Prime Minister and Cabinet [2015] AICmr 39
Gurjit Singh and Attorney-General’s Department [2015] AICmr 20
‘JC’ and Department of Health [2016] AICmr 47
‘JH’ and Australian Securities and Investments Commission [2016] AICmr 55
Langer and Telstra Corporation Ltd (2002) 68 ALD 762
‘OM’ and Australian Taxation Office [2018] AICmr 41
SB and Services Australia (Freedom of information) [2020] AICmr18
VMQD and Commissioner of Taxation [2018] AATA 4619
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines (December 2016) – paras 3.117, 3.119, 3.121
REASONS FOR DECISION
Deputy President Boyle
5 May 2021
THE APPLICATION

The Applicant seeks review of the decision of the Australian Information Commissioner (IC) in SB and Services Australia (Freedom of Information)[1] dated 1 June 2020 that a practical refusal reason does not exist in relation to a request by the Respondent under the Freedom of Information Act 1982 (Cth) (the FOI Act).
[1] [2020] AICmr 18 (1 June 2020).
BACKGROUND
The facts set out under this heading are taken from the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC)[2] and are not contentious.
[2] A1.
On 16 August 2018 the Respondent made a request to the Department of Human Services (now named Services Australia) (SA) for access to a number of documents under the FOI Act.[3]
[3] A6, T3.
On 10 September 2018 SA wrote to the Respondent providing notice under s 24AB(2) of the FOI Act that the Applicant intended to refuse the request and requested that the Respondent provide specific information about the requested documents.[4]
[4] A6, T5.
On 19 September 2018 the Respondent wrote to SA providing a revised request as follows:
Please not the information being requested relates only to the child support agency and no other government department.
I can advise you that I have detected a breach of the 1982 Freedom Of Information Act and this matter has been forwarded to the ombudsman for them to investigate.[5]
[5] A6, T6.
Given that I quoted my child support reference number it would be logical to assume that I was only requesting information that related to child support matters, if I required information regarding other agencies I would have given reference numbers for them.
[Part 1] All written communication to the Australian Child Support Agency from my self WRITTEN COMUNICATION IS DEFINED AS ANY TYPE OF MESSAGE THAT USES THE WRITTEN WORD.
[Part 2] All responses to me from the written communication from the Australian Child Support Agency in the requested timeframe RESPONSE IS DEFINED AS A VERBAL OR WRITTEN ANSWER
[Part 3] A list of all phone calls that include the time date and duration of the call and the subject discussed and the name of the person I spoke to THIS INFORMATION IS HELD ON THERE SYSTEM AND THIS INFOORMATION NEEDS TO IMPORTED INTO A DOCUMENT AND FORWARDED TO ME
[Part 4] An unedited copy of all phone calls ALL CALLS BETWEEN MYSELF AND THE AUSTRALIAN CHILD SUPPORT AGENCY EITHER AS A VOICE RECORDING OR A TRANSCRIPT
[Part 5] A list of the times and dates I attended the Australian Child Support Agency the name of the person I spoke to the time and duration of the meeting and the topics discussed THIS INFORMATION IS HELD ON THERE SYSTEM AND NEED TO BE IMPORTED INTO A DOCUMENT AND FORWARDED TO ME
[Part 6] A copy of all compensation claims made to the Australian Child Support Agency and there response to the claims RESPONSE IS DEFINED AS A VERBAL OR WRITTEN ANSWER
[Part 7] All written communication between myself and Katrina Pratt WRITTEN COMMUNICATION IS DEFINED AS ANY MESSAGE THAT USES THE WRITTEN WORD RESPONSE IS DEFINED AS A VERBAL OR WRITTEN ANSWER
[Part 8] A list of all change of assessments EVERY TIME MY ASSESSMENT WAS CHANGED IN THE REQUESTED PERIOD IS TO BE PROVIDED TO ME
[Part 9] A list of all fines and penalties imposed on me WHEN A FINE OR PENALTY IS IMPOSED IN ME THEY WHITE TO ME TO INFORM ME IN A DOCUMENT WHICH MY BE A LETTER BILL OR INVOICE
THE INFORMATION IS REQUESTED FOR THE PERIOD1/1/2014-30/06/2018.
