Hi Adam,

A recent decision of the Information Commissioner ('MK' and Department of Defence (Freedom of information) [2017] AICmr 89 (15 September 2017) might assist here (apart from demonstrating that Defence engages in some less than realistic estimates of processing impact).

Defence’s FOI area confirmed in that decision (para 22, in a quotation the Australian Information Commissioner gave from a submission Defence made) that they can search the entire database, of Objective, Defence’s electronic document and records management system, using a global ‘researcher access’ to open every compartment of the system, including locked-down folders without substantially and unreasonably diverting the resources of the agency from its other operations.

It may therefore be useful, without having to make major changes to your scope, to ask Defence to do this FOI in a staged approach:
* First, compile a list of documents in Objective, that met the terms of your scope, using the FOI team’s global ‘research access’ (not all documents are on Objective, but all corporate documents required to be archived are required to be) and these documents you seek would definitely be corporate documents required to be archived due to their nature
* If the list is not excessive, to provide those documents, but if it’s a very large number of documents, to give you copy of the list and let you indicate which ones will be of most interest to you

Hope that helps.

I note that Melissa Davidson from Defence has tempered her original response, following your raising of the access the Defence FOI area has to all of Objective (as the Australian Information Commissioner referred to in his recent decision).

While an agency may be insistent that an applicant specifically identify individual documents sought (which is extremely difficult for an applicant to do as it requires the applicant to already know the document, which given these aren’t public documents, is near impossible), the fact of the matter is that under the FOI Act an applicant is entitled to seek documents on no more than by asking for documents that contain mention of particular information sought (although this can increase the costs of searching, which can increase costs to the Applicant if it’s not a application for personal information).

As per para 2.33 of the s 93A Guidelines an FOI application “may nevertheless be framed by reference to a document that contains particular information”

I do note Defence tends to be quite keen to push anything but very simple FOI applications to practical refusal consultations, no doubt because this allows them to ‘stop the clock’ under s 24AB(8) of the FOI Act on the otherwise 30 day statutory processing deadline obligation, and often applicants give up in the face of the feigned obtuseness of Defence FOI staff, who tend to misrepresent their ability to access documents sought.

As per para 3.106 of the s 93A Guidelines It is nevertheless expected that an agency or minister, for the purpose of a request consultation process, will provide a breakdown of the time estimated for each stage in processing a request by sampling a reasonable selection of the relevant files to give an indication of the time that may be required for the decision-making process. It is therefore very disappointing, despite you offering to stagger the FOI process so as to help avoid any excessive burden on Defence, by limiting your request to only those documents on Objective, and by seeking a list of all relevant documents on Objective to be provided to you, to help you identify specific documents of interest to you (as Defence wants), that they have refused to do so (instead wanting you to limit your request to only one functional area of Defence, where notably, their strongest exemption claims are going to be).

While Defence may state how it wants you to frame your FOI application, and infer if you don’t put it the way the want, they will refuse by way of implicit coercion, it is you and not them that decides the scope of your FOI application.

However I suspect, given the history over the last five years of FOI decisions published by Defence, that they will seek to delay and tie you up, by refusing access and making you go through review, which can often take a year or more (if it goes to IC Review), to get the correct and appropriate assistance.

You may therefore wish to consider just seeking documents held by a reduced subset of areas (both internal and Contractors) in Defence, just to make it a bit more difficult for Defence to issue practical refusal claiming you were uncooperative (which they always do if you don’t vary). This means you’ll have to make another FOI application down the track to obtain the others, but given the delay and frustration otherwise likely, it’s the lesser of evils.

For assistance I’ve included some extracts of the s 93A Guidelines below that you might find helpful, plus I’ve included some links to recent IC Decisions on Practical Refusal reviews you might find of relevance, in assessing how to proceed. Of interest, the Australian Information Commissioner has held that in order for a practical refusal decision to be justified, the agency must have made reasonable calculations (based on scoping or prior relevant experience) of the time involved if the application proceeded, and must not place too low a threshold on what processing time would be “unreasonable” (the Australian Information Commissioner has held that even at 50+ hours, a practical refusal decision would still not exist, but at 60+ hours it does appear the Australian Information Commissioner would agree it was ‘unreasonable’).

