Urquhart; Chief Executive Officer, Services Australia and (Freedom of Information)
[2021] AATA 1407
•19 May 2021
Urquhart; Chief Executive Officer, Services Australia and (Freedom of Information) [2021] AATA 1407 (19 May 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/4452
Re:Chief Executive Officer, Services Australia
APPLICANT
AndAndrew Urquhart
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:19 May 2021
Place:Brisbane
The Tribunal sets aside the decision under review and substitutes it with a decision that a practical refusal reason exists with respect to the Respondent's revised freedom of information request, on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the Applicant from its other operations.
...............[SGD]................
Member D K Grigg
CATCHWORDS
FREEDOM OF INFORMATION – whether practical refusal reason exists in accordance with section 24(1) of the Freedom of Information Act 1982 (Cth) – whether request consultation process engaged in pursuant to section 24AB of the Freedom of Information Act 1982 (Cth) - decision under review set aside
LEGISLATION
Freedom of Information Act 1982 (Cth)
CASES
Chief Executive Officer, Services Australia and Paul Farrell [2020] AATA 2390
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995
'FF' and Australian Taxation Office [2015] AICmr 25 Department [2015] AICmr 20
Gurjit Singh and Attorney-General’s Department [2015] AICmr 20
‘JH’ and Australian Securities and Investments Commission [2016] AICmr 55
Paul Farrell and Prime Minister of Australia (Freedom of information) [2017] AICmr 44
Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762
‘RW’ and Services Australia [2020] AICmr 12
Tate and Director, Australian War Memorial [2015] AATA 107
VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A, Freedom of Information Act 1982 (Cth)
Table of Contents
Background
FOI Act - LEGAL PRINCIPLES
ISSUE FOR THE TRIBUNAL
CONTENTIONS & EVIDENCE
Conclusion
DECISION
REASONS FOR DECISION
Member D K Grigg
19 May 2021
BACKGROUND
On 16 July 2018 the Respondent, Mr Andrew Urquhart, made a request pursuant to section 15 of the Freedom of Information Act 1982 (the FOI Act) to access the following documents from the Applicant:[1]
“…a COMPLETE copy of any and all records held by the Department of Human Services”
[1] Exhibit 1, T Documents, T3, page 19, Email to Applicant regarding FOI Request.
Among other things Mr Urquhart has been a recipient of various Centrelink payments including disability support payments.
Pursuant to section 24(1) of the FOI Act the Applicant can refuse to process a freedom of information request if a “practical refusal reason” exists.
On 17 July 2018, the Applicant acknowledged Mr Urquhart’s request but advised that his request gave rise to two practical refusal reasons, namely:[2]
·[The request] “it does not provide such information as is reasonably necessary to enable the department to identify the documents that you seek; and
·To the extent that some of the documents you have requested may be identifiable, to process your request is likely to result in a substantial and unreasonable diversion of the resources of the department if it were processed.”
[2] Exhibit 1, T Documents, T4 pages 20 - 21 Email to Respondent Acknowledging FOI Request; T5 page 22 – 23, Letter to Respondent regarding FOI Request.
The Applicant explained to Mr Urquhart that:[3]
·his request, in particular his use of the words “any and all records” was unclear add did not enable it to identify the documents he was seeking access to; and
·as the request is so broad, and not limited to a person, timeframe, or record type, “the search and retrieval process to identify such documents would substantially and unreasonably divert the resources of the department as several records and databases would need to be searched”.
[3] Exhibit 1, T Documents, T5, pages 24 – 26, Email to Respondent regarding FOI Request.
The Applicant informed Mr Urquhart that he had 14 days to withdraw or amend his request.
Mr Urquhart clarified his request as follows (“Revised Request”):[4]
“I am seeking a complete copy of any records held by the Department of Human Services about myself, Mr Andrew Stephen Urquhart. I am entitled to receive a copy of any personal records you hold about me, and expect you to provide these records without further delay.”
[4] Exhibit 1, T Documents, T6, page 27, Email to Respondent regarding Formal Consultation.
In response to Mr Urquhart’s Revised Request, the Applicant advised Mr Urquhart that it still considered his request to be unclear. The Applicant informed Mr Urquhart that pursuant to section 15(2)(b) of the FOI Act, an access request must “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”.
