Shafran and Secretary, Department of Veterans' Affairs (Freedom of information)
[2025] ARTA 799
•23 June 2025
Shafran and Secretary, Department of Veterans' Affairs (Freedom of information) [2025] ARTA 799 (23 June 2025)
Applicant/s: Geoffrey Shafran
Respondent: Secretary, Department of Veterans' Affairs
Tribunal Number: 2022/8577
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:23 June 2025
Decision:1. The Tribunal affirms the decision under review dated 3 November 2021 to not give access to documents requested under s 42 of the Freedom of Information Act 1982.
2. The Tribunal affirms the decisions by the Department to refuse the Applicant’s requests under s 24(1) of the Freedom of Information Act 1982.
..................[SGD]......................................................
Deputy President P Britten-Jones
Catchwords
Freedom of Information – consideration of s 42 of the Freedom of Information Act 1982 (Cth) (FOI Act) – legal professional privilege - whether privilege fails due to an improper or illegal purpose – model litigant obligations and the Legal Services Directions 2017 (Cth) - decision refusing access under s 42 of the FOI Act is affirmed – consideration as to whether to refuse access to documents under s 24 of the FOI Act on the basis that the work involved in processing access requests would substantially and unreasonably divert resources away from other operations – consideration of paragraph 3.113 of the FOI Guidelines – decisions refusing access under s 24(1) of the FOI Act affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth)
Cases
AWB Ltd v Cole(No 5) (2006) 155 FCR 30
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 53
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278
Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49
‘FF’ and Australian Taxation Office [2015] AICmr 25
Grant v Downs (1976) 135 CLR 674
Gurjit Singh and Attorney-General’s Department [2015] AICmr 20
Hillier v Martin (No 19) [2024] FCA 210
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Mann v Carnel (1999) 201 CLR 1
Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728
Russell v Jackson (1851) 9 Hare 387; 68 ER 558
Shafran v Secretary of the Department of Veterans’ Affairs [2024] FCA 621
Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166
Taggart and Civil Aviation Safety Authority (Freedom of Information) [2016] AATA 327
Tate and Director, Australian War Memorial [2015] AATA 107
The Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543Waterford v The Commonwealth (1987) 163 CLR 54
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (Cth)
Legal Services Directions 2017, made under s 55ZF of the Judiciary Act 1903 (Cth)
Statement of Reasons
The Applicant has requested access to documents from the Department of Veterans’ Affairs (the Department) under the Freedom of Information Act 1982 (Cth) (the FOI Act).[1] There are three separate access requests that the Tribunal must consider. Two of the requests (FOI 21820 and FOI 25566) were refused by the Department under s 24 on the basis that the work involved in processing those requests would substantially and unreasonably divert resources away from other operations. In response to the third request (FOI 45901), the Department identified six documents but refused access under s 42 on the basis of legal professional privilege.
[1] All references to legislation are to the FOI Act unless otherwise stated.
The Applicant applied to the Office of the Australian Information Commissioner (OAIC) for a review of each of the Department’s decisions. On 12 September 2022, a delegate of the Information Commissioner (IC) decided under s 54W(b) not to undertake reviews of the three decisions. The Applicant lodged his application for review of the three decisions with the Tribunal on 19 October 2022. The parties decided that the hearing should be divided into two. On 26 March and 9 April 2025, the Tribunal heard evidence and submissions relating to FOI 45901 on the question of whether the documents in issue are exempt on the grounds of privilege under s 42 of the FOI Act. On 30 April and 1 May 2025, the Tribunal heard evidence and submissions relating to FOI 21820 and FOI 25566 on the question of refusing access under s 24 of the FOI Act.
It is convenient to consider first the legal professional privilege claim and then the other two access requests together.
STATUTORY FRAMEWORK
Freedom of Information Act 1982
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General:[2]
…The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[2] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(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 promote the objects in s 3(1)(b), s 11(1) provides that:
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.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the FOI Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
THE CLAIM FOR EXEMPTION UNDER SECTION 42 – LEGAL PROFESSIONAL PRIVILEGE
Section 42 and Case Law on legal professional privilege
The Department has refused access to certain documents as exempt from disclosure due to a claim of legal professional privilege. Section 42 provides:
Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
A document will be exempt from disclosure pursuant to s 42 if it would be privileged from production in legal proceedings on the ground of legal professional privilege. There is no definition of legal professional privilege in the FOI Act and therefore one turns to the common law concepts.
The principle of professional privilege to be applied in Australia was first stated by Barwick CJ in Grant v Downs at 677:[3]
…a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
[3] (1976) 135 CLR 674.
The relevant principles were later articulated by Young J in AWB Ltd v Cole (No 5) at [44]:[4]
(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions.
(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.
(3) The existence of legal professional privilege is not established merely by the use of verbal formula. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving “legal advice”. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed.
(4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
(Citations removed)
[4] (2006) 155 FCR 30, 44-5.
Advice given to government departments by their legal advisers is capable of attracting legal professional privilege.[5] Privilege also attaches to communications from in-house lawyers:[6]
It is not disputed that communications and information between an agency and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether the legal advisers are salaried officers, provided that they are consulted in a professional capacity in relation to a professional matter and the communications arise from the relationship of lawyer client. There is no requirement that an in-house lawyer hold a practising certificate provided that the employee is acting independently in giving the advice.
[5] Waterford v The Commonwealth (1987) 163 CLR 54.
[6] Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728 at [13].
The privilege attaches to the communication[7] and not just to the information within it.
[7] Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 at 64-5.
The Applicant accepts that the documents in issue would be privileged from production in legal proceedings on the ground of legal professional privilege but says that the privilege is waived because of an alleged illegal or improper purpose. The Applicant argued that the documents should be disclosed for numerous reasons including that the Department did not act as a model litigant, failed to comply with the Information Commissioner Guidelines and engaged in a defective search process. Further, the Applicant says that disclosure would cause no harm and would be in the public interest.
In Russell v Jackson[8] Turner V-C said:
… I am very much disposed to think that the existence of the illegal purpose would prevent any privilege attaching to the communication. Where a solicitor is party to a fraud no privilege attaches to the communications with him upon the subject because the contriving of a fraud is no part of his duty as solicitor; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the means of evading the law.