(Without alteration.)
On 24 September 2018 the Applicant refused the request (original decision),[6] finding that a practical refusal reason existed under section 24AA(1)(b) of the FOI Act on the basis that the Respondent did not provide sufficient information to identify the documents requested, as required by s 15(2)(b) of the FOI Act.
[6] A6, T7.
On 4 October 2018 the Respondent lodged an application for review of the original decision with the Office of the Australian Information Commissioner (OAIC).[7]
[7] A6, T8.
On 13 December 2018 SA provided written submissions to the OAIC in support of the original decision. Those submissions:
(a)advised that some parts of the request would require the creation of new documents;
(b)maintained that a practical refusal reason exists under section 24AA(1)(b) of the FOI Act in respect of other parts of the request, on the basis that the request does not provide sufficient information to identify the documents falling within the scope of those parts of the request as required by section 15(2)(b) of the FOI Act; and
(c)submitted that while certain parts of the request may be clear enough to process, SA would be unable to part process the request.[8]
[8] A6, T10.
On 6 December 2019 SA provided further written submissions to the OAIC in support of the original decision in which SA:
(a)advised that further consultations with relevant line areas had been undertaken, which had resulted in documents falling within the scope of parts 1, 2, 4, 6 and 7 of the request being identified; and
(b)contended that a practical refusal reason exists under section 24AA(1)(a)(i) of the FOI Act in respect of parts 1, 2, 4, 6 and 7 of the request, on the basis that processing those parts of the request would constitute a substantial and unreasonable diversion of SA’s resources from its other operations.[9]
[9] A6, T13.
On 1 June 2020 the Australian Information Commissioner (IC) set aside the original decision and made a substituted decision that a practical refusal reason does not exist (IC decision).[10]
[10] A6, T14.
On 29 June 2020 the Applicant applied to the Tribunal for review of the IC decision.[11]
[11] A6, T1.
On 14 October 2020 the Tribunal ordered that the implementation of the decision of 1 June 2020 be stayed until further order of the Tribunal.
LEGISLATIVE FRAMEWORK
Section 11 of the FOI Act provides:
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person's right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.
Section 15 of the FOI Act relevantly provides:
(1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
Requirements for request
(2)The request must:
(a)be in writing; and
(aa)state that the request is an application for the purposes of this Act; and
(b)provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
…
Section 24 of the FOI Act relevantly provides:
(1)If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a)must undertake a request consultation process (see section 24AB); and
(b)if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists–the agency or Minister may refuse to give access to the document in accordance with the request.
Section 24AA of the FOI Act provides:
(1)For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a)   the work involved in processing the request:
(i)in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii)in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister's functions;
(b)   the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2)Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a)    identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b)    deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i)examining the document; or
(ii)consulting with any person or body in relation to the request;
(c)   making a copy, or an edited copy, of the document;
(d)   notifying any interim or final decision on the request.
(3)In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
(a)   any reasons that the applicant gives for requesting access; or
(b)   the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or
(c)   any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
Section 24AB of the FOI Act relevantly provides:
…
Requirement to notify
(2)The agency or Minister must give the applicant a written notice stating the following:
(a)an intention to refuse access to a document in accordance with a request;
(b)the practical refusal reason;
…
Assistance to revise request
(3)If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
Section 54L of the FOI Act relevantly provides:
(1)An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2)This subsection covers the following decisions:
(a) an access refusal decision;
…
Section 53A of the FOI Act relevantly defines “access refusal decision” as follows:
An access refusal decision is any of the following decisions:
(a) a decision refusing to give access to a document in accordance with a request;
(b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates;
…
Section 55K of the FOI Act relevantly provides that:
(1)After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a)affirming the IC reviewable decision; or
(b)varying the IC reviewable decision; or
(c)setting aside the IC reviewable decision and making a decision in substitution for that decision.
Section 57A(1) of the FOI Act relevantly provides that:
(1)An application may be made to the Tribunal for review of the following decisions:
(a)a decision of the Information Commissioner under section 55K on an IC review;
…
The IC decision was made under s 55K of the FOI Act. The Tribunal is satisfied that it has jurisdiction to review the IC decision under s 57A of the FOI Act and that the application for review has been made in accordance with the FOI Act and the Administrative Appeals Tribunal Act 1975 (Cth).