The Applicant explained to Mr Urquhart that the reason the Revised Request was unclear was as follows:[5]
“It is unclear what you mean when you say that you seek ‘any records’ the department holds about yourself. It could be that you seek records from the Centrelink, Medicare or Child Support programmes, or any other record that the department may hold. The department is unable to make the subjective, individual assessments required by your request in order to determine what documents you mean to refer to when you refer to ‘any records’ and whether or not the documentation is to include information about you”[5] Exhibit 1, T Documents, T7, page 29, Email to Respondent FOI Request Formal Consultation Attachment E
The Applicant sought further clarification from Mr Urquhart:[6]
“You may like to consider the department’s suggestions in our letter dated 17 July 2018 if you wish to make a further revised request. You may also like to consider the following:
1. Are you requesting documents from your Centrelink record only;
2. what is the date range for your request;
3. what payment type does your request relate to e.g. Disability Support Pension, Newstart, Carers etc.; and/or
4. what type of documents do you require e.g. Centrelink online document recordings (file notes), documents/forms submitted, documents in relation to a review, medical reports, debt documents etc.”[6]Ibid.
The Applicant reminded Mr Urquhart that the formal consultation period would end on 1 August 2018 if he did not provide a further revised request.
Mr Urquhart provided a further revised request on 29 July 2018 as follows (“Mr Urquhart’s FOI Request”):[7]
“I will restrict my request at this stage to the following (and will file subsequent requests for any further information based on what may be required by me but you fail to provide):-
1. I will limit my request at this stage to just my Centrelink records.
2. I will limit my request to the time period from the date of my original request to a period ten (10) years prior (i.e., 16/07/2008)
3. I will confirm that I require a copy of ALL records held by Centrelink for this time period, including (but not limited to) all computer records, payment records, file notes, online records, documents submitted, documents (including correspondence) sent and received, all records of correspondence with third party providers (e.g. The Department of Employment, Job Service Providers, The Administrate Appeals Tribunal, medical professionals, etc), all internal review documents, debt notices, and any other documents and records held by Centrelink.
4. I will confirm that this relates to any and all payment types provided by Centrelink including (but not limited to) Newstart, Disability Support Pension and Austudy
5. If any documents are withheld I will require written confirmation of the reasons why these documents were withheld (and confirm that I will likely be disputing any decisions to withhold any documents)”
[7] Exhibit 1, T Documents, T8, page 30, Email to Respondent FOI Request Formal Consultation Attachment F.
On 9 August 2018, the Applicant advised Mr Urquhart that it still considered Mr Urquhart’s FOI Request gave rise to a “practical refusal reason” because it would substantially and unreasonably divert the resources of the agency to process and requested that he considered revising his request.[8] The Applicant explained that:[9]
(a)it would have to do extensive searches to search for, identify and retrieve the documents he was seeking;
(b)investigations undertaken had indicated more than 500 documents (>1000 pages) may fall within the scope of Mr Urquhart’s request; and
(c)it would take approximately 50 hours to process his request.
[8] Exhibit 1, T Documents, T12, pages 55 – 56, Email to Respondent regarding FOI Request Attachment G.
[9] Ibid 57 – 58.
Mr Urquhart was given 14 days to respond.
Mr Urquhart confirmed that he would not revise his FOI Request and requested it be processed.[10]
[10] Exhibit 1, T Documents, T13, page 60, Email to Respondent regarding Formal Consultation Attachment H.
On 16 August 2018, the Applicant decided to refuse Mr Urquhart’s FOI Request under section 24(1) of the FOI Act on the ground that a “practical refusal reason” exists under section 24AA(1)(a)(i) of the FOI Act in that the work involved in processing his request would substantially and unreasonably divert the resources of the Applicant from its other operations (“Applicant’s Decision”).[11]
[11] Exhibit 1, T Documents, T15, pages 71 – 78, Letter to Respondent regarding FOI Request Attachment I.
Mr Urquhart sought internal review of the Applicant’s Decision and subsequently a review by the Office of the Information Commissioner (“IC”).[12]
[12] Exhibit 1, T Documents, T16, pages 80 – 84, Email from Respondent regarding Dispute Resolution Request,
The Applicant conducted further assessments of how long it would take to process Mr Urquhart’s FOI Request and advised the IC that it would take approximately 180 hours (the equivalent of more than four and a half weeks of one staff member).[13]
[13] Exhibit 1, T Documents, T19-T20, pages 111 – 132, Email Chain between FOI employees regarding SPOC Consultation for OAIC Review.