[8] (1851) 9 Hare 387 at 392–3; 68 ER 558 at 560.
Doyle CJ in Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co[9] considered the authorities[10] and concluded at 174:
I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart. It is not enough, I consider, that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity. It is not enough, I consider, that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic. In light of the authorities, one cannot be more precise than that.
[9] (1997) 70 SASR 166, 174 (‘Southern Equities’).
[10] For a more recent analysis of the authorities, see Hillier v Martin (No 19) [2024] FCA 210 at [154] to [167].
The first thing to note from the Southern Equities case is that there needs to be material raising an arguable case, sometimes referred to as evidence which raises a prima facie case. An assertion without an evidentiary foundation or based on speculation would not suffice. The second thing is that focus is required on the purpose of the relevant communications and whether that purpose was to further or assist a crime or fraud. The purpose of the communication will often be apparent from the terms of the communication itself seen in the context of the circumstances surrounding the communication. It is not enough to point to the conduct of the Respondent more generally as a reason for the privilege failing. The relevant conduct of the Respondent is its purpose for making the communication.
Evidence
The Applicant, by his email dated 4 October 2021, is seeking access to:[11]
(a)The instruction that was provided to Ms Oliver the Australian Government Solicitor to seek summary dismissal in Geoffrey Shafran v Secretary of the Department of Veterans’ Affairs & Ors – WAD 262/2020; and
(b)All information associated with the decision to seek summary dismissal in the same matter, including legal advice.
[11] Tribunal Book tab 1, 99.
Ms Amanda Taylor provided an affidavit on 1 August 2023 as the Acting Assistant Secretary of the Litigation and Advice Branch, General Counsel Division of the Department of Veterans’ Affairs.[12] She describes the documents identified in response to the request, deposes to the legal adviser-client relationship and confirms that the material in question contains legal advice that the Department sought and obtained regarding its litigation strategy in the Federal Court proceedings which were the subject of the Applicant’s request (the Federal Court proceeding).
[12] Ibid tab 10, 256-9.
Ms Taylor explains in her affidavit at [12] that Sarah Oliver was engaged as counsel and the Australian Government Solicitor (AGS) was engaged as the solicitor for the Department in the Federal Court proceeding brought by the Applicant, Mr Shafran.[13] Those proceedings were initiated by the Applicant by an originating application filed in the Federal Court on 20 November 2020.[14]
[13] Ibid 258.
[14] Ibid tab 86, 1524.
On 17 December 2020, the AGS wrote to the Applicant inviting him to discontinue the Federal Court proceeding or an application for summary judgment would be made. The lawyer for AGS advised that, in the alternative, an order for security for costs may be sought against the Applicant.[15] Subsequently, on 4 January 2021, an application for summary judgment was brought with an affidavit in support from Natasha Cole who was the Department’s First Assistant Secretary.[16] There were some further interlocutory steps, but ultimately, on 13 June 2024, the application for summary judgment was granted by Banks-Smith J and the Applicant’s originating application in the Federal Court proceeding was dismissed.[17]
[15] Ibid tab 35, 746.
[16] Ibid tab 85, 1398.
[17] Shafran v Secretary of the Department of Veterans’ Affairs [2024] FCA 621 (‘Shafran’).
The Department identified six documents dated 8 and 9 December 2020 in response to the Applicant’s request. They comprise:[18]
(a)Counsel’s written advice from Ms Oliver to the AGS;
(b)Email of legal advice from the AGS to the Department;
(c)Emails in which lawyers in the Department’s in-house legal team consider the legal advice from Ms Oliver and the AGS and in which they provide instructions to the AGS.
[18] Tribunal Book tab 10, 258 [11].
Ms Taylor deposes in her affidavit at [13] that, at the time the advice was provided, Ms Oliver and the AGS were retained to represent the Department and to provide advice regarding the Department’s litigation strategy in the Federal Court proceeding.[19] It would appear that the AGS informed Mr Shafran of that strategy in its letter to him dated 17 December 2020.
[19] Ibid [13].
Contentions and Consideration of Privilege Claim
I have had access to and have read the documents in issue and it is apparent from their contents that the communications were not made for any illegal or improper purpose. Ms Taylor in her oral evidence expressed the same conclusion. Without disclosing the contents of the communications, I can say that their purpose related to quite proper litigation strategies in response to the Federal Court proceeding brought by the Applicant.
The Applicant alleges that the Respondent failed to comply with FOI Guidelines[20] and failed to meet the requirements of their role to assist the Tribunal or to act as a model litigant. In my view, these allegations are not relevant to the issue of whether privilege has been waived which requires a consideration of the purpose of the communications. It is not enough to point to the conduct of the Respondent more generally as a reason for the privilege failing. The relevant conduct of the Respondent is its purpose for making the communication.
[20] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (Cth) (‘FOI Guidelines’).
Further, the submission in relation to model litigant obligations should not have been made because those obligations are contained in para 2 of Appendix B to the Legal Services Directions 2017 (Cth), an instrument made by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth) and s 55ZG relevantly provides that compliance with a Legal Services Direction is not enforceable except by, or on the application of, the Attorney-General and that ‘the issue of non-compliance may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth’.
The Applicant has also alleged that the Department’s search process was defective and contrary to its own guidelines. This allegation is a general complaint about the conduct of the Respondent and it is not relevant to the question of purpose in the sense previously discussed. In any event, Ms Taylor reviewed the evidence of the Department’s searches, in particular the Document Search Minute,[21] and was satisfied that those searches ‘were appropriate and comprehensive’.[22] Ms Taylor was cross examined and explained about the Department’s system of storing electronic documents with which she was familiar. She referred to the particular searches of storage locations set out in the Document Search Minute, and she confirmed that the searches were comprehensive and that the documents identified by the Respondent in response to the Applicant’s request were the only documents that met that request. Ms Taylor was not involved in the searches that had previously been conducted but I accept her evidence that those searches were satisfactory and that the Document Search Minute was accurate.