Section 93A of the FOI Act relevantly provides:
(1)The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
…
(2)For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section…
Guidelines were issued by the IC under s 93A of the FOI Act in December 2016 (the FOI Guidelines).
THE ISSUES
Although the notice of intention to refuse access to documents issued by the Applicant under s 24AB(2) of the FOI Act (see [4] above) and the original decision refusing the request (see [6] above) identified the practical refusal reason as being a failure of the request to comply with s 15(2)(b) of the FOI Act,[12] through the IC review process it was identified that the practical refusal reason was actually that the processing of the request, specifically parts 1, 2, 4, 6 and 7, would constitute a substantial and unreasonable diversion of the department’s resources, which is a practical refusal reason under s 24AA(1)(a)(i) of the FOI Act. The Applicant made submissions to the IC to that effect[13] and sought a decision by the IC that the original decision be varied to refuse the Respondent’s request (being the applicant to those proceedings) under s 24(1), on the basis of there being a practical refusal reason under s 24AA(1)(a)(i) of the FOI Act.[14]
[12] Freedom of Information Act 1982 (Cth) (FOI Act) s 24AA(1)(b).
[13] A6, T13/63.
[14] A6, T13/68.
Notwithstanding the Applicant’s apparent abandonment of there being a practical refusal reason under s 24AA(1)(b) (see [9] above), the IC decision[15] examined whether there was in fact a practical refusal reason under either s 24AA(1)(b) or s 24AA(1)(a)(i) and found that there was not.
[15] A6, T14.
In the proceedings before the Tribunal the Applicant has only argued that a practical refusal reason exists under s 24AA(1)(a)(i) of the FOI Act. The matter proceeded on that basis. Insofar as it is necessary to do so given that the IC decision found there to be no practical refusal reason under s 24AA(1)(b) of the FOI Act, the Tribunal finds that the Applicant has not established the existence of a practical refusal reason under s 24AA(1)(b) of the FOI Act.
The live issue for determination, and the one addressed by the parties in these proceedings, is whether a practical refusal reason under s 24AA(1)(a)(i) has been established. The Applicant’s SFIC identified the sole issue for determination as being:
… whether the work involved in processing the relevant parts of the Respondent’s request would substantially and unreasonably divert the resources of Services Australia from its other operations (section 24AA(1)(a)(i) of the FOI Act).[16]
[16] A1, para [11].
The Tribunal agrees that the issue for determination is that identified by the Applicant.
THE HEARING AND THE EVIDENCE
The application was heard on 16 February 2021. Mr T Galvin of MinterEllison appeared for the Applicant. There was no appearance by the Respondent. The following documents were admitted into evidence:
(a)Applicant’s SFIC received by the Tribunal 9 October 2020 (Exhibit A1);
(b)Statement of Issues dated 21 August 2020 (Exhibit A2);
(c)Affidavit of James Pratt affirmed 9 October 2020 (Exhibit A3);
(d)Affidavit of Bronwyn Scott affirmed 9 October 2020 (Exhibit A4);
(e)Letter from MinterEllison to the Respondent dated 7 December 2020 (Exhibit A5); and
(f)Section 37 T Documents received by Tribunal 3 August 2020 (Exhibit A6).
On 24 August 2020 the Tribunal made directions for the Applicant, by 9 October 2020, to file the Applicant’s SFIC and any further evidence on which she sought to rely at the hearing and for the Respondent to file and serve submissions in reply on or before 6 November 2020. The Applicant duly filed and served the relevant documents. No submissions in reply were provided by the Respondent.
The Tribunal received the following relevant communications from the Respondent:
(a)An email dated 27 July 2020 which was (verbatim) as follows:
will my response to this made be made available to crime syndicate australia?
I think the question is why are they preventing me from accessing my information i have already found evidence of criminal activity privacy breaches official misconduct and failing to comply with the aps code of conduct.
you will have my formal response within a few days.