On 26 June 2020, the IC’s delegate set aside the Applicant’s decision and ordered the Applicant to process Mr Urquhart’s FOI Request pursuant to section 55K of the FOI Act.[14]
[14] Exhibit 1, T Documents, T2, 8 – 19, OAIC S55K Decision.
Following the IC decision, the Applicant conducted a sample review of how long it would take to comply with the decision. Based on a sample size of 10% the Applicant determined that it would take approximately 180 hours to process the request.[15] This included the time required to search and retrieve the documents and the time needed to consider and decide on each documents release or exemption status.
[15] Exhibit 1, T Documents, T22 - T25, pages 136 – 147, Email Chain Between Parties, Charges Estimate and Time Estimate; T27-T28, pages149-608, Sample of Documents including Time Estimate.
On 23 July 2020, the Applicant applied to the Tribunal for a review pursuant to section 57A of the FOI Act.[16] The Applicant also applied for a stay of the IC decision pending final review by the Tribunal. The Respondent indicated to the Tribunal that he opposed the stay application.
[16] Exhibit 1, T Documents, T1, pages 1 – 7, Application for Review by the AAT.
On 7 September 2020, as part of the preparation for the review by the Tribunal the Applicant, in accordance with its obligations under section 37 of the AAT, lodged documents relevant to the review (the “T Documents”).
The stay hearing was listed for hearing on 9 September 2020. The Respondent failed to appear at the stay hearing and it was adjourned. The Tribunal attempted unsuccessfully to contact the Respondent. The Tribunal sent requests by email and post to the Respondent requesting up to date contact information. On 23 September 2020, the Tribunal notified the Respondent by email and by post that if he did not respond within 7 days that the interlocutory hearing for the stay would proceed in his absence. An interim stay order was granted in the meantime.
The Respondent was notified again that stay application proceeding would proceed without him on 15 October 2021 and he was requested to contact the Tribunal urgently if he wished to be heard on the application. On 14 October 2020, a Tribunal officer telephoned the recorded contact number for Mr Urquhart but the person who answered said he was not Mr Urquhart.
The Respondent made no contact with the Tribunal and the stay hearing proceeded in his absence. A stay order was made on 15 October 2021. The Tribunal issued directions that the Applicant provide a proposed timetable to progress the matter to hearing to the Respondent and the Tribunal on or before 23 October 2020. A directions hearing was then listed for 30 October 2020. The Respondent appeared at the directions hearing by telephone and it was agreed that the parties would participate in a conciliation in the week commencing 16 November 2020 or as soon as possible thereafter.
The conciliation conference was then vacated on 13 November 2020 at the request of the Applicant due to a lack of contact from the Respondent and the Tribunal made the following directions:
1.On or before 23 December 2020, the Applicant must file and serve all evidence it intends to rely on and its Statement of Facts, Issues and Contentions;
2.On or before 21 January 2021, the Respondent must file and serve all evidence it intends to rely on and its Statement of Facts, Issues and Contentions;
3.On or before 4 February 2021, the Applicant must file and serve any evidence in reply and any amended Statement of Facts, Issues and Contentions; and
4. The parties file hearing certificates by 12 February 2021.
Nothing was filed in the Tribunal by the Respondent and a follow up email was sent on 1 February 2021 to the Respondent to advise that the Tribunal would assume that he had no material to be filed. On 2 March 2021, an email was sent to the Respondent to advise that the matter had been listed for hearing on 20 April 2021 and that it would proceed in his absence if no contact from him was received by the Tribunal.
The Tribunal had no contact from the Respondent after 30 October 2020.
At the commencement of the hearing two attempts were made to contact the Respondent on the last known telephone number but there was no answer. The hearing proceeded in the Respondent’s absence.
FOI ACT - LEGAL PRINCIPLES
Subject to certain exceptions, a person has a right of access to the documents of an agency, such as the Applicant, unless the document is an “exempt document” as defined under section 11, FOI Act. An agency may also refuse to give access to a document if a “practical refusal reason” exists pursuant to section 24 of the FOI Act.
Practical Refusal Reason
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.
(2) For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is substantially the same.
“Practical refusal reason” is defined in section 24AA of the FOI Act relevantly as follows:
(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…
(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.