[21] Tribunal Book tab 1, 106-112.
[22] Ibid tab 10, 257 [10].
The Applicant has made numerous other complaints about the conduct of the Respondent in the Federal Court proceeding but I consider that none of these complaints give rise to an improper purpose or fraud and they are not relevant to the question of purpose. For example, the Applicant considered the threat of a security for costs application to be improper and that the Respondent failed to put on all relevant documents and had therefore misled the Court in the Federal Court proceeding. These are matters that relate to the Federal Court proceeding. There is no factual foundation for these submissions and there is certainly no prima facie evidence of an improper purpose or any fraud. Further, it is apparent from the reasons of Banks-Smith J[23] that many of the issues being raised by the Applicant on this application were dealt with in the Federal Court proceeding. If the Applicant considered the decision of Banks-Smith J to summarily dismiss his application was wrong, then an appeal could have been lodged, but there was no appeal.
[23] Shafran (n 17).
The Applicant submits that there would be no real harm if access were given to the documents in issue or part of them. The Applicant says that the ‘real harm’ test[24] has not been considered and that the Tribunal should determine itself whether there would be any harm in the documents being released. This submission is misconceived because the Tribunal is conducting a review of a decision to refuse access to the documents because the Department decided they were exempt under s 42 of the FOI Act. A similar argument was rejected in Bennett v Chief Executive Officer of the Australian Customs Service[25] by Madgwick J who said:
The applicant’s argument depends upon a theory that the FOI Act vested in the AAT power to review decisions other than those refusing to grant access to documents in accordance with a request duly made for such access. That does not appear to be contemplated by s 55 which, relevantly, limits the decisions as to which application may be made to the AAT for review to decisions refusing access. However, s 58(1) clearly envisages AAT review of some ancillary decisions relating to such requests. Nevertheless, s 58(1) is expressly made subject to the rest of s 58 and 58(2) makes it clear that if the agency establishes that a document is exempt, as for example because of legal professional privilege, then the AAT does not have power to override a discretionary decision not to grant access to it. The agency did so establish, and s 58(2) therefore forecloses the matter. Further, what the applicant asks would involve the AAT in a contravention of s 63(c). In these circumstances considerations of the general propriety of having regard to government policy (cf Drake) cannot override the Act’s prohibitions. The claim must fail.
[24] See FOI Guidelines at 5.177.
[25] [2003] FCA 53 at [52].
The reasoning above was upheld by the Full Court on appeal:[26]
…The fact that no real harm would result from disclosure of privileged material is a consideration to be taken into account in deciding whether to refuse access on the ground that the document is exempt by the operation of s 42. The Tribunal decided that the documents in question were exempt by the operation of s 42. It necessarily follows that the Tribunal considered that a decision should be made refusing access on the ground referred to in s 42. There was no error of law in failing to consider whether to permit access because no real harm would result from access being given…
[26] Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, 114 [49].
Further as to whether non-substantive parts of the communications should be disclosed, the authorities establish that the communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for an observance of the law.[27] In so far as the decision of the Tribunal in Taggart and Civil Aviation Safety Authority (Freedom of Information)[28] suggests that some parts of the communications may be disclosed, as argued by the Applicant, I would disagree because the privilege attaches to the whole of the communication and the rule of legal professional privilege has been strictly applied by the courts.[29]
[27] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 571; and Comcare v Foster [2006] FCA 6 at [31] – [35]
[28] [2016] AATA 327 at [61].
[29] The Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543, 553 [11].
I conclude that documents 1 to 6 would be privileged from production in legal proceedings on the ground of legal professional privilege and that they are exempt documents pursuant to s 42 of the FOI Act. It follows that the Department is not required to give the Applicant access to them because of s 11A(4). The documents are exempt from disclosure under Division 2 of Part IV of the FOI Act and are not subject to an overriding public interest test. The documents meet the criteria in s 42 and therefore there is no additional obligation to weigh competing public interests to determine if the documents should be released.[30]
[30] FOI Guidelines (n 20) 5.11.
The decision of the Respondent dated 3 November 2021 to not give access to documents 1 to 6 under s 42 of the FOI Act should be affirmed.
THE REFUSAL TO GIVE ACCESS UNDER SECTION 24
Section 24 and Case Law
Section 24 of the FOI Act provides:
Power to refuse request--diversion of resources etc.
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB); and
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists--the agency or Minister may refuse to give access to the document in accordance with the request.
Section 24AA provides:
When does a practical refusal reason exist?
(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.
The FOI Guidelines provide the following guidance for assessing or sampling for the purposes of determining a practical refusal reason (references removed):
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.
3.120 It is nevertheless expected that an agency or minister will provide a breakdown of the time estimated for each stage in processing a request. As discussed in Part 4 of the Guidelines, a commonly used tool for estimating processing time is a ‘charges calculator’. Some versions of charges calculators contain a number of predetermined parameters based on assumptions as to how long an FOI request should take to process. Agencies should be mindful that the use of a ‘charges calculator’ with these predetermined parameters only provides a rough estimate of how long FOI decision-making will take and is not suitable for estimating the processing time for the purposes of practical refusal decision.
3.121 An estimate of processing time is only one consideration to be taken into account when deciding whether a practical refusal reason exists. 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. 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. The assessment of the sample would provide an indication of the complexity of the potential decision, that is, the number of exemptions required, the topic and content of the documents, and the number of consultations required and effort required to contact third parties based on available contact details.
The FOI Guidelines also refer to a number of examples where the IC or the Tribunal has previously held that a practical refusal reason exists:[31]
a) In Tate and Director, Australian War Memorial [2015] AATA 107, a practical refusal reason was found to exist in circumstances where an estimate of 150 hours was given to process request capturing 1003 pages (noting the War Memorial is a small agency with only one staff member available).
b) In ‘FF’ and Australian Taxation Office [2015] AICmr 25, a practical refusal reason was found to exist in circumstances where an estimate of 94.16 hours was given to process request capturing approximately 6500 pages.
c) In Gurjit Singh and Attorney-General’s Department [2015] AICmr 20 a practical refusal reason was found to exist in circumstances where an estimate of 74 hours was given to process a request capturing 1800 pages.