Just one caution on expanding beyond Objective holdings, as Defence could readily claim far greater processing time given more complicated searching (a recent decision by Defence claimed it would need 600 hours+ to personally interview every officer in a division to “identify documents”, held in paper files and H drives and email accounts, even though the Applicant had not requested such ridiculous interviews).

http://classic.austlii.edu.au/cgi-bin/si...

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The fact that a Defence has not provided you with any substantive processing estimate, either to your original FOI request, or your revised FOI request (which Defence still has pressed practical refusal against, which is not quite appropriate - Defence should have giving processing estimate at least at this stage before continuing to seek revision of scope) is of note I believe and will assist you in review.

Hope that all helps

Verity

Extracts of s 93A Guidelines of relevance

1.5 Each person has legally enforceable rights under and subject to the FOI Act to obtain access to government documents and to apply for the amendment or annotation of records of personal information held by government.

1.10 A request must also provide such information as is reasonably necessary to enable a responsible officer of the agency or the minister to identify the document that is requested (s 15(2)(b)) and must give details of how notices under the FOI Act may be sent to the applicant (see Part 3 of these Guidelines).

1.11 An agency has a duty to take reasonable steps to assist a person to make a request so that it complies with the formal requirements of the FOI Act (s 15(3)) (see Part 2 of these Guidelines).

Practical refusal

1.18 An agency or minister may refuse a request if a ‘practical refusal reason’ exists (s 24) but only after following the ‘request consultation process’ set out in s 24AB of the FOI Act (see Part 3 of these Guidelines).

1.19 A practical refusal reason means that:

* a request does not sufficiently identify the requested documents (s 24AA(1)(b)); or

* the work involved in processing the request:
- in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations (s 24AA(1)(a)(i))

1.20 If access is refused in respect to any part of a request for access, the decision maker must provide a statement of reasons under s 26 of the FOI Act (see Part 3 of these Guidelines).

Information Commissioner review

1.30 An FOI applicant can apply to the Information Commissioner for merit review (IC review) of an access refusal decision by an agency or minister (s 54L)

Meaning of ‘document’

2.29 A ‘document’ is defined in s 4(1) to include any or any part of the following:

* any paper or other material on which there is writing

* a map, plan, drawing or photograph

* any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them

* any article or material from which sounds, images or writing are capable of being reproduced with or without the aid of any other article or device

* any article on which information has been stored or recorded, either mechanically or electronically

* any other record of information

* any copy, including any part of any copy, of a reproduction or duplicate of a thing listed above.

2.30 The definition of ‘document’ is broadly stated and is not exhaustive. It includes sound recordings, films, video footage, microfilm, and information stored on computer tapes, disks, DVDs and portable hard drives and devices. It can also include information held on or transmitted between computer servers, backup tapes, mobile phones and mobile computing devices (see Part 3 of these Guidelines). The term would also cover forms of recorded information that are three-dimensional, such as a land use planning model.

Documents of an agency

2.35 A ‘document of an agency’ is defined in s 4(1) as:

* a document in the agency’s possession, whether created or received in the agency, or

* a document in relation to which an agency has taken contractual measures under s 6C in order to ensure that it receives the document from a contractor or sub-contractor providing services to the public on the agency’s behalf (see [2.37]–[2.44] below).

2.36 ‘Possession’ of a document is not limited to actual or physical possession, but can include constructive possession where an agency has the right and power to deal with a document, regardless of where and by whom it is stored. Any record of information which an agency has downloaded from a shared database or any other database and stored on hard disks or file servers in its physical possession should be treated as a ‘document’ of that agency. As noted below at [2.46], a document in the possession of a staff member providing support functions to a minister has been held in the Victorian Court of Appeal to be a document in the minister’s possession and the inference of constructive possession could be drawn by virtue of the employment relationship.

Documents held by Commonwealth contractors

2.37 A person may make a request to an agency for access to a document held by a contractor or subcontractor relating to the performance of a ‘Commonwealth contract’. These documents are included in the definition of ‘document of an agency’ (s 4(1)) where the agency has taken contractual measures in accordance with s 6C.