(emphasis added)
In the event that an agency considers a practical refusal reason exists, the agency must, before refusing access, undertake a request consultation process (see section 24(1)(a)). If, following the request consultation process the agency still considers a practical refusal reason exists, it may then refuse to give access to the documents requested (s 24(1)(b).
The Applicant referred the Tribunal to the Information Commissioners FOI Guidelines for guidance. The Guidelines were issued by the Australian Information Commissioner under s 93A of the FOI Act.[17] Pursuant to section 93A(2) Australian Government ministers and agencies must have regard to the Guidelines when performing a function or exercising a power under the FOI Act.
[17] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982.
The Guidelines explains the purpose of the practical refusal reason exception as follows:[18]
The evident purpose of this practical refusal ground is to ensure that the capacity of agencies and ministers to discharge their normal functions is not undermined by processing FOI requests that are unreasonably burdensome.
[18] Ibid paragraph 3.115.
The Guidelines also set out matters that may be relevant in deciding if a practical refusal reason exists include:[19]
• the staffing resources available to an agency or minister for FOI processing
• whether the processing work requires the specialist attention of a minister or senior officer, or can only be undertaken by one or more specialist officers in an agency who have competing responsibilities
• the impact that processing a request may have on other work in an agency or minister’s office, including FOI processing
• whether an applicant has cooperated in framing a request to reduce the processing workload
• whether there is a significant public interest in the documents requested
• other steps taken by an agency or minister to publish information of the kind requested by an applicant
• as to a request to a minister — other responsibilities of the minister and demands on the minister’s time, and whether it is open to the minister to obtain assistance from an agency in processing the request.
[19]Ibid, 3.117.
The Guidelines referred to the following examples where the IC and Tribunal has held that a practical refusal reason exists:[20]
·Tate and Director, Australian War Memorial [2015] AATA 107 - estimate of 150 hours to process request of 1003 pages; small agency with one staff member available as a Freedom of Information resource and assigning staff from other areas of the agency to assist with processing the request would effectively mean that resources would be diverted from important priority operations and projects);
·‘FF’ and Australian Taxation Office [2015] AICmr 25 (estimate of 94.16 hours to process request of approximately 6500 pages);
·Gurjit Singh and Attorney-General’s Department [2015] AICmr 20 (estimate of 74 hours to process a request of 1800 pages;
[20] Ibid page 28
The Guidelines also refer to examples where the IC and Tribunal has held that a practical refusal reason does not exist:[21]
·Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 - estimate of 228–630 hours to process request for the Attorney-General’s diary was found to be unrealistic, as there was no rational basis upon which it could appear that every person named in the diary might reasonably wish to make an exemption contention for the purposes of consultation under ss 27 and 27A);
·‘JH’ and Australian Securities and Investments Commission [2016] AICmr 55 (where the agency is willing to process a separate, but identical request in exchange for a charge, they would not be able to continue to claim that a practical refusal reason exists);
·Paul Farrell and Prime Minister of Australia (Freedom of information) [2017] AICmr 44 (where it was not established that the documents were sufficiently complex or voluminous to justify the existence of a practical refusal reason
[21] Ibid
Request Consultation Process
A “request consultation process” is defined in section 24AB of the FOI Act as follows:
(1) This section sets out what is a request consultation processfor the purposes of section 24.
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;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person ) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
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.
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
…
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
For a practical refusal reason to exist there are a number of requirements that must be satisfied:
(a)The work involved in processing the request must substantially and unreasonably divert the resources of the agency from its other operations: s 24AA(1(a)(i);
(b)The agency must have regard to the resources that would have to be used for identifying, locating, or collating the documents within the filing system of the agency, or the office of the Minister.
(c)The agency must engage in a request consultation process with the FOI applicant; and
(d)The request consultation process must involve:
(i)The agency giving the FOI 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;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person ) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
(e)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, including by:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
What is meant by substantially and unreasonably? These terms are not defined in the FOI Act and are therefore to be given their ordinary meaning. The Tribunal notes that they are two separate requirements. According to the Guidelines, in some circumstances a request may be substantial but not unreasonable.[22]
[22] Ibid paragraph 3.112
The Tribunal has considered the meaning of these terms in the decision of Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762, AAT where Deputy President Forgie stated that:
[113] It is inherent in the ordinary meaning of the word ‘unreasonable’ that all relevant considerations must be weighed… It is also relevant to have regard to information that is available to an applicant through other means
…
[115] … it seems to me that the work involved in processing a request will only substantially and unreasonably divert the resources of an agency if the work is real or of substance and not insubstantial or nominal and if it is unreasonable having regard to factors, such as workload.