[31] FOI Guidelines (n 20) at 3.119 fn 58.
Background Facts to Access Request of 8 April 2018 – FOI 21820
On 8 April 2018, the Applicant made an application under the FOI Act to the Department (FOI 21820)[32] by requesting ‘an opportunity to inspect my file in person’.
[32] Tribunal Book tab 1, 35.
On 4 May 2018, the Department sought clarification from the Applicant regarding the scope of his request, and advised him:[33]
Multiple discrete files correspond to your Unique Identifying Number documenting your various interactions with the Department including files containing documents relevant to your DRCA (formerly SRCA) claim, your VEA client files, your VRB file and a file relating to your requests under Freedom of Information legislation. To ensure that you receive the exact information you require, it would assist the Department if you refined the scope of your request by specifying which file you wish to inspect.
[33] Ibid 37.
In response, the Applicant advised ‘no, and I want everything the department has on me’.[34]
[34] Ibid 36.
On 5 June 2018, the Department issued the Applicant with a notice under s 24AB(2) of the FOI Act advising of an intention to refuse access to the documents sought because a ‘practical refusal reason’ existed under s 24(1) of the FOI Act and invited the Applicant to consider revising the scope of his request.[35] This notice satisfied the request consultation process required by s 24(1)(a).
[35] Ibid 48-51.
On 6 June 2018, the Applicant responded advising he would not be revising the scope of his request.[36]
[36] Ibid 52.
On 7 June 2018, a delegate of the Department decided to refuse the request on practical refusal grounds under section 24AA of the FOI Act.[37] The grounds relied on were that the request would substantially and unreasonably divert the resources of the agency from its operations.
[37] Ibid 10-19.
On 8 June 2018, the Applicant applied to the OAIC for review of the Department’s decision (IC review).
On 12 July 2018, the OAIC provided the Department with notice of the IC review and sought submissions from the Department.[38] The Department provided the OAIC with submissions for the IC review on 24 August 2018.[39] In its submissions, the Department outlined that it had reviewed the searches performed for the FOI request and increased its estimate of the amount of time required to process a part of the FOI request.
[38] Ibid tab 2 143-6.
[39] Ibid 147-52.
On 3 March 2021, the OAIC sought the Department’s consent to share its submissions for the IC review with the Applicant. The Department confirmed it had no objection to the sharing of its submissions and indicated it was willing to discuss the processing of a more refined scope of documents with the Applicant.[40] On 4 March 2021, the OAIC indicated it would provide this information to the Applicant.[41]
[40] Ibid 163-4.
[41] Ibid.
On 12 September 2022, a delegate of the IC decided under s 54W(b) of the FOI Act not to continue to undertake IC reviews in relation to this decision and the two other related decisions (FOI 25566 and FOI 45901).[42]
[42] Ibid tab 1, 127-38.
On 19 October 2022, the Applicant lodged his application for review of the three decisions with the Tribunal.[43]
[43] Ibid 4-9.
Background Facts to Access Request of 20 November 2018 – FOI 25566
On 20 November 2018, the Applicant made an application under the FOI Act to the Department (FOI 25566).[44] In particular, the Applicant requested:
(a)‘every individual document that [the] department deems is “unreasonable conduct”’;
(b)‘the investigation or suchlike that was undertaken into the assessment of the extension to the restriction’;
(c)‘any information/arguments put forward by the complainant for review’;
(d)‘any other information that may be relevant in the circumstances’;
(e)‘all notes made by the, The Chief Operating Officer/Deputy President on consultation with any staff members who have had contact with the complainant during the restriction period’; and
(f)‘All emails and other notes to and from the CLU in relation to this CLU restriction’.
[44] Ibid 55-6.
On 21 November 2018, the Applicant sent a further request under the FOI Act,[45] seeking:
(a)‘a copy of all the file notes generated as a result of my “unreasonable conduct”’; and
(b)‘a copy of the conduct report as it was received by the “relevant Assistant Secretary or Deputy Commissioner”’.
[45] Ibid 60.
On 18 December 2018, the Department issued the Applicant with a notice under s 24AB(2) of the FOI Act advising of an intention to refuse access to the documents sought because a ‘practical refusal reason’ existed under s 24(1) of the FOI Act and invited the applicant to consider revising the scope of his request.[46] This notice satisfied the request consultation process required by s 24(1)(a).
[46] Ibid 66-73.
On 18 December 2018, the Applicant responded advising he would not be revising the scope of his request.[47]
[47] Ibid 74-5.
On 19 December 2018, a delegate of the Department decided to refuse the request on practical refusal grounds under section 24AA of the FOI Act.[48] The grounds relied on were that the request would substantially and unreasonably divert the resources of the agency from its operations.
[48] Ibid 77-86.
On 19 December 2018, the Applicant applied to the Department for internal review of the Department’s decision of 19 December 2018.[49]
[49] Ibid 87.
On 11 January 2019, a delegate of the Department decided to affirm the decision of 19 December 2018.[50]
[50] Ibid 88-98.
On 21 January 2019, the Applicant applied to the OAIC for review of the Department’s decision of 11 January 2019.[51]
[51] Ibid 117-26.
On 8 May 2019, the OAIC provided the Department with notice of the IC review and sought submissions from the Department.[52] The Department provided the OAIC with submissions for the IC review on 25 June 2019.[53] In its submission, the Department further outlined its reasons for the decision made by the delegate on internal review.
[52] Ibid tab 2, 153-5.
[53] Ibid 156-62.
On 3 March 2021, the OAIC sought the Department’s consent to share its submissions for the IC review with the Applicant. On the same day, the Department confirmed it had no objection to the sharing of its submissions and indicated it was willing to discuss the processing of a more refined scope of documents with the Applicant. On 4 March 2021, the OAIC indicated it would provide this information to the Applicant.[54]
[54] Ibid 163-4.
