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d d d O ICIA
OSI reference: FOI24/18; ACON24/47
1 November 2024
Mr James Smith
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request FOI24/18 – Request consultation
The purpose of this letter is to seek information from you about your request for access to documents under
the
Freedom of Information Act 1982 (FOI Act) which you submitted to the Office of the Special Investigator
(OSI).
Background
Al correspondence for this request is located on the Right to Know webpage for the matter
1. A summary is
provided at
Attachment A.
Practical refusal reason
I am authorised to make decisions in relation to FOI requests received by the OSI.
I have decided the OSI is required or authorised to refuse access to your request because the work involved
in processing your request − in its current form − would substantially and unreasonably divert the resources
of the OSI from its other operations. This is called a ‘practical refusal reason’ under s 24AA of the FOI Act.
Searches indicate that the OSI holds 62 documents comprising an estimated 694 pages for your request.
Processing resource
Est. hrs
Identifying,
Subject to further scope revisions, searches for relevant document
have been completed and the documents identified have been placed
9
locating or
in chronological order.
collating
documents within However, the OSI wil stil need to prepare the documents for a
the filing system
preliminary assessment – this would include:
of the OSI.
• Collating the documents and inputting details of each one into a
schedule
• Applying relevant header information (eg FOI document numbers)
Examine the
This work is not complete. To project estimated processing, a timed
12
documents for
assessment of a 15% sample of the relevant documents was
1 https://www.righttoknow.org.au/request/meetings between osi and icc
GPO Box 812, Canberra ACT 2601
Telephone: 1300 112 494 • websit
e www.osi.gov.au
Processing resource
Est. hrs
application of
undertaken. As a result, it was estimated it would take approximately
exemptions.
40 seconds per page to assess the documents.
As such, I conservatively estimate that it would take at least 12 hours
(40 seconds x 694 pages = 11 hrs, 54 minutes) to do a preliminary
assessment on the documents within the scope of the request.
However, this estimate would likely increase due to complexity and
other relecant factors. Specifically, the documents:
• Are not limited by reference to a timeframe or any particular
subject-matter or topic.
• Appear to include highly sensitive information which would require
careful consideration. For example, information affecting national
security, defence or international relations.
Consulting with
Based on the sample above, the OSI considers that it may need to
16.5
third parties.
consult at least the following third parties:
• eight Australian Government agencies and departments or
authorities of the Commonwealth
• two private organisations
• potentially one international organisation.
I estimate it would take 1.5 hours to complete each third party
consultation, having regard to:
• The time involved with preparing correspondence and document
packs for each third party – noting several third parties would need
to provide views on several of the documents.
• Answering enquiries the third parties may make during the
consultation process.
• Considering any final submissions the third parties make to the
OSI and, if required, updating the relevant documents accordingly.
However, the numbers of third parties and therefore hours required to
complete consultation may increase subject to an assessment of all
documents within scope.
Deciding whether This involves:
21-22
to grant, refuse or • Preparing a draft decision, statement of reasons and a finalised
defer access.
schedule of documents (3 hours).
• Relevant internal areas and officers with necessary subject-matter
expertise reviewing the draft decision and relevant documents. In
this case, 2 OSI areas – Legal and Policy and Governance and
Security - would be required to review the documents and provide
input (3 hours per area = 12 hours).
• Final review decision-making on the request by an OSI authorised
officer (6-7 hours). A decision-maker must consider in detail the
terms of the FOI request, relevant provisions of the FOI Act and
Processing resource
Est. hrs
the FOI Guidelines, the content of the relevant documents, as well
as input from third parties and internal OSI work areas.
Redacting exempt This involves redacting identified material per the decision-maker’s
2.5
material from the
decision and a range of other administrative tasks, such as:
document and
• Ensuring appropriate metadata and security controls are placed on
notifying you of
the documents as required, and that relevant footer information is
an interim or final
also included.
decision and
• Manually applying a strikethrough on all classification markers that
preparing any
appear in the documents to be disclosed.
relevant
• Preparing and seeking clearance of the correspondence enclosing
documents for
the final decision and attachments notifying you of the decision on
disclosure.
your request.
Total est. hours
61-62
Request consultation process
Before I make a decision to refuse your request, section 24AB of the FOI Act requires a ‘request consultation
process’ (see FOI Act extracts at
Attachment B). Under this request consultation process you have 14 days
commencing the day after you are given this letter to do one of the following:
• Withdraw your request.
• Revise your request in writing.
• Tell us in writing you do not want to revise your request.
Further information about each of these options is below.
Withdraw your request
It is open to you to tell us in writing you want to withdraw your request.
Your request wil be finalised as withdrawn if you do not respond to this letter by providing a revised request
or telling us you do not want to revise your request within 14 days commencing the day after you are given
this letter.