The interpretation in Langer has subsequently been affirmed and applied by the Tribunal.[23]
[23] E.g. Chief Executive Officer, Services Australia and Farrell (Freedom of information) [2020] AATA 2390 (21 July 2020) at [51].
In VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619 the Tribunal found that:
[101] What constitutes valid practical refusal grounds is … agency specific and resource dependent.
The estimated amount of time to process the request has been found to be a relevant consideration when deciding whether a practical refusal reason exists.[24]
[24] ‘JC’ and Department of Health [2016] AICmr 47.
ISSUE FOR THE TRIBUNAL
The issue before the Tribunal is whether:
a. practical refusal reason exists to refuse Mr Urquhart access to the requested documents pursuant to section 24(1)(b) of the FOI Act;
b. the Applicant undertook a request consultation process as per section 24AB of the FOI Act.
CONTENTIONS & EVIDENCE
The Applicant contends that a practical refusal reason does exist to refuse Mr Urquhart access to the requested documents pursuant to section 24(1)(b) of the FOI Act on the basis that it would substantially and unreasonably divert the resources of the agency from its other operations.[25]
[25] Exhibit 2, Applicants Statement of Facts, Issues and Contentions dated 23 December 2020, paragraphs 10, 18, 21, 22, 31, 73.
To support its contention the Applicant provided two affidavits from Louis Hamilton and James Pratt. This is in accordance with the Guideline recommendations that:[26]
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.
Evidence of Ms Hamilton
[26] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, para 3.121
Ms Hamilton has been employed by the Applicant for 27 years and for the last five years has been employed as the National Manager for the Smart Centres East Branch, which is responsible for 7 Smart Centres, has Smart Centres' portfolio responsibility for Older Australians, Carers, Disability, Complex Assessment and Aged Care, and is also responsible for the division's Service Quality and supporting Service Delivery Excellence Essentials.[27] As part of her role as National Manager for the Smart Centres East Branch, she is the National Manager for the Smart Centres Freedom of Information Search and Retrieval Team (Smart Centres FOI Team), which is a small, specialised team which retrieves information for requests for access to documents under the FOI Act received from FOI Officers in the Legal Services Division of the Applicant. Ms Hamilton was asked by the Applicant to provide her opinion of the likely search and retrieval time to comply with Mr Urquhart’s FOI request.[28]
[27] Exhibit 3, Affidavit of Ms Hamilton dated 23 December 2020, paragraph 3.
[28] Ibid 4 – 5.
In her affidavit Ms Hamilton set out the process that would be involved in locating and retrieving documents that met with Mr Urquhart’s request in detail. In summary her evidence is that :
·the Applicant holds approximately 3,581 pages of documents and 17 minutes of telephone call recordings that are responsive to the Respondent’s FOI Request;[29]
·it would take approximately 27.45 hours to search for, retrieve and compile these materials;[30]
·The search and retrieval team compiled a 10% (i.e., 358 page) sample of those documents identified as falling within the scope of the Respondent’s FOI Request from various files and databases to assist the FOI legal team to estimate document reviewing and redacting time;[31]
·it took 4 hours and 40 minutes to search for, retrieve and compile the 10% document sample.[32]
·the documents sought by the Respondent are located across (and would have to search for and retrieved from) 10 separate databases/files: Customer Paper File, Verint, Process Direct, Customer Archive Retrieval, Archiving and Culling Engine, Scanned Documents, Online Interactions, Customer Record, Customer First and Customer Incident Management System[33]
·as a result of documents being located across numerous databases, there may also be unnecessary duplication of documents[34]
·if the Applicant were required to process the Respondent’s FOI request, this is likely to materially impact the search and retrieval team’s capacity to carry out its functions and meet statutory deadlines in respect of other FOI requests.[35]
·given the structure of the FOI team, processing the Respondent’s FOI Request may have broader consequences for the Applicant’s ability to carry out its core function, namely processing social security benefits for Australians as employees from other areas may need to be utilised to keep up with commitments.[36]
Evidence of Mr Pratt
[29] Ibid 26.
[30] Ibid.
[31] Ibid 34(a).
[32] Ibid 34(c)
[33] Ibid 31.