On 12 September 2022, a delegate of the IC decided under s 54W(b) of the FOI Act not to continue to undertake IC reviews in relation to this decision and two other related decisions (FOI 21820 and FOI 45901).[55]
[55] Ibid tab 1, 127-38
As previously stated, on 19 October 2022, the Applicant lodged his application for review of the three decisions with the Tribunal.[56]
[56] Ibid 4-9.
Statement of Reasons from the Department in FOI 21820
On 7 June 2018, the Department provided reasons for its decision to refuse the Applicant’s request that had been made on 8 April 2018. The reasons included the following:[57]
[57] Ibid 11-13.
Request is substantial
14. As noted above, your email dated 6 June 2018 did not narrow the scope of your request. The estimated volume of documents falling within scope of your request is therefore the same as at the date the notice of practical refusal was issued.
…
16. The notice of practical refusal advised you that the Department estimates that 87 hours of processing time is required to deal with this request. The reasons for this are as follows:
·On an indicative sample of 10 of your 31 discrete client files relevant to your request, I conservatively estimate that there are approximately 3, 000 pages of material contained in these files.
·Further to this, I estimate that there are approximately 120 additional emails and other correspondence between you and the Department which correspond to your Unique Identifying Number. In addition, I conservatively estimate that there are approximately 250 emails sent by you to or sent to you from the Client Liaison Unit. In total, I estimate that there are approximately 400 emails and other correspondence relevant to all parts of your request. I estimate that each piece of correspondence, including emails, is, on average, approximately 2 pages in length.
·As there are approximately 4,000 pages in scope, assuming this material can be analysed and a decision made at an average of 1 minute per page, this equates to approximately 67 hours of processing time.
·The relevant documents would have to be analysed and a decision made before they could be released to you. A proportion of the documents requested contain information which is relevant to the operations of the agency and contains personal information of third parties. Such material may be exempt from disclosure under sections 47E and 47F of the FOI Act. I estimate that redactions in respect of such material would take approximately 20 hours to complete.
·A Statement of Reasons will need to be provided to you. I anticipate that it would take approximately 2 hours to draft the Statement of Reasons for this decision, noting on initial review that exemptions under at least sections 47E and 47F would need to be detailed.
17. Taking these factors into account, I have concluded the request is substantial.
Request is unreasonable
18. In considering whether processing your request would constitute an unreasonable diversion of the resources of the agency from its other operations, I have considered the following:
·87 hours of processing time is, at face value, an unreasonable burden for a single FOI request, taking into account the need to process multiple requests at any given time, and the impact such a burden would have on responding to other FOI applicants.
·A large proportion of the documents originated with you. For example, your request encompasses a significant number of emails and correspondence sent by you to the Department and emails previously sent to you by departmental officers.
·Due to the broad nature of your request, the request includes all correspondence between you and the Department as well as all documents contained on your multiple client files dating back to when you first became a client of the Department.
·Some of the documents that are the subject of this request have been the subject of previous FOI requests by you.
·The subject matter of the request is tied more closely to your own personal affairs than to a matter of public importance.
19. Taking these factors into account, I have concluded the work involved in processing your request would unreasonably divert the resources of the agency.
20. For the reasons set out above, I have decided to refuse your request under section 24 of the FOI Act on the grounds that a practical refusal reason exists, being that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.
Statement of Reasons from the Department in FOI 25566
On 19 December 2018, the Department provided reasons for its decision to refuse the Applicant’s request that had been made on 20 November 2018. The reasons included the following:[58]
[58] Ibid 22-4.
Request is substantial
15. Following consultation with the line area, I estimate that over 70 hours of processing time is required to process your request. The reasons are as follows:
·Following initial enquiries with the relevant business area, they have advised me that your request for “…a copy of every individual document that department deems is "unreasonable conduct…” is what gives rise to the practical refusal reason. The business area advised that in conducting your restriction review, they considered all email communications from you during the period 12 May 2018 to 16 November 2018. Further, as you only communicate with the Department via email, “…Any information/arguments put forward by the complainant for review…” would encompass all your emails to the Department within the timeframe. Manual review of all your correspondence in this timeframe is required to determine whether it is an argument put forward by you for review.
·There are approximately 600 emails within the review period on your file. Approximately 30 hours is required identify relevant material (at an average time of 3 minutes per file). Due to the voluminous nature of potentially relevant material and the broad scope of your request, manual verification of the documents is required.
·I estimate that there are approximately 300 emails either received by you or sent to you by the Department. These emails are relevant to your request as you have sought “… a copy of every individual document that department deems is "unreasonable conduct"…” and “…Any information/arguments put forward by the complainant for review"...”
·Further work will also be required to scan relevant documents so that they can be prepared for review and access under the FOI Act. This is expected to take 15 hours (based on 1.5 minutes to scan each document and to save into your FOI electronic file).
·The relevant documents will need to be analysed and a decision made before they can be released to you. The documents subject to your request are in relation to your CLU review including internal emails. Such material may be exempt from disclosure under sections 47E and 47F of the FOI Act. I estimate that consideration of the exemptions and applicable redactions in respect of such material would take approximately 5 hours to complete (based on a conservative estimate of 1 minute per page to redact relevant material).
·Further to the previous point, a Statement of Reasons will still need to be provided to you. I anticipate that it would take approximately 2 hours to draft the Statement of Reasons; noting that any exemptions to be applied will need to be detailed. I also estimate that approximately 10 hours is required to prepare the Schedule of documents for this decision due to the high volume of documents subject to your request.
The above estimate does not take into account the time taken to undertake the initial consultation with you or to issue this decision to you.
Taking these factors into account, I have concluded the request as it currently stands is substantial.
Request is unreasonable
For the purpose of providing this decision, I have considered whether the substantial resource burden would be unreasonable having regard to the following:
·70 hours of processing time is, at face value, an unreasonable burden for a single FOI request, taking into account the need to process multiple requests at any given time, and the impact such a burden would have on responding to other FOI applicants and for the relevant business area to undertake their designated duties.
·A large proportion of the documents originated with you. For example, this request encompasses a significant number of emails and correspondence sent by or to you.
·The subject matter of the request is tied more closely to your own personal affairs than to a matter of public importance.