(b)An email dated 2 August 2020 which:
(i)stated that the question that needed to be asked was why the child support agency was spending taxpayer money on expensive lawyers to prevent him accessing his personal information;
(ii)said that he had a civil litigation case against the Child Support Agency and needed the information sought to “push that forward”;
(iii)asserted that it was in his and the public interest to allow him access to the documents because he has evidence of criminal activity, official misconduct and privacy breaches;
(iv)claimed that his right of judicial review has always been a fundamental right; and
(v)said that he is part of a group looking at taking class action against the Child Support Agency.
(c)An email dated 19 August 2020 stating that the Respondent opposed the application for a stay.
(d)An email dated 14 February 2021 in response to an email dated 12 February 2021 from the Tribunal reminding the Respondent that the hearing of the application was listed for hearing on 16 February 2021. The Respondent’s email of 14 February 2021 was (verbatim) as follows:
I will not be available for this matter until Services Australia have repaid me all the lost time that i have incurred dealing with this matter. I have to take time away from paid employment to deal with there issues and am no longer willing to tolerate the out of pocket expense that i have incurred. I have contacted Rebecca Skinner the ceo of Services Australia Stuart Robert the minister responsible for this department and Tom Galvin there layer acting in this matter and all have failed to respond to me . I will take this matter to a court of law and will be contacting the media which no doubt will be of great embarrassment to the minister the department and the government in the run up to the next election. Should there ever be a situation where repayment of out of pocket expenses will occur i will contact you so this matter can proceed

Notwithstanding the advice contained in the Respondent’s email of 14 February 2021 to the effect that he would not be attending the hearing on 16 February 2021, at the commencement of the hearing on 16 February 2021 the Tribunal called the Respondent’s telephone number. There was no answer. Accordingly, the hearing of the application proceeded without the Respondent.
At the hearing on 16 February 2021 the Tribunal asked the Applicant’s counsel for an update on possible settlement of the proceedings. This update was sought because it had emerged at the hearing of the stay application in October 2020 that recordings of the 76 telephone conversations that the Respondent had with SA and all but 38 of the 572 pages of documents requested by the Respondent under the FOI Act had already been provided to the Respondent through administrative access arrangements.[17] In some cases, these documents had been provided twice.
[17] transcript of stay hearing at 10; A3, para [39].
At the hearing of the stay application in October 2020, which was conducted by telephone, the Tribunal asked the Respondent whether he had, through administrative access arrangements, already received the documents and recordings requested under the FOI Act. The Respondent’s response was that he had “no idea” because he had not recently looked at the documents that had been provided. The Tribunal tried a number of times to have the Respondent advise what documents he had received administratively and whether they were the same documents that he requested under the FOI Act. The Respondent became abusive and hung up. The Tribunal tried to re-establish contact with the Respondent but there was no answer. The balance of the proceedings on that day continued without the Respondent.
At that same hearing, after the Respondent had hung up, the Tribunal suggested that, given the documents and recordings requested had (but for 38 pages) already been provided to the Respondent, further efforts should be made to see if the proceedings could be resolved without the need for a hearing. As part of those efforts to settle the proceedings, the Applicant’s lawyers wrote to the Respondent on 7 December 2020.[18] This letter, in effect, repeated an offer made by the Applicant on 17 September 2020.[19] The letter of 7 December 2020 again offered, through administrative access arrangements, to release the requested documents to the Respondent. The Respondent did not accept that offer.
The evidence
[18] A5.
[19] A3, annexure JP-3.
Affidavit of James Pratt affirmed 9 October 2020 (A3)
Mr Pratt’s affidavit was to the following effect:
(a)He is presently engaged as a seconded Principal Government Lawyer in the Freedom of Information Legal Team in the Employment Law and Freedom of Information Branch of the Legal Services Division of SA.
(b)He has previously processed 95 FOI requests relating to the Child Support programme.
(c)He is aware that s 38(1)(b)(i) of the FOI Act provides exemption to the production of documents which contain information the disclosure of which is prohibited by the provisions of legislation.
(d)His review of the documents requested by the Respondent and a sample of the recordings of the telephone conversations indicate that a significant portion of the documents and recordings contain protected information which could not be released to the Respondent under the FOI Act.
