Administrative law updater: Practical refusal reasons for declining FOI requests

What is the problem decision-makers face?

All Freedom of Information (FOI) requests require the relevant government agency to devote resources to locating documents and preparing a decision. It is also necessary for the agency to review the contents of potentially relevant documents carefully to ensure that exempt material is not inadvertently released into the public domain. This exercise requires skill and, often, significant time. For this reason, many larger organisations retain specialist FOI teams to deal with such requests.

If processing an FOI request would "substantially and unreasonably" divert the resources of the agency from its other operations, the request may be refused under section 24 of the Freedom of Information Act 1982 (FOI Act). This is known as a "practical refusal reason" for declining to process the request. Assessing whether a practical refusal reason exists can be difficult because the terms "substantially" and "unreasonably" require the exercise of value judgements and can be highly fact-specific. A large request for documents may pose a significant challenge for a smaller agency with limited resources. However, the same request might straightforwardly be dealt with by a large agency's dedicated FOI team. Accordingly, the question of whether a request both substantially and unreasonably diverts agency resources requires an assessment of the practical extent of resources available to the agency.

Impact of a recent decision of the AAT: Farrell; Chief Executive Officer, Services Australia

In Farrell; Chief Executive Officer, Services Australia and [2020] AATA 2390, the Tribunal was asked to determine whether Services Australia could refuse access to approximately 750 Australian Victims of Terrorism Overseas Payments (AVTOP) decision letters on the basis that processing the request would substantially and unreasonably divert the resources of the agency from its other operations. The Tribunal concluded that, on the facts of this case:

• processing the request would substantially divert resources away from Services Australia's other operations; however
• the diversion of resources was nevertheless not unreasonable.

Accordingly, Services Australia could not refuse access.

In resolving the issue of unreasonableness, the Tribunal considered a range of factors including the size of Services Australia, both in terms of the raw number of its employees and its capacity to administer large numbers of social security claims and payments. The Tribunal also had regard to the attribution of the equivalent of 66.66 full-time Services Australia staff to FOI processing in the 2018-2019 financial year.

The facts and decision in Farrell and Services Australia

Mr Paul Farrell, a journalist, made an FOI request for a number of letters relating to claims under the AVTOP scheme. Approximately 750 AVTOP claims fell within the scope of Mr Farrell's request. The Tribunal found that processing the request would likely take approximately 61.25 hours of staff time. The Tribunal agreed with Services Australia that the diversion of resources required by the request would be substantial. In particular, Senior Member O'Donovan accepted that "substantial" did not have to mean "large" in this context and that a diversion "of substance" would suffice to satisfy the first limb of the test. The real issue was whether the substantial diversion was also unreasonable.

The Tribunal found that a majority of the work would be undertaken by the FOI team, rather than the Emergency Management Team as the relevant line area (although the line area would have to assist). Taking into account the size of Services Australia's large FOI team, the Tribunal considered that processing Mr Farrell's request would be "less significant than it would be for a smaller agency". There was no evidence that the resources of the Emergency Management Team would be diverted in particularly critical or difficult times.

While acknowledging that Mr Farrell had not narrowed his request for documents as Services Australia had requested him to do, the Tribunal did not consider this necessarily meant he had been unco-operative. There was no less burdensome alternative which would yield the same information. The Tribunal determined that it was not unreasonable of Mr Farrell to press the original request instead of relying on publicly available statistics which were merely based on the information in the underlying documents.

Further, the Tribunal placed weight on the public interest in disclosing the documents. It accepted as a general principle, without "stringently" assessing the specific public interest in this case, that the public interest will ordinarily favour scrutiny of government spending. Further, although some information about the AVTOP program was already in the public domain, the Tribunal observed that allowing the Australian government to determine what information it wishes to release brings with it a risk that agencies might release material that is more favourable than representative – although it was careful to point out that there was no such suggestion in this particular case.

The Tribunal accordingly affirmed the decision of the Information Commissioner that there was no practical refusal reason.

After Farrell, here's what you need to remember

The Tribunal's decision brings considerations of agency size to the fore. While 61.25 hours of processing time may well be both substantial and unreasonable for a smaller agency with fewer staff, the size and the resources of Services Australia led the Tribunal to determine that there was no unreasonableness in processing Mr Farrell's request.

Agencies seeking to rely on a practical refusal reason must be careful to provide specific evidence that processing a request would be unreasonable in the context of their broader operations as well as their FOI capabilities. In order to do so, agencies should be prepared to explain, with specificity, what other work (particularly if it includes emergency or other critical work) will be sacrificed or delayed in order to process the request.

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