Taking these factors into account, I have concluded the request as it currently stands is unreasonable, as well as substantial (as outlined above).
On 11 January 2019 the Applicant was provided with an internal review decision in which the decision maker affirmed the decision under review.[59] The internal review decision provided a breakdown of the estimated processing time that was the same as that adopted in the initial decision. The decision maker formed the view that the estimated time to process the Applicant’s request was substantial and found that the estimated time to process the request was around 67 hours.
[59] Ibid 88-98.
Affidavit Evidence from Amanda Taylor
Ms Taylor has provided affidavits dated 28 and 29 June 2023 in relation to the two access requests which have been refused under s 24. In both affidavits she deposes to the following matters:
(a)her knowledge of the file management system and record keeping practices and procedures of the Department;
(b)the details of numerous relevant information management systems which store electronic copies of documents;
(c)that, although the Department has undertaken a process of digitisation, the Department does still hold some paper and archive records which are stored in a number of physical locations; and
(d)the details of the Department’s current procedures with respect to FOI requests generally.
In relation to FOI 21820, Ms Taylor considers that the estimate of time required for processing the Applicant’s request is likely to be much higher than what is suggested in the decision of 7 June 1018.[60] Ms Taylor provides her analysis in her affidavit of 28 June 2023 as follows:[61]
[60] Ibid tab 8, 210 at [32].
[61] Ibid 212-14.
Current analysis
40. In my view, the Department’s submissions set out a conservative estimate of the total volume of information held by the Department regarding the applicant. I have reviewed this estimate, which is based on the data size of the sample from the three accessible TRIM containers:
40.1. The main TRIM container – 817+ megabytes (MB) (based on 706MB for the 2,672 page sample);
40.2. The CLU TRIM container – 1,246MB or 1.2 gigabytes (GB) (based on a 10% sample of 125MB); and
40.3. The 9 records in the 00029576D TRIM container – 1.6MB.
41. Based on these calculations, the total approximate data size for the 3 accessible TRIM containers is 2.06GB.
42. Using the assumption gleaned from the sample of the 10 files in the main TRIM container (i.e. that there are 2.673 pages for every 706MB of data), I am satisfied that 2.06GB of data would equate to approximately 8,000 pages. I note that the Department spent 2 full work days or 15+ hours conducting this review and sampling exercise. I have reviewed the available documentation which records this exercise and am satisfied with the process and calculations.
43. In reviewing this request I have had consideration of the Department’s current procedures in responding to FOI requests as well as an understanding of the Department’s existing management systems. I am aware that since 2018 there have been changes to the way that the Department responds to FOI requests, and specifically, that this process is now done electronically, using Adobe Pro.
44. I have considered the estimate set out in the IC review submission that it would take 402 hours to process the applicant’s FOI request, consisting of:
44.1. Review of at least 8,000 pages at 1 minute per page – 133 hours;
44.2. Redactions of at least 8,000 pages at 1 minute per page – 133 hours;
44.3. Draft decision – 3 hours;
44.4. Prepare schedule of documents (4 hours for every 250 documents) – 128 hours; and
44.5. Consultation of (at least two) third parties under the FOI Act on the basis their personal or business information appears in the documents and they might reasonably wish to make an exemption contention – 5 hours.
45. This estimated processing time of 402 hours is based only on the 3 accessible TRIM files. I note that it does not take into account:
45.1. the additional 400 emails which were located;
45.2. the further inaccessible TRIM containers relating to the applicant which are located off site. These containers have not been similarly analysed and it is currently unknown how many additional relevant documents may be held in those containers; and
45.3. the other systems listed in paragraph 7 of my affidavit above.
If these additional containers and systems were also searched, I do not consider that it would be unreasonable to expect this estimate may increase.
46. Significantly, since the reviewable decision dated 7 June 2018 and the IC submissions were prepared on 24 August 2018, the Department’s procedures with respect to FOI requests generally as set out in paragraph 9 have changed. FOI requests are now processed electronically using Adobe Pro.
47. There are many aspects of the estimate in the Department’s submissions to the IC review which in my view, remain conservative, in light of the Department’s current procedures. These include:
47.1. The average of 1 minute per page to “review” the documents in circumstances where it is likely that the actual time it would take to review the documents would be considerably longer. The Department’s procedures with respect to FOI requests set out at paragraph 9 shows a breakdown of the steps that need to occur before the review stage. This includes:
47.1.1. the initial review;
47.1.2. gathering documents;
47.1.3. extracting those documents;
47.1.4. converting the documents to pdf form;
47.1.5. sorting the documents; and
47.1.6. combining the documents.
47.2. The time required to redact the documents is likely to be much higher than the estimated 1 minute per page. I believe many of the documents are likely to be internal Departmental correspondence and therefore contain information concerning the Department’s operations and/or personal information about third parties, such that the conditional exemptions in s 47E and s47F of the FOI Act may apply. The Department’s procedures with respect to FOI requests set out at paragraph 9 show that the redaction process is now linear and involves multiple steps such as:
47.2.1. marking the initial grey scale redactions;
47.2.2. review by the Quality and Assurance process;
47.2.3. further redactions applied;
47.2.4. second review of the redactions (and sometimes third or fourth review);
47.2.5. finalisation of redactions; and
47.2.6. extracting those documents.
47.3. The initial review did not include any of the above steps or time that would be taken by the Quality and Assurance Process to review.
(Footnotes in original)
In relation to FOI 25566, Ms Taylor considers that the estimates provided in the internal review decision made on 11 January 2019 are conservative.[62] In her affidavit of 29 June 2023, Ms Taylor provides details of a sampling exercise conducted in June 2023 based on which she estimates that the total amount of time required to respond to the request made on 20 November 2018 would be in excess of 83 hours:[63]
[62] Ibid 233 [27].
[63] Ibid 233-5.
Sampling exercise in 2023
29. The Department has undertaken a sampling exercise in June 2023. While performing that sampling, the officer completed a Sampling Template. Annexed and marked AT-4 is a copy of that sampling spreadsheet. I am informed the sampling exercise involved the following steps:
29.1. The officer searched the TRIM system using the applicant’s UIN and the TRIM container held by the CLU, limited to the period 12 May 2018 to 16 November 2018. This produced 677 records.