2.38 Agencies are required by s 6C to ensure that Commonwealth contracts entered into on or after 1 November 2010 contain contractual measures that enable the agency to obtain any document for which an FOI access request is received. The term ‘Commonwealth contract’ is defined in s 4(1) to mean a contract:

* to which the Commonwealth or an agency is or was a party

* where services are or were to be provided under the contract on behalf of an agency to a person who is not the Commonwealth or an agency, and

* the services are in connection with the performance of the agency’s functions or the exercise of its powers.

2.39 In summary, in relation to contracts entered into on or after 1 November 2010, the FOI Act confers a right of access to documents held or created by a contractor or subcontractor relating to their provision of services on an agency’s behalf to the public or a third party. If an agency receives a request for access to such a document, the agency is to take action to obtain a copy of the document from the contractor or subcontractor, and then decide whether access is to be given to that document under the FOI Act.

Personnel records

2.61 If an agency has established procedures for access to personnel records, an employee or former employee may only apply for access to their records under the FOI Act in limited circumstances (s 15A). A personnel record means those documents containing personal information about an employee or former employee that an agency has kept for personnel management purposes (s 15A(1)). An application under the FOI Act for access to those records may only be made where the employee or former employee has made a request under those agency procedures and is either not satisfied with the outcome, or has not been notified of the outcome within 30 days (s 15A(2)).

Key principles

3.1 The FOI Act closely regulates the way that agencies and ministers must process requests for access to documents. In addition to the detailed rules discussed in this Part, agencies and ministers should have regard to central principles that underpin the right to obtain access to documents held by government (see Part 1 of these Guidelines). These include:

• the functions and powers given by the FOI 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 (s 3(4))

• a person’s reasons for seeking access to a document, or an agency or minister’s belief about a person’s reasons for access, are not relevant (s 11(2))

• the Act does not limit any power to give access to information under other legislative or administrative arrangements (s 3A(2)).

Principles of good decision making under the FOI Act

3.6 The public expects agencies and ministers to act fairly, transparently and consistently in their administrative decision making and to be accountable for the decisions they make. The quality of decisions under the FOI Act is particularly important given the integral role freedom of information requests can have in securing open government.

3.8 Decisions made under the FOI Act must be consistent both with the requirements of the Act and with general principles of good decision making. Those general principles are explained in five guides published by the Administrative Review Council (ARC). This Part discusses how those principles can be relevant to decisions made under the FOI Act. In summary, as the ARC guides explain, the general principles require that decisions are lawfully made, that procedural fairness is observed, that decisions are based on findings of fact, reasons are given for decisions, and that people directly affected by administrative decisions are informed of their review rights.

Right of access

3.36 Any person has the right to apply for access to a document of an agency or an official document of a minister (s 11(1)).

The formal requirements of an FOI access request

3.48 A request for documents under the FOI Act must meet the following formal requirements:

• The request must be in writing (s 15(2)(a)).

• The request must state that it is a request for the purposes of the FOI Act (s 15(2)(aa)).

• The request must provide such information as is reasonably necessary to enable a responsible officer of the agency or the minister to identify the document that is requested (s 15(2)(b)) (see [3.97]). Before refusing a request for failing to meet this requirement an agency or minister must undertake a ‘request consultation process’ (see [3.111]–[3.115]).

• The request must give details of how notices under the FOI Act may be sent to the applicant (s 15(2)(c)).

• The request must be sent to the agency or minister.

Assisting an applicant

3.49 An agency or minister may refuse a request that does not meet the formal requirements set out in s 15 (subject to conducting a request consultation process before basing a decision on s 15(2)(b)). However, an agency also has a duty to take reasonable steps to assist a person to make a request that complies with the formal requirements of the FOI Act (s 15(3)). This duty applies both when a person wishes to make a request and when they have made a request that does not meet the formal requirements. While the Act places an obligation only on agencies, ministers’ offices may adopt a similar approach to assisting applicants.

3.50 An agency has a separate duty to take reasonable steps to assist a person to direct their request to the appropriate agency or minister (s 15(4)). This duty may arise, for example, if the document requested is not in the possession of the agency but is known or likely to be in the possession of another agency or minister.