(e)He estimates that it will take 88.5 hours to process the Respondent’s request. He has based that assessment on:
(i)The time that has already been spent by Centrelink and Child Support Personalised Services Team personnel in searching for and retrieving documents and the time spent by lawyers in his team reviewing documents and making redactions.
(ii)The time spent by relevant personnel retrieving call recordings and the time spent by relevant legal personnel redacting the recordings to delete protected information.
In forming his opinion, Mr Pratt has relied on the affidavit of Bronwyn Scott affirmed on 9 October 2020.[20]
[20] A4.
(f)Based on the above sources, he estimates the time that it will take to process the Respondent’s request at 88.5 hours made up as follows:
(i)7.7 hours of search and retrieval time;
(ii)11.8 hours actual document processing time;
(iii)two hours actual search and retrieval time for telephone calls;
(iv)an estimated 60.5 hours for processing telephone call recordings; and
(v)an estimated 6.5 hours to undertake quality assurance and draft a statement of reasons.
(g)Each of the times and estimates and the work involved in each of the steps set out in above in [37](f) above is explained in more detail by Mr Pratt at paras [17]–[33] of A3. Mr Pratt further:
(i)said that documents and recordings of the conversations which the Respondent has requested through the FOI Act process have, with the exception of 38 pages, been provided to the Respondent through administrative access arrangements; and
(ii)identified when and pursuant to what administrative access arrangement (by reference to a LEX number) the documents were provided to the Respondent. He exhibits to his affidavit the letters sent to the Respondent by which the department made the decision to release the documents and advised that the documents were released under administrative access arrangements.
Affidavit of Bronwyn Scott affirmed 9 October 2020 (A4)
Ms Scott’s affidavit advised:
(a)That she is employed by SA.
(b)That her current role is a Program Manager (Services Delivery Operations) in the Centrelink and Child Support Personalised Team in the Multicultural and Tailored Services Branch within the Child Support, Indigenous and Tailored Services Division of SA. She has been employed in that role since 2012.
(c)That the team in which she works is responsible for searching for and retrieving Child Support Master Programme customer documents from paper and electronic systems held by SA when a request is made for access under the FOI Act.
(d)The steps that are taken by those in her team in searching for and retrieving documents, including recordings of telephone conversations where that material is the subject of FOI Act requests.
(e)After undertaking the search and retrieval actions described in respect of the Respondent’s request, 552 individual pages of documents were identified as being within the scope of the request.
(f)In her experience it takes three minutes to search and retrieve each document issued by SA and five minutes to search for and retrieve each piece of correspondence received by SA.
(g)In relation to recordings of telephone conversations with the Respondent, the searches of the relevant systems disclosed that there had been a total of 83 telephone conversations with the Respondent, 76 of which had been recorded and came within the scope of the Respondent’s request.
(h)The total duration of the recorded telephone conversations with the Respondent was nine hours, 54 minutes and 35 seconds. The search for and retrieval of these recordings took approximately two hours.
The Applicant’s submissions
The Applicant’s SFIC was to the following effect:
(a)SA undertook a valid request consultation process under s 24AB of the FOI Act and took all reasonable steps to assist the Respondent. The consultation notice issued by SA and the subsequent consultation process that it undertook satisfied the requirements of s 24AB of the FOI Act.
(b)Alternatively, any defect in the consultation process was addressed through the IC review process (citing VMQD and Commissioner of Taxation[21] (VQMD)).
[21] [2018] AATA 4619.
A practical refusal reason exists
(c)Processing the Respondent’s request would “substantially and unreasonably divert the resources of the agency from its other operations”. Relevantly the Tribunal in VQMD held at [82]–[83]:
The process of this decision making involves several steps as spelt out in Langer. In the first instance the agency must make an assessment of the amount of work involved. … [T]he number of hours involved is not, on its own, sufficient to establish that a practical refusal reason has been established.
… [T]he 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.”
(Footnotes omitted.)
(d)In Langer and Telstra Corporation Ltd[22] (Langer), referred to in the above cited passage from VQMD, the Tribunal considered the meaning of the word “substantial” and, after reviewing the case law, concluded (at [115]):
[22] (2002) 68 ALD 762; [2002] AATA 341.