29.2. The officer determined they would sample 34 records. This represents 5% of the content of the records that were displayed. In order to randomise the selection the officer arranged the records in a chronological order and selected every 20th record in that list to sample. I understand that it took the officer approximately 40 minutes to locate, and identify the sampling data.
29.3. The officer did not extract or convert any of the records that were produced. Rather, they opened each of the 34 records individually directly from TRIM. The officer recorded in the sampling template their observations of the complexity of each record. Those notes suggest that of the 34 records sampled the officer considered that:
29.3.1. All 34 records contained at least one email. Each of those emails would need to be converted to a pdf as set out using one of the two methods for conversion detailed in paragraph 9.6 or 9.7.
29.3.2. 16 records comprised of email chains. Each of those emails would need to be separated and carefully examined to determine whether they fall within the scope of the request and therefore should be retained or whether they represent a ‘duplicate’ following the procedure detailed in paragraph 9.
29.3.3. 8 records viewed were deemed ‘complex’ by the officer. I understand this is because the record incorporated both an email and an imbedded email with multiple attached pdf documents that were of significant length. One record, for example, comprised of an email with six pdf documents attached and totalled 142 pages.
29.3.4. At least one record was noted to contain a duplicate page from a record the officer had already viewed when performing the sampling task. That duplicate document would need to be removed from the final bundle of documents.
29.4. The officer recorded the time they spent looking at each record. I am informed that, in total, it took the officer approximately 38 minutes to open all of the 34 records (emails and their attachments). On average, that means the officer spent a little over one minute opening each of the sample records. The officer did not review the documents or perform any redactions of the records.
29.5. It took the officer a total of approximately 40 minutes to briefly examine the records and make notes relating to the sensitivities and complexities in the sampling template relating to the searches.
29.6. In total, the officer spent approximately two hours sampling 5% of the records. Based on the sampling exercise, it is foreseeable that gathering and performing the initial review of 677 records might take about 40 hours.
29.7. In total, the officer viewed 548 pages, from the sample of 34 records. From this sample, on average each record contained about 16 pages. Based on the sampling exercise, it is foreseeable that the 677 records might contain more than 10,832 pages.
29.8. The Department’s current procedures with respect to FOI requests set out at paragraph 9 shows the further steps that would need to occur beyond the initial gathering of documents including extracting, converting, sorting and combining documents. In my view these additional preliminary steps would mean that the estimated average time provided in 2018 of 3 minutes per record to identify relevant material is insufficient. Therefore it is reasonable to anticipate that the total number of hours required to collate and sort the documents would increase.
29.9. The Department’s current procedures with respect to FOI requests set out at paragraph 9 shows the further analytical steps that would need to occur which includes checking the bundle of documents, applying redactions and obtaining a review from the Quality and Assurance Process. In my view these further steps mean that the estimated average time provided in 2018 of 1.5 minutes per record to scan each document and 1 minute to apply redactions per record is insufficient. Therefore it is reasonable to anticipate that the total number of hours required to do the analysis and prepare the documents would increase.
29.10. Finally, the Department’s current procedures with respect to FOI requests set out at paragraph 9 show that the FOI officer would be required to draft a Statement of Reasons and to prepare the schedule of documents. In my view, in light of the number of records identified during the sampling, it could take an officer two days, or 15 hours, to draft this Statement of Reasons and prepare the schedule of documents in light of the number of documents that would have to be reviewed and the analysis that would have to be applied to assess any applicable exemptions under the FOI Act.
29.11. In summary, in light of the additional sampling exercise that has been performed I am of the view that the initial estimate of 70 hours of processing time contained in the reviewable decision is a conservative estimate. Based on my knowledge of the Department’s current procedures with respect to FOI requests, and from the estimates obtained from the further sampling, I am of the view that the total amount of time required to respond to this request would be in excess of 83 hours.
Consideration of requests in FOI 21820 and FOI 25566
It is my view that Ms Taylor gave very considered evidence about the work involved in processing the requests made by the Applicant in FOI 21820 and FOI 25566. Ms Taylor reviewed the work done by the Department to identify records relevant to the Applicant’s requests and to estimate the amount of time it would take to process those requests. Ms Taylor explained why she considered the Department’s estimates to be conservative. Her analysis was very thorough and survived a challenge on cross examination.
Ms Taylor was cross examined but she maintained her evidence that the Department does not maintain one document management system that can be simply searched, but rather, there were numerous information management systems that needed to be searched.
Ms Taylor deposed in her affidavits dated 28 and 29 June 2023 that in February 2022 the Department’s Information Access Unit (IAU) was established to process FOI requests across the Department. The Department has dedicated staff in the IAU who process a very high volume of requests for documents under the FOI Act.[64] It is in this context that Ms Taylor provides her view that the work involved in processing the Applicant’s requests (FOI 21820 and FOI 25566) would divert the resources of the Department from its other operations. In my view, the evidence establishes that this diversion of resources is both substantial and unreasonable and that therefore a practical refusal reason exists under s 24 of the FOI Act.
[64] Ibid tab 8 214 [49], tab 9 236 [31].
The Applicant relied on paragraph 3.113 of the FOI Guidelines which says that where there is a significant public interest in the disclosure of the information in the documents, and/or where an individual has been significantly affected by decisions of government, the agency may find it difficult to justify that a practical refusal decision exists on the basis that processing the request would have an unreasonable effect on the agency even where the FOI processing burden is substantial. For the reasons that follow, there is no significant public interest in the disclosure of the information in the documents and the Applicant has not shown that he has been significantly affected by decisions of government.
FOI 21820
I accept Ms Taylor’s evidence that the Department holds a significant volume of information regarding the Applicant and that the information is held in a number of different information systems. Most of this information is of a personal nature over a long period
The Applicant himself acknowledged his extensive association with the Department over many years involving ‘claims with DVA going back to the mid 1980’s’.[65]
[65] Ibid tab 1, 134.