3.51 The nature of the duty to take ‘reasonable steps’ to assist an applicant to make a request, and to direct the request to the appropriate agency or minister, will depend on the circumstances of each request. Factors that may be relevant include the nature of a request, the extent of detail required to clarify the scope of a request, an applicant’s knowledge (or lack of knowledge) of the structure of government and the functions of agencies, and whether an applicant needs special assistance because of language or literacy issues or a disability.

3.52 If a person has not yet made a request and contacts an agency or minister’s office to enquire whether they hold particular information, it is appropriate to explain the agency’s functions and the type of information that is held.

3.53 An agency or minister should also be flexible in assisting an applicant to provide the details necessary for a request to fulfil the formal requirements of the FOI Act (for example, notifying the applicant of a missing detail by telephone or email).

Interpreting the scope of a request

3.54 A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used. A request for a ‘file’ should be read as a request for all of the documents contained in the file, including the file cover.

3.55 A request for all documents relating to a particular subject would also include any document or print-out which lists the names of all of the files the agency may consider relevant to the request. If in doubt, the agency or minister should consult the applicant to discuss exactly what documents are being requested. Other considerations relevant to construing the scope of a request are discussed below at [3.98].

3.56 It is irrelevant whether or not the applicant already has copies of the documents they have requested.

Decisions on requests for access to documents

3.78 In response to a request for access to documents under the FOI Act, a decision maker may decide to:

• refuse a request that does not meet the formal requirements for making a request in s 15 (see [3.48])

• refuse access under s 24A on the basis that the document sought does not exist, cannot be found or was not received from a contractor (see [3.80])

• allow access to all documents as requested (even if some are exempt)

• withhold all requested documents as exempt, or withhold some documents and allow access to others (discussed in Parts 5 and 6 of these Guidelines)

• provide access to the personal information of the applicant through a qualified person under s 47F(5) (discussed in Part 6 of these Guidelines)

• delete exempt or irrelevant material from documents and provide access to edited copies under s 22 (see [3.85])

• defer access to the requested documents until a later date under s 21 (see [3.91])

• refuse under s 25 to confirm or deny that a document which would be exempt under s 33, 37(1) or 45A exists (see [3.93])

• refuse a request if a practical refusal reason exists under s 24AA, following a request consultation process (see [3.96]).

Refusing access when a practical refusal reason exists

3.96 An agency or minister may refuse a request if a ‘practical refusal reason’ exists. These are of two types: a request does not sufficiently identify the requested documents; or the resource impact of processing the request would be substantial and unreasonable. In either instance the agency or minister must first follow a ‘request consultation process’ before refusing the request.

Request does not sufficiently identify documents

3.97 A formal requirement of making an FOI request is that the request must provide such information as is reasonably necessary to enable a responsible officer of the agency or the minister to identify the document that is requested (s 15(2)(b)). This differs from other formal requirements, in that a failure to comply with this requirement is classified by the Act as a ‘practical refusal reason’ for which a request consultation process is required.

3.98 An agency should not wait until the practical refusal stage to help an applicant to clarify their request. The following considerations should also be borne in mind before a request consultation process is commenced:

• A request can be described quite broadly and must be read fairly by an agency or minister, being mindful not to take a narrow or pedantic approach to its construction.

• An applicant may not know exactly what documents exist and may describe a class of documents, for example: all documents relating to a particular person or subject matter; or all documents of a specified class that contain information of a particular kind; or all documents held in a particular place relating to a subject or person.

• Although a request under the FOI Act must be for ‘documents’, rather than for ‘information’, a request may be phrased by reference to the information that documents contain. This may in fact be an effective and concise way for an FOI applicant to identify documents.

• A request does not need to quote a file or folio number.

Resource impact of processing request would be substantial and unreasonable

3.99 A ‘practical refusal reason’ exists if:

• in the case of an agency — the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations (s 24AA(1)(a)(i))

• in the case of a minister — the work involved in processing the request would substantially and unreasonably interfere with the performance of the minister’s functions (s 24AA(1)(a)(ii)).

3.100 An important similarity in both tests is that they require consideration of whether processing a request would have a ‘substantial’ and ‘unreasonable’ effect. Another similarity is that the Act specifies the same non-exhaustive list of matters that must be considered in applying both tests, and matters that cannot be considered. An important textual difference in both tests is that s 24AA directs attention to whether a request would divert an agency’s resources from its other operations, or would interfere with the performance of a minister’s functions. This means that different considerations may arise in applying the tests to agencies and ministers.

