Dear Nosey Rosey

Acknowledgement of Your Internal Review Request

I refer to your request for internal review of a decision made under the Freedom of Information Act 1982 (FOI Act) on 17 January 2025. This decision was made in response to your FOI request of 14 December 2024.

Your request for internal review is made in the following terms:

I am writing to request an internal review of the decision made on my Freedom of Information (FOI) request (LEX 6865). I contest the decision to refuse access on the grounds of practical refusal under sections 24AA(1)(a) and (b) of the Freedom of Information Act 1982 (FOI Act). The decision to refuse my request fails to adequately consider the legislative framework and principles established under the FOI Act, as outlined below.

1. Insufficient Identification of Documents (s 24AA(1)(b))

The refusal under section 24AA(1)(b) asserts that my request does not sufficiently identify the documents sought. However, section 15(2)(b) of the FOI Act only requires applicants to "provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency...to identify it." My request is sufficiently specific, as it clearly:

Identifies the subject matter (sharing of personal information originating from the Department of Veterans’ Affairs (DVA)).

Defines the types of documents sought, including memoranda of understanding, service-level agreements, emails, meeting minutes, and privacy impact assessments.

Specifies a timeframe (10 years) for the documents.

The decision-maker’s conclusion that my request spans "five different subject matter areas" and "11 different classes of documents" appears to conflate specificity with comprehensiveness. The FOI Act does not require applicants to narrow requests to a single subject or document type. In Miskelly and Department of Transport and Regional Services [2007] AATA 1791, the Tribunal found that a request is valid if it identifies documents by reference to subject matter, even if the number of documents is extensive.

Further, the FOI Guidelines issued by the Office of the Australian Information Commissioner (OAIC) under section 93A of the FOI Act state at paragraph [3.54] that agencies "should adopt a common sense approach" and, where necessary, consult with the applicant to clarify ambiguities. My request does not present ambiguities but outlines specific parameters that reasonably enable identification of relevant documents.

2. Practical Refusal Reason – Substantial and Unreasonable Resource Impact (s 24AA(1)(a))

The decision under section 24AA(1)(a) claims that processing my request would unreasonably divert resources due to the volume of documents, consultations, and redactions required. While I acknowledge that compliance with the FOI Act may involve significant work, the threshold of "substantial and unreasonable" must be satisfied under section 24AA(1)(a).

Agency’s Responsibilities Under s 24AB

Section 24AB(2)(c) of the FOI Act requires agencies to "assist the applicant to revise the request" in order to remove practical refusal grounds. The consultation letter provided did not adequately assist me to refine my request. The suggestion to "exclude duplicate and draft versions" and "personal information of staff" did not substantively reduce the scope. For example:

The agency failed to propose more specific parameters, such as narrowing the request to certain document types (e.g., memoranda of understanding or privacy impact assessments) or a shorter timeframe.

The agency also did not engage in a meaningful dialogue to clarify how its retrieval systems could better align with my request.

Paragraph [3.117] of the FOI Guidelines states that the "impact on resources" should consider staffing availability and operational impact, and requires agencies to demonstrate how these factors create an unreasonable diversion of resources. The decision fails to quantify or substantiate how resources would be substantially and unreasonably diverted. In Australian Associated Press Pty Ltd and Department of Health (Freedom of information) [2021] AICmr 37, the OAIC highlighted that agencies must provide sufficient detail to justify claims of resource impact.

3. Significant Public Interest

The decision-maker’s assertion that "it is unclear what significant public interest would be derived from the documents sought" contradicts the FOI Act’s presumption of disclosure. Section 3(2) of the FOI Act emphasizes that the legislation exists to increase scrutiny, transparency, and accountability in government operations. The documents sought relate to the handling of personal information concerning veterans and their dependents, a matter of substantial public interest given the sensitive nature of such information.

The FOI Guidelines at paragraph [6.9] further state that agencies should take into account the public interest in transparency when considering the impact of an FOI request. Veterans and their dependents represent a vulnerable demographic whose data management practices warrant public scrutiny. My request aligns with these principles.

4. Suggested Refinements to Scope

To address any remaining practical refusal concerns, I propose the following refinements:

Timeframe: Limit the scope to documents created between 2019–2024.

Document Types: Narrow the request to the following:

Memoranda of understanding, service-level agreements, or contracts governing data sharing between the AEC and DVA.

Privacy impact assessments or equivalent documents relating to the handling of DVA client data.

Policies or guidelines on how the AEC manages DVA client information, including retention, destruction, and security protocols.

These revisions maintain the substantive focus of the original request while reducing the processing burden on the agency.

5. Procedural Irregularities in Refusal

Finally, the refusal decision appears to have overlooked procedural fairness requirements under section 24AA(2) of the FOI Act, which requires agencies to exhaust all reasonable alternatives to practical refusal before denying access. In WL v Department of Defence [2021] AICmr 10, the OAIC emphasized that agencies must ensure refusal decisions are proportional and consider applicants’ willingness to cooperate in refining requests.

Conclusion

I respectfully request that the AEC reconsider its decision and process the revised scope outlined above. I remain willing to engage further to address any remaining concerns. If this review does not result in a favorable outcome, I will exercise my rights to seek external review by the OAIC.

Timeframe to process your request

Your request was received by the AEC on 19 January 2025, and the 30-day statutory timeframe for processing your request commenced from the day after that date. You should expect to receive a decision from us by 18 February 2025.

This 30-day processing period may only be extended by the Information Commissioner. If the processing period is extended, you will be informed of the extension and the reasons for it.

Your address

The FOI Act requires that you provide us with an address to which we can send notices. The address that you have provided is [FOI #12579 email]. We will send all notices and correspondence to this address. Please advise us as soon as possible if you wish for notices and correspondence to be sent to a different address. If you do not advise us of changes to your address, notices and correspondence will continue to be sent to the address specified above.

Disclosure log

Documents released under the FOI Act may be published in a disclosure log on the AEC/s website. Section 11C of the FOI Act requires this publication, however it is subject to certain exceptions, including where publication of personal, business, professional or commercial information would be unreasonable.

Further assistance

If you have any questions please email [email address], or contact our enquiries line on 13 23 26.

Kind regards

Jade

Australian Electoral Commission