Recent Cases: Commonwealth
'AVS' and Torres Strait Regional Authority (Freedom of information) [2025] AICmr 88 (14 May 2025)
Facts
‘AVS’ (“applicant”) applied to the Torres Strait Regional Authority (“Authority”) for access to all documents broadly relating to tenders, grants and contracts providing legal services and legal education to Aboriginal and Torres Strait Islander people from 30 June 2010 to 13 August 2021.
The Authority issued a request consultation notice under s 24AB of the FOI Act, advising that it intended to refuse access to the requested documents on the basis that the work involved in processing the request, in its current form, would have substantially and unreasonably diverted the Authority’s resources from its other operations in accordance with s 24AA(1)(a)(i). The applicant declined to revise their request in response to that notice.
The Authority subsequently refused the applicant’s request under s 24AA(1)(a)(i). The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review.
Held
The Commissioner affirmed the Authority’s decision that a practical refusal reason existed under s 24(1)(b).
Reasoning
Whether the Authority was entitled to refuse access for a practical refusal reason – s 24
The Commissioner clarified that the issue needed to consider whether a consultation process was undertaken in accordance with s 24AB, whether the work required to process the request would substantially divert resources, and whether the work required to process the request would unreasonably divert resources.
Whether consultation process was undertaken – s 24AB
In March 2025, the Commissioner directed the Authority to contact the applicant and engage in a further 14-day consultation period, as the Authority had not undertaken a valid consultation process under s 24AB. The Authority then contacted and met with the applicant to discuss the request, and advised the reasoning for the practical refusal decision, and requested that the applicant provide more information in relation to the request, as well as advising the applicant on ways to confine the scope of the request. The Commissioner considered the additional steps taken by the Authority, as well as the consultations, and found that the Authority had taken the reasonable steps to assist the applicant, and a valid consultation process was undertaken.
Whether a practical refusal reason exists – s 24AA(1)(a)(i)
Whether processing the request would substantially divert the Authority’s resources
The Authority had initially maintained that a minimum of 1,300 documents were relevant to the request, however, after consultation, the Authority’s searches returned between 1,041 to 6,908 documents. The Authority then undertook a sampling exercise of 227 documents with an estimated processing time of 215 hours based on an estimated 30 second to 5 minutes processing time each document. This was calculated based on an estimated average of 15 pages per document. It estimated the number of documents that could be released without exemption and the time to identify these; the number of documents requiring consultation and redaction and the time to identify these and the time to draft correspondence, schedule of documents and statement of reasons. The Commissioner accepted the Authority’s calculations of the processing times, and that the sampling exercise was appropriate, therefore the processing of the request would require a substantial diversion of resources.
Whether processing the request would unreasonably divert the Authority’s resources
The Commissioner accepted the Authority’s reasoning, which included that it was a small agency with only 4 skilled FOI staff and processing could divert resources away from its primary functions. The Commissioner accepted that the Authority had made genuine attempts to assist the applicant revise the scope of the request, and the applicant had not narrowed the scope. The Commissioner also noted that the Authority was still yet to identify all of the relevant contracts, and found that the processing of the request would require an unreasonable diversion of resources.
Saywell and Comcare (Freedom of information) [2025] ARTA 377 (16 April 2025)
Facts
Mr Scott Saywell (“applicant”) requested access to documents from Comcare (“respondent”). The respondent refused access under s 42 of the FOI Act, as the documents sought were any communications between the respondent and a lawyer from HBA Legal relating to an email from the applicant in a Tribunal case. The respondent identified 2 relevant documents: one was exempt in its entirety under s 42, and the other, which included 2 emails decided to be irrelevant under s 22, with the remaining pages decided as exempt under s 42. There was no dispute that the documents were privileged, however, the applicant submitted to the Administrative Review Tribunal (“Tribunal”) that the respondent had waived the privilege.
Held
The Tribunal affirmed the respondent’s decision relating to the privileged and irrelevant material.
Reasoning
Documents subject to legal professional privilege – s 42
The Tribunal confirmed that the emails from the two documents were correctly claimed as legally privileged under s 42, and the applicant accepted this privilege, subject to the waiver of privilege.
The Tribunal considered the applicant’s submissions that the lawyer had waived the privilege, and what the applicant appeared to assert that the privilege claim failed because of alleged improper purpose. The Tribunal clarified that the lawyer cannot waive the privilege, and that if there was a waiver it must come from the respondent.
In relation to the applicant’s allegation of improper purpose, the Tribunal considered the applicant’s submissions that the respondent had failed to meet the requirements to assist the Tribunal or act as a model litigant, which the Tribunal did not accept due to lack of evidence, and it was ‘the wrong question to ask’ and it would not give rise to a prima facie case relating to crime or fraud. The Tribunal found that there was no evidence or any improper conduct of the respondent or the lawyer, and therefore the claim of legal professional privilege did not fail on that basis.
Irrelevant material – s 22
The Tribunal affirmed that the disclosure of the most recent emails in Document 2 would disclose information that is irrelevant to the request. The Tribunal then affirmed that it was not practicable to prepare an edited copy of the document to only remove irrelevant or exempt material, and it would not be reasonably practicable to prepare an edited copy, as the entirety was irrelevant and the whole of the body was removed. The Tribunal viewed that a wholly deleted document was not, in its view, an edited copy. Editing involves deciding what to deep, what to remove and what to modify to ensure accuracy, clarity and suitability for its intended purpose. Deleting the whole does not result in an edited copy.
The Tribunal found that the respondent had not breached any obligations under s 22, and noted that the respondent had complied with s 22(1)(b) by still providing the blank pages to the applicant due to the request for edited copies. The respondent had not acted improperly by doing so at the insistence of the applicant.