[34] Ibid 31.
[35] Ibid 32.
[36] Ibid 44.
Mr James Pratt is a solicitor seconded to the Applicant in the Freedom of Information team within the Legal Services Division of the Applicant. The FOI Legal Team is responsible for processing FOI requests made to agencies like Centrelink. As part of his role Mr Pratt processes FOI requests, makes submissions to the IC and is involved in FOI litigation matters. During his secondment Mr Pratt has been involved in 160 FOI requests and is familiar with what is involved from the agency’s perspective.
Mr Pratt was asked by the Applicant to provide an estimate of the time it would take to process Mr Urquhart’s FOI Request. In order to form his opinion Mr Pratt had regard to:
“In preparing this affidavit, I have reviewed and considered the following documents, which are annexed to this affidavit at JP-1:
(a) "Significant FOI request - Time Estimate Request", which sets out the search and retrieval team's estimate of the number of pages of documents that fall within the scope of the Final Revised Request and the time that would be required to search for, retrieve and collate these (T24 );
(b) "FOi Charges Estimate", which sets out the time that would be required to undertake various steps to process the Final Revised Request {T25);
(c) "Document Calculator- LEX 40032", which sets out calculations for the time that would be required to search for, retrieve, review and redact those documents that fall within the scope of the Final Revised Request (T26); and
(d) A 358-page (10%) sample of those documents identified as falling within the scope of the Final Revised Request, which has been reviewed and marked by a member of the FOi Legal Team (T28).”
Mr Pratt’s evidence is that it would take approximately 118.51 hours to process the Respondent's revised request, comprising:[37]
·27.45 hours to search for, retrieve and compile the relevant documents and call recordings (relying on the Hamilton affidavit);
·68.64 hours to review, edit and redact the relevant documents;
·1.42 hours to review, edit and redact the identified call recordings;
·2 hours to consult with third parties;
·19 hours to prepare the notice of decision, which includes preparing the schedule of documents.
[37] Exhibit 4, Affidavit of James Pratt dated 23 December 2020, page 5, paragraph 12.
Mr Pratt says that if the Applicant were required to process the Respondent’s FOI Request, this is likely to materially impact the FOI Legal Team’s capacity to carry out its functions and meet statutory deadlines in respect of other requests under the FOI Act.
CONSIDERATION
The unchallenged evidence submitted by the Applicant demonstrates that it would take one full-time FOI employee more than 3 weeks (>118 hours) to process Mr Urquhart’s request. The Applicant on average only takes 2.8 days to process a request[38], which is significantly less that the time that would be required to process Mr Urquhart’s FOI Request.
[38] Exhibit 2, Applicant Statement of Facts, Issues and Contentions dated 23 December 2020, page 11, paragraph 52.
There is nothing before the Tribunal to cause it any concern that Ms Hamilton and Mr Pratt have provided anything other than an accurate and reasonable estimate of the total processing time.
The Applicant points out that the sample task engaged in by Ms Hamilton is recommended by the Guidelines. The Guidelines recommended that a sample of documents be taken 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” and that [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”.[39]
[39] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, paragraph 3.121
The Applicant points out that the conclusions made by Ms Hamilton and Mr Pratt are consistent with findings made by the IC in other matters that:
·an estimate of two hours to consult a single third party was reasonable (this was adopted by the Applicant as reflective of the amount of time it will take to consult with a third party for the purpose of the revised request);[40]
·an estimate of 28 hours for scheduling 5,046 pages and providing a statement of reasons was reasonable;[41]
·an estimate of 7 hours for scheduling 1,300 pages and providing a statement of reasons was reasonable;[42] and
·an estimate of 44.17 hours for scheduling 8,203 pages and providing a statement of reasons was reasonable.[43]
[40] ‘RW’ and Services Australia [2020] AICmr 12
[41] ‘EU’ and Department of Human Services [2015] AICmr 15
[42] ‘DC’ and Department of Human Services [2014] AICmr 6
[43] ‘RW’ and Services Australia [2020] AICmr 12
The Tribunal considers that more than three weeks to process the request is substantial and would divert the resources of the Applicant.
The next issue is whether the request is unreasonable in the circumstances.