3.101 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. On the other hand, it is implicit in the objectives of the FOI Act that agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources. Similarly, although a broadly worded request is more likely to constitute an unreasonable diversion of resources than a request that is narrowly focused, the fact that a large number of documents lies within the scope of a request may not be determinative if the documents can be easily identified, collated and assessed.

3.102 In deciding if a practical refusal reason exists, an agency or minister must have regard to the resources required to perform the following activities specified in s 24AA(2):

• identifying, locating or collating documents within the filing system of the agency or minister

• examining the documents

• deciding whether to grant, refuse or defer access

• consulting with other parties

• redacting exempt material from the documents

• making copies of documents

• notifying an interim or final decision to the applicant.

3.103 Other matters that may be relevant in deciding if a practical refusal reason exists include:

• 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.

3.104 The Act also specifies matters that an agency or minister must not have regard to in deciding if a practical refusal reason exists:

• any reasons that the applicant gives for requesting access

• the agency or minister’s belief as to the applicant’s reasons for requesting access

• any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind (s 24AA(3)).

3.105 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. The findings in individual AAT and IC review decisions which discuss estimated processing times should be viewed in that light.

3.106 It is nevertheless expected that an agency or minister, for the purpose of a request consultation process, will provide a breakdown of the time estimated for each stage in processing a request. An accurate estimate could be obtained through sampling a reasonable selection of the relevant files as an indication of the time that may be required for the decision-making process. 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.

Request consultation process

3.111 Where an agency or minister is satisfied that a practical refusal reason exists, they must undertake a request consultation process with the applicant before making a decision to refuse the request (s 24AB).

3.112 Before commencing a formal request consultation process, agencies and ministers’ offices are encouraged to discuss the request with the applicant. This is often a more efficient way of obtaining further information from the applicant and helping them to refine a request that is too large or vague. However, if the applicant cannot be contacted promptly, or the discussion does not elicit information that allows relevant documents to be identified, the request consultation process should be commenced.

3.113 The agency or minister must give the applicant a written notice that states:

• an intention to refuse access to a document in accordance with a request

• the practical refusal reason

• the name and contact details of an officer with whom the applicant may consult during the process, and details of how the applicant may contact them

• that the consultation period during which the applicant may consult the contact person is 14 days after the day the applicant is given the notice (s 24AB(2)).

3.114 An agency or minister may wish to state how an applicant is to consult with the contact person, such as by telephone. However it would be unreasonable not to adopt a flexible approach. The consultation period may be extended by agreement between the contact officer and applicant, in which case the contact officer must give the applicant written notice of the extension (s 24AB(5)). The request consultation process period is disregarded in calculating the timeframe for making a decision on the request (s 24AB(8)), that is, the process ‘stops the clock’.

3.115 Agencies and ministers are only obliged to undertake a request consultation process once for any particular request (s 24AB(9)), but they may choose to continue discussions with an applicant in order to refine a request that is still too large or vague.

Assisting the applicant during a request consultation process

3.116 If an applicant contacts a contact officer during the consultation period, the contact officer must take reasonable steps to help them revise the request so that the practical refusal reason no longer exists (s 24AB(3)). For example, a contact officer could provide a breakdown of the time estimated for each step of the process, explain the difficulties the agency will have in dealing with the request and suggest what would be a reasonable request in the circumstances.

Consultation outcome

3.117 Before the end of the consultation period the applicant must by written notice to the agency or minister:

• withdraw the request

• revise the request, or

• indicate that they do not wish to revise the request (s 24AB(6)).

3.118 The request is taken to have been withdrawn if the applicant does not contact the contact person or provide the required written notice during the consultation period (s 24AB(7)). This includes where a verbal agreement is reached with the applicant to revise the request but the applicant does not do so.

The result of this requester’s internal review is that the Department have released one further document, being essentially a Ministerial Advice template (and clearly a extremely early draft document given only the title of the Ministerial Advice has actually been altered from the template).

In effect, for all intents and purposes, the Department has upheld its original decision without any change (that released document is irrevelant to the scope of the FOI really).

Unfortunately Defence has a bad reputation for playing games when it comes to FOI.