I accept the ‘current analysis’ provided by Ms Taylor in her affidavit of 29 June 2023 which provides an estimate of at least 402 hours to process Applicant’s request. This represents a very substantial amount of work.
Relevant to the question of reasonableness is the personal nature of much of the information which relates to:[66]
your various interactions with the Department including files containing documents relevant to your DRCA (formerly SRCA) claim, your VEA client files, your VRB file and a file relating to your requests under Freedom of Information legislation.
[66] Ibid tab 1, 37.
Further, much of this information is contained in email communications to and from the Applicant to which he already has access. This personal information is not of public interest. It is also relevant that the Applicant’s request is so broad and that despite very sensible attempts by the Department to encourage a narrowing of the request, the Applicant said in May 2018 that ‘I want everything the department has on me’.[67] The Applicant has not established that this broad request relates to a particular decision of government that may have affected him. It is also noteworthy that the Applicant did make a narrower request for access to documents in November 2018 (FOI 25566), but that he maintained his earlier broader request until the fourth and final day of the hearing when he offered during his closing address to restrict the request to a period from 7 May 2012 because at that time the Department had provided him with a copy of his file up to that date. This concession was both too little and too late.
[67] Ibid 36.
I conclude in relation to FOI 21820 that the work involved in processing the Applicant’s request would substantially and unreasonably divert the resources of the Department from its other operations.
FOI 25566
This request relates to a period of about six months from May to November 2018, but it includes a significant amount of communication. The Department’s initial estimate made in December 2018 and January 2019 was a processing time of almost 70 hours; however, after a sampling exercise in June 2023 it was estimated that there may be more than 10,832 pages of documents and the time estimate was revised to be in excess of 83 hours. I accept that revised estimate which I would describe as being a substantial amount of hours.
Ms Taylor explains in her affidavit of 29 June 2023 how the work involved in processing this request would divert the resources of the Department because it would take one full time person more than two weeks. Ms Taylor concludes that this would be a significant and unreasonable diversion of the Department’s resources given the number of other requests for information that are being handled and which would have to be deferred if this work were carried out.[68]
[68] Ibid tab 9, 236 [33].
Ms Taylor provides the context for the Applicant’s request as follows:[69]
[69] Ibid 229-30.
12. As of 20 November 2018, when this request was received, the applicant was a Client Liaison Unit (CLU) client of the Department. This meant that he was required to only communicate with the Department in writing and that communication was to be directed to the CLU team. Clients were referred to the CLU if they were deemed to engage in the Department’s Unreasonable Complaint Conduct. This included sending excessive correspondence, complaints and unreasonable persistent contact. When considering the appropriateness of a client’s interactions with Department staff, the CLU had reference to the following documents:
12.1. The Department’s Unreasonable Complaint Conduct Policy;
12.2. The Commonwealth Ombudsman’s ‘Managing Unreasonable Complainant Conduct’ Practice Manual’; and
12.3. The Department Incident Risk Management Policy
13. On around 12 February 2018 the applicant was placed on contact restrictions. A review occurred in May 2018 of his contact restrictions and a decision was made to continue to restrict the applicant’s contact with the Department to be via the CLU. Annexed and marked AT-2 is a copy of the Department’s letter to the applicant dated 25 May 2018 confirming that position. It records that:
Despite requests that you reduce the amount of correspondence and the number of FOIs sent to the Department (sent to you on 1 March 2018 and 9 March 2018 respectively), you have emailed 79 times and made 32 FOI requests. This type of persistent contact is an unreasonable diversion of DVA’s resources. Furthermore, the tone of some of your emails is rude and insulting, including referring to DVA staff as “idiots” and incompetent. DVA considers this type of abuse of DVA staff unacceptable behaviour.
14. On 20 November 2018 the applicant was advised that the CLU had conducted a review of his interactions with the Department over the period from May 2018 to November 2018 in relation to the Department’s Unreasonable Complainant Conduct Policy and determined that:
In light of the review, no further contact restrictions have been recommended at this time, however the CLU will remain in place as your primary point of contact for a further six months. A further review will take place by the end of May 2019 to consider whether your restrictions will be maintained or modified and you will be notified of the outcome.
The Applicant says he should be provided access to the requested documents because he intends to make an act of grace claim in relation to the CLU restrictions which he considers were unreasonable. The Applicant submits that the decision to place him on contact restrictions is relevant to the question of reasonableness in s 24AA(1)(a)(i) because it was a decision which significantly affected him.[70]
[70] FOI Guidelines (n 20) 3.113.
As to the significance of the decision to place him on contact restrictions, I note that it did not prevent the Applicant from contacting the Department but merely required contact to be in writing directed to the CLU team. I do not consider that the Applicant was significantly affected by such a decision. Further, the decision appears to be justified by the excessive and often abusive correspondence from the Applicant which was referred to in the Department’s letter dated 25 May 2018. The Applicant denies being abusive and mistakenly relies upon an apology made by the Department on 2 July 2020 which expressly relates to ‘a review of the contact restrictions which were applied by the Department of Veterans’ Affairs to you in 2017’.[71] I find that there was no apology for the contact restrictions imposed in 2018 and that they were justified due to the Applicant’s conduct.
[71] Tribunal Book tab 22, 344.
I also reject the Applicant’s submission that there is a significant public interest in the disclosure of the information in the documents. In my view there is no such interest because the documents relate to the personal affairs of the Applicant and his particular conduct considered to be unreasonable by the Department.
I conclude in relation to FOI 25566 that I agree with the opinion of Ms Taylor expressed at paragraph 33 of her affidavit that the work involved in processing the Applicant’s request would substantially and unreasonably divert the resources of the Department from its other operations.
Decision in FOI 21820 and FOI 25566
The Tribunal affirms the decisions by the Department to refuse the Applicant’s requests under s 24(1) of the FOI Act.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
.................[sgd].......................................................
Associate
Dated: 23 June 2025
Dates of hearing: 26 March, 9 and 30 April, and 1 May 2025 Applicants’ Representative Self-represented Respondent’s Representative: Australian Government Solicitor Respondent’s Counsel Ms Verity Long-Droppert
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