… the work involved in processing a request will only substantially … divert the resources of an agency if the work is real or of substance and not insubstantial or nominal…
(e)Relevantly the FOI Guidelines (at para 3.119) provide:
… it is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason … 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.
(Footnotes omitted.)
(f)An estimate of the time taken to process an FOI request is a relevant consideration when deciding whether a practical refusal reason exists (citing ‘JC’ and Department of Health[23] and ‘FX’ and Department of Prime Minister and Cabinet).[24]
[23] [2016] AICmr 47.
[24] [2015] AICmr 39.
(g)Para 3.121 of the FOI Guidelines provides:
It is recommended 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. A representative sample of between 10 to 15% of the documents within the scope of the request has been considered to be an appropriate sample size for the purposes of calculating processing time when deciding whether a practical refusal reason exists.
(Footnotes omitted.)
(h)The Applicant has prepared estimates of the time required to process the release of those documents and telephone call recordings under the FOI Act based on a review of all of those pages of documents and 29 out of 76 telephone call recordings.[25] The estimate of the time that it will take to process the request is approximately 88.5 hours which equates to a single FOI officer spending 2.36 weeks of full-time working hours to process the Respondent’s request.
[25] See affidavits of Mr Pratt (A3) and Ms Scott (A4).
(i)The estimate of the time that it will take to process the request is based on assessments of samples of documents and recordings far in excess of the sample size recommended by the FOI Guidelines (see [39](h) above).
(j)Almost every page of the documents and all the call recordings listened to contain information that is subject to Child Support secrecy provisions. Relevantly, sch 3 of the FOI Act specifies that s 150(2)(b) of the Child Support (Assessment) Act 1989 (Cth) and s 16(2)(b) of the Child Support (Registration and Collection) Act 1988 (Cth) are sections to which the secrecy provisions exemption in s 38 of the FOI Act applies.
(k)Each page of the documents and every second of the call recordings would need to be carefully reviewed in order to identify and apply redactions to any information subject to the Child Support secrecy provisions.
(l)The processing time for telephone call recordings relating to the Child Support programme takes, on average, five times as long as the recording itself.
(m)The estimated 6.5 hours of decision making time is reasonable when one has regard to other IC decisions, where an estimate of 28 hours has been accepted as a reasonable estimate for scheduling over 5000 pages, and seven hours has been accepted as a reasonable estimate for scheduling 1300 pages. Given the evidence in the Pratt affidavit[26] of the time-consuming nature of processing telephone call recordings, the Applicant submits that the estimated 6.5 hours of decision-making time is a conservative and reasonable estimate in the circumstances of this matter, especially in light of the guidance provided by other IC decisions.
[26] A3.
(n)While there is no set threshold exceeding which a number of hours of processing time would constitute a substantial diversion of resources, the Applicant notes the following previous IC decisions in which practical refusal decisions involving less than 100 hours of processing time have been upheld:
(i)‘OM’ and Australian Taxation Office:[27] 80 hours;
[27] [2018] AICmr 41.
(ii)Adrian Wright and Department of Human Services:[28] at least 86 hours;
[28] [2017] AICmr 127.
(iii)‘JH’ and Australian Securities and Investments Commission:[29] 71 hours; and
[29] [2016] AICmr 55.
(iv)Gurjit Singh and Attorney-General’s Department:[30] 74 hours.
[30] [2015] AICmr 20.
(o)In the case of Chief Executive Officer, Services Australia and Paul Farrell[31] (Farrell), the Tribunal (at [51]) found that a processing time of 61.25 hours would be a substantial diversion of SA’s resources.
[31] [2020] AATA 2390.
(p)The diversion of resources is unreasonable. In her submissions, the Applicant sets out the number of staff employed by SA and other government departments and agencies, as well as other data relating to the processing of FOI requests by these departments and agencies. These show that SA has one of the highest FOI workloads of any department or agency.
(q)Statistics published by the OAIC show that SA is consistently (over the last four years) in the top two agencies for FOI workload and that FOI requests against full time equivalent staff shows an average of 95 requests processed per year per staff member, with an average of 2.8 days per request. The statistics also show that in approximately 99% of cases SA processed an FOI request within the statutory timeframe.