In Chief Executive Officer, Services Australia and Paul Farrell [2020] AATA 2390 (“Farrell”) the Tribunal found that to process the FOI request would involve substantial resources where the processing time would have been approximately half of that estimated in this matter. The Tribunal in Farrell held, that despite the substantial nature of the request, it was not unreasonable on the specific facts of that case for public interest reasons.
Whether processing a request would be unreasonable is a question of fact and degree in the circumstances involved keeping in mind the balance between the parties’ respective interests.[44]
[44] Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information); Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, paragraph 3.119
In this case the Applicant is a large organisation with sufficient resources at its disposal. However, it is clear from the evidence that processing the request would divert the Applicant from its other important work.
A relevant factor is that Mr Urquhart did not appear to be particularly flexible in further limiting his request as part of the consultation process. Mr Urquhart’s first request was for “any and all records” held by the agency whether they related to him or not. He then slightly narrowed his request to documents relating to himself with the only limitation being documents held over a ten-year period. This Revised Request was still very broad. The Applicant referred the Tribunal to the Guidelines which state that a broadly worded request is more likely to constitute an unreasonable diversion of resources than a request that is narrowly focused.
Mr Urquhart’s willingness to engage with the Applicant was limited. In a similar matter of ‘RW’ and Services Australia [2020] AICmr 12, the FOI applicant requested “3000 documents held by your Agency as relevant to my Centrelink related activities” and “to forward all documents on my file”. The IC held (at [82]):
the request is for all documents on the applicant’s file. While the applicant indicated a willingness to reduce the scope of the request during the course of the IC review, I consider that the applicant has taken limited steps to reduce the scope such that a practical refusal reason ceased to exist. In circumstances where the request is substantial, these considerations go to the issue of the unreasonableness of the processing burden on Services Australia.
A further relevant factor is that Mr Urquhart has shown no interest in pursuing his request for over 6 months. The Tribunal is not even aware of whether Mr Urquhart would continue to press his application as this time. There appears to be no interest, or at least no urgency, on Mr Urquhart’s behalf.
Finally, there is no indication that there is significant public interest in the documents being requested and the category of documents requested appear to relate to his own personal affairs. The Guidelines suggest that a practical refusal may not be justified in circumstances where there is evidence of “significant public interest value in the disclosure” of the requested material or where a person has been “significantly personally affected by decisions of government”.[45] There is no evidence of “significant public interest value in the disclosure of the information contained in the documents” here. Mr Urquhart made reference in the letter of 9 August 2018 to his anticipation of being notified of a Centrelink “robodebt”, however, there is no other information before the Tribunal to assess whether Centrelink did determine Mr Urquhart owed it money, whether that debt formed part of the robodebt scheme or whether he was otherwise “significantly personally affected by decisions of government”.[46]
[45] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, paragraph 3.113
[46] Exhibit 1, T Documents, T13, pages 60 – 61, Email from Respondent regarding Formal Consultation dated 9 August 2018.
In light of the above the Tribunal finds that the request would involve a substantial and unreasonable diversion of resources and that the practical refusal ground exists.
Did the Applicant engage in the required section 24AB consultation process with Mr Urquhart?
The Applicant engaged in the required section 24AB consultation process with Mr Urquhart as follows:
(a)The letter of 17 July 2018 (the first section 24AB letter); and
(b)The letter of 9 August 2018 (he second section 24AB letter).
Both of the 24AB letters:
(c)were in writing as required by section 24AB(2)
(d)provided the name of a contract person for Mr Urquhart to liaise with; and
(e)advised Mr Urquhart of his 14-day time period within to respond;
The 24AB letters demonstrate that the Applicant took reasonable steps to assist Mr Urquhart to revise his request including suggesting that he:
·specifying/limiting the date range of the documents requested (e.g., to a one or two year period); and
·describe the category of documents requested (e.g., Centrelink file notes)
The Tribunal finds that the Applicant complied with the statutory consultation requirements.
CONCLUSION
In light of the above the Tribunal finds that the request would involve a substantial and unreasonable diversion of resources and that the practical refusal ground exists.
DECISION
The Tribunal sets aside the decision under review and substitutes it with a decision that a practical refusal reason exists with respect to the Respondent's FOI Request, on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the Applicant from its other operations.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.............................[SGD]...................................
Associate
Dated: 19 May 2021
Date reserved:
20 April 2021
Advocate for the Applicant:
Mr Damien Carroll (by videoconference)
Solicitors for the Applicant:
King & Wood Mallesons
Applicant:
No appearance
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