Revise your request
As suggested in the OSI’s correspondence of 15 October 2024, we suggest that you revise your request by:
• Agreeing to exclude publicly available material that falls within scope. This material currently accounts
for about 184 pages of material across the different parts of your request.
• Part 3 of your request currently captures an estimated 370 pages of material. We would encourage you
to withdraw this part and await the outcome of your request for the travel programmes (part 2 of your
request), which comprises about 48 pages of material.
• For part 1 of your request, agree to exclude any administrative communication (e.g. practical
arrangements for travel and meetings, as well as thank you and acknowledgement emails).
•
Advise whether the documents sought should relate to a particular subject-matter or topic, or to a
particular time period (e.g. documents created in 2023) or a particular instance of OSI official travel.
Please note that the documents currently within scope:
o Cover a 2 year period spanning September 2022 to September 2024, inclusive.
o Relate to three different instance of official travel which, respectively, occurred in October
2022; April 2023; and November 2023.
If you do not want to revise your request
You may not wish to revise your request. However, this may have an impact on the outcome of your request.
For example, I or another authorised decision-maker may decide to refuse your request if a practical refusal
reason still exists in relation to your request.
Next steps and questions
During this consultation period, you are welcome to seek assistance from the OSI’s Communication and
Information Access area to revise your request. If you revise your request in a way that adequately
addresses or removes the practical refusal reason outlined above, we wil review your revised request and
tell you if further information is needed or if we can continue to process your request on the revised terms.
Please note this request consultation period is not included in the statutory processing period for your
request.
If you wish to discuss this letter for any reason, please contact the OSI Communication and Information
Access area by e
mail to xxxxxxxxxxxxx@xxx.xxx.xx.
Yours sincerely
Name: Sam
Position: A/g Chief Operating Officer
Office of the Special Investigator
Attachments
Attachment A:
Background to FOI24/18
Attachment B:
Relevant extracts of the FOI Act
Attachment A: Background to FOI24/18
• On 22 September 2024, you submitted your request to the OSI.
• On 3 October 2024, the OSI requested that you provide further information to clarify the scope of your
request.
• On 4 October 2024, you revised the scope of your request to:
1. Al communications between OSI and past and present staff, employees, advisors or
contractors of ICC
2. OSI travel programmes
3. Briefing notes for OSI visits to the Netherlands and London
Exclude:
1. Draft documents; and
2. Documents captured by other FOI requests in which the OSI has provided me a decision
already, or which have been published to the OSI’s Disclosure log.
• On 15 October 2024, the OSI contacted you again to request that you provide further information to
clarify the scope of your request. The OSI also sought your agreement to a 30-day extension of time.
• A fol ow-up was sent to you on 22 October 2024 as no response had been received to the OSI’s request
of 15 October 2022. The OSI also informed you that if a response was not received by 12:00PM on
23 October 2024, that the agency may need to process your request on the basis of the available
information and request an extension of time from the OAIC.
• As at 1 November 2024, the OSI has not received a response to its request for further information from
you.
Attachment B: Relevant extracts of the FOI Act
Section 24AA of the FOI Act: 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
(i ) 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
(i ) consulting with any person or body in relation to the
request;
(c) making a copy, or an
edited copy, of the
document; (d) notifying any interim or final decision on the
request.
(3) In deciding whether a
practical refusal reason exists, an
agency or Minister must not have regard
to:
(a) any reasons that the
applicant gives for
requesting access; or
(b) the
agency's or Minister's belief as to what the
applicant's reasons are for
requesting access;
or
(c) any maximum amount, specified in the regulations, payable as a charge for processing
a
request of that kind.
Section 24AB of the FOI Act: What is a request consultation process?
Scope
(1) This section sets out what is a
request consultation process for 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 t
he 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.
Extension of consultation period
(5) The contact person may, with the
applicant's agreement, extend the consultation period by written
notice to the
applicant.
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.
(7) The
request is taken to have been withdrawn under
subsection (6) at the end of the consultation
period if:
(a) the
applicant does not consult the contact person during the consultation period in
accordance with the notice; or
(b) the
applicant does not do one of the things mentioned in
subsection (6) before the end of the
consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an
applicant is given a notice under
subsection (2) and ending on
the day the
applicant does one of the things mentioned in
paragraph (6)(b) or (c) is to be
disregarded in working out the 30 day period mentioned in
paragraph 15(5)(b).
Note:
Paragraph 15(5)(b) requires that an
agency or Minister take all reasonable steps to notify
an
applicant of a decision on the
applicant's request within 30 days after the
request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the
agency or Minister to undertake a
request consultation
process once for any particular
request.