(r)SA is responsible for the development of service delivery policy and provides access payments and services, particularly for the Centrelink, Medicare and Child Support programmes. SA receives a high volume of FOI requests, approximately 96% of which are customers requesting their personal information. Accordingly, SA's FOI team interact with a range of business areas across the agency for FOI requests and consider a variety of complex and sensitive documents.
(s)Processing the Respondent's FOI request, which it is estimated will take over 88 hours to complete, will divert resources away from:
(i)processing requests for information of other customers and other members of the public; and
(ii)SA carrying out its primary function of delivering critical services to the Australian community.
(t)Other relevant factors in this case are that steps were taken by the Applicant to cooperate with the Respondent in relation to his request and that the requested documents have been otherwise published (see Dreyfus and Attorney-General (Commonwealth of Australia)[32] (Dreyfus) and FOI Guidelines para 3.117). In that regard SA has previously provided the Respondent with administrative access to all but 38 pages of those documents and to all of the telephone call recordings during 2019.
(u)Because of the exclusions that will apply and the redactions that will have to be made to comply with the FOI Act, it is likely that the Respondent will be provided with less information than he has already been given via SA's administrative access arrangements.
(v)The Respondent has been offered access to the remaining 38 pages through administrative access arrangements and has refused.
[32] (2015) 68 AAR 207; [2015] AATA 995.
CONSIDERATION
The Respondent has chosen not to be involved in the hearing of this application or to make any relevant submissions.
The uncontested evidence of the Applicant’s witnesses, Mr Pratt and Ms Scott, is that it will take approximately 88.5 hours to process the Respondent’s request. The basis of the calculation of that time is set out in great detail in their affidavits and the Tribunal accepts that evidence.
The IC decision took issue with the methodology that SA had applied in coming to the estimate of the time that it would take to process the FOI Act request. The IC noted that the FOI Guidelines provide for “[a] representative sample of between 10 to 15% of the documents within the scope of the request …”[33] and found that SA “ha[d] not provided any evidence that it has undertaken an assessment of a sample of the documents identified … [in] reaching the overall estimate of processing time”. The IC decision further found that, “… on the information before me, I am not satisfied that Services Australia has established that its estimate of processing time is justified”.[34]
[33] A6, T14/79.
[34] A6, T14/80.
That “deficiency” has been thoroughly addressed in the affidavits of Mr Pratt and Ms Scott.
Will processing the Respondent’s request involve a diversion of resources?
The Tribunal finds that the processing of the Respondent’s request would substantially divert resources of SA from its other operations. In that regard the Tribunal accepts the Applicant’s submissions set out in [39](q) to [39](t) above, which are supported by the evidence of Mr Pratt and Ms Scott. In so doing the Tribunal is mindful that the test under s 24AA(1)(a)(i) is whether “processing the request” (emphasis added) “would substantially and unreasonably divert the resources of the agency from its other operations”. That section directs attention to the effect of the diversion of resources in processing the specific request on “other operations”. On the face of it, those “other operations” would include the processing of other requests for access under the FOI Act. Clearly, having to spend 88.5 hours processing the Respondent’s request will tie up resources in the FOI section of SA that would otherwise be processing other FOI requests.
The same approach was taken by the Tribunal in Farrell wherein, at [40] and [41], Senior Member O’Donovan found:
40.The terms of section 24AA creates a dichotomy between ‘the work involved in processing the request’ on the one hand and the agency’s ‘other operations’. There is no textual or contextual reason for reading down the ‘other operations’ of the agency to exclude the work that the agency does on processing other FOI requests. I am fortified in this conclusion by the FOI Guidelines which include, as a relevant matter in deciding if a practical refusal reason exists, ‘the impact that processing a request may have on other work in an agency or minister’s office, including FOI processing’. (Citing FOI Guidelines para 3.117.)
41.In light of this conclusion, the starting point is that the respondent’s FOI request does involve the diversion of 61.25 staff hours from the other operations of the Department.
(Original emphasis.)
Is the diversion of resources substantial?
