Morgan and Australian Building and Construction Commissioner

This matter concerned an appeal from a decision of the Australian Information Commissioner (AIC) affirming the Australian Building and Construction Commission's (ABCC) refusal of Mr Morgan's request for documents. Mr Morgan sought documents relating to the ABCC's investigation and subsequent litigation, covering a period from November 2011 to December 2016. The ABCC had refused the request under section 24 of the *Freedom of Information Act 1982* (FOI Act), citing a practical refusal reason, specifically that processing the request would substantially and unreasonably divert the agency's resources from its other operations, as permitted by section 24A(1)(a)(i) of the FOI Act.

The primary legal issue before the court was whether the ABCC was justified in refusing Mr Morgan's FOI request on the grounds that it would substantially and unreasonably divert its resources. This involved considering the scope of the right to access documents under the FOI Act, the conditions and exceptions to that right, and the specific provisions relating to practical refusal reasons. The court also had to determine whether the reasons of the applicant for making the request could be considered in the assessment of whether to grant access, and if there was any public interest in fulfilling the request that might outweigh the practical refusal reason.

The court affirmed the ABCC's decision, applying the principles of the FOI Act. It was established that the right to access documents is qualified and subject to the provisions of the Act, including those allowing for refusal on practical grounds. The court found that the ABCC had correctly applied section 24 of the FOI Act by identifying a practical refusal reason, namely the substantial and unreasonable diversion of resources. The court's reasoning indicated that the applicant's reasons for the request were not a determinative factor in the context of a practical refusal, and that the public interest considerations were secondary to the threshold issue of whether the request could be processed without undue burden on the agency's operations.