In her submissions, the Applicant referred to a number of cases in which the IC and the tribunal has found that diversion of resources for less time than would be involved in processing the Respondent’s request was a substantial and unreasonable diversion of resources (see [39](o) and [39](p) above).
Senior Member O’Donovan in Farrell provided a useful summary of judicial consideration of the term “substantial” when used in legislation. At [43] to [46] he observed:
43.It has long been recognised that the use of the word ‘substantial’ is both susceptible to ambiguity and is a word ‘calculated to conceal a lack of precision’. It is also a term whose meaning can range, depending on context, from requiring that something be ‘large weighty or big’ or merely indicate that something needs to be ‘real or of substance’. Accordingly, a constructional choice needs to be made in relation to the meaning of the word ‘substantially’ in the context in which it appears.
44.In Langer and Telstra Corporation Ltd [2002] AATA 341, Deputy President Forgie concluded that in section 24 (which in 2002 contained a similar provision to section 24AA) the ‘substantially’ threshold required only that the diversion of the resources of the agency be ‘real or of substance’ rather than large.
45.There are strong contextual reasons for favouring this meaning of the term.
46.At the point in time at which the FOI Act was introduced, it was recognised that introducing a system whereby a person could apply for documents which must be provided unless those documents were exempt, had serious resource implications for agencies required to administer requests. Section 24, in its original and amended form, were designed to deal with this issue.
(Footnotes omitted.)

I respectfully adopt the above comments, and the view of Deputy President Forgie at [115] in Langer referred to in [44] of Farrell, namely that the diversion of resources need only be “real or of substance” rather than large. That threshold, and more, is met in the present case. In any event, even if “substantial” is taken to mean “large”, the diversion of resources for 88.5 hours meets that test as well.
Is the diversion of resources reasonable?
In Dreyfus, Jagot J (at [43]) observed that the determination of what is reasonable “ … is a question of fact and degree which calls for a balancing of all the legitimate interests …”.
Paragraph 3.117 of the FOI Guidelines provides guidance on the matters to be taken into account in deciding whether a practical refusal reason exists. That relevantly provides:
Other matters that may be relevant in deciding if a practical refusal reason exists include:
•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
…
All of the above considerations are relevant in the present case, however, the Tribunal notes in particular the last two bullet points. Other than the general public interest in departmental documents being available on request under the FOI Act, there is no particular public interest in the documents requested by Respondent being made available. More significantly, however, the last bullet point is particularly relevant in the present case. The Applicant has already provided the documents requested (in some cases more than once) and has offered to release the relatively small balance through administrative access arrangements. That, in the Tribunal’s view is very significant. Insofar as any interest is served by the release of the documents in question, that interest has already been met.
The fact that all of the nearly 10 hours of recordings of 76 telephone conversations with the Respondent have already been provided to him by SA, and the fact that all but 38 of the 572 pages of documents that come within the scope of the request have already been provided to the Respondent, makes the diversion of SA’s resources for 88.5 hours to provide documents under the FOI Act unreasonable.
In undertaking the balancing exercise envisaged by Jagot J in Dreyfus, the balance of interests does not favour the Respondent or the expenditure of a considerable amount of SA’s resources.
The Tribunal is satisfied that in the circumstances, the diversion of resources to complete the provision of documents in response to the Respondent’s request under the FOI Act is not reasonable.
DECISION
For the reasons set out above, the Tribunal is satisfied that the work involved in processing the Respondent’s request would substantially and unreasonably divert resources of SA from its other operations. Accordingly, the Tribunal finds that a practical refusal reason under s 24AA(1)(a)(i) of the FOI Act does exist. As a result, the Tribunal sets aside the IC decision and substitutes a decision that a practical refusal reason under s 24AA(1)(a)(i) of the FOI Act does exist.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 5 May 2021

Date of hearing: 16 February 2021

Counsel for the Applicant: Mr T Galvin

Solicitors for the Applicant: MinterEllison

Respondent: No appearance

Date of hearing:	16 February 2021
Counsel for the Applicant:	Mr T Galvin
Solicitors for the Applicant:	MinterEllison
Respondent:	No appearance