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Recent Cases: Commonwealth

'AYR' and Department of Home Affairs (Freedom of Information) [2025] AICmr 177 (24 October 2025)

Facts

 

AYR (”applicant”) applied to the Department of Home Affairs (“Department”) for access to a document titled Community Assessment Tool ("CPAT"). The Department did not make a decision within the statutory timeframe for the applicant’s request. Therefore, under s 15AC(3), the Department was taken to have made a decision refusing the applicant’s request for documents. The applicant applied to the Office of the Australia Information Commissioner (”Commissioner”) for review of the Department’s deemed refusal decision.

 

The Department then made a purported decision. It identified one document relevant to the applicant’s request and decided to refuse access in full under s 47E(d). The Department also deleted certain information under s 22.

 

During the course of the IC review, the Department withdrew its s 47E(d) claim over some material but maintained its claim over the remainder of the material. The applicant contested the s 47E(d) exemption claim but agreed that s 22 applied.

 

Held

 

Under s 55K of the Freedom of Information Act 1982 ("FOI Act"), the Commissioner set aside the decision of the Department and substituted it with the decision that:

  • the material which the Department no longer maintained to be conditionally exempt under s 47E(d) of the FOI Act, were not conditionally exempt, and
  • the material that the Department maintained was conditionally exempt under s 47E(d) of the FOI Act, were conditionally exempt under that provision and release would be contrary to the public interest at the time of the decision.

 

Reasoning

 

Certain operations of agencies exemption – s 47E(d)

 

The Department submitted that the CPAT is a decision support tool to assist Status Resolution Officers ("RSOs") assess the most appropriate placement of an unlawful non-citizen while status resolutions are pursued. Disclosure of the material would adversely impact the Department’s operations, compromising its ability to undertake reliable CPAT assessments by allowing individuals to identify factors, or a combination of those factors, that would increase the likelihood of an individual receiving a less restrictive placement recommendation. This would reduce the capacity of the Department to rely on the CPAT as an effective method by which to assess the level of risk an individual poses to the Australian community. The Commissioner considered prior decisions and held that the material claimed to be exempt by the Department was conditionally exempt under s 47E(d).

 

Whether access would be contrary to the public interest – s 11A(5)

 

While disclosure would promote the objects of the FOI Act, the Commissioner held that disclosure of this material could reasonably be expected to prejudice security, law enforcement, public health and public safety, and prejudice the Department’s operations. These factors significantly outweighed the factors favouring disclosure and were contrary to the public interest.

'AYT' and Department of Health, Disability and Ageing (Freedom of Information) [2025] AICmr 182 (10 November 2025)

Facts 

 

AYT (“applicant”) applied to the Department of Health, Disability and Ageing (“Department”) for access to a variety of information relating to the approval and safety of 3 COVID-19 vaccines. The Department initiated a request consultation process on the basis that a practical refusal reason existed as processing the request would substantially and unreasonably divert its resources from its other operations (s 24AA(1)(a)(i)). In response, the applicant revised their request 3 times, settling on a revised request that sought access to 4 categories of information.

 

The Department refused access to the applicant’s revised request on the basis the processing it would substantially and unreasonably divert the Department’s resources from its other operations (ss 24 and 24AA(1)(a)(i)). 

 

The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review of the Department’s decision.

 

Held 

 

Under s 55K of the Freedom of Information Act 1982 ("FOI Act"), the Commissioner affirmed the Department's access refusal decision. The Commissioner was satisfied that the work involved in processing the applicant’s request would substantially and unreasonably divert the resources of the Department from its other operations for the purposes of s 24(1)(b) of the FOI Act.

 

Reasoning 

 

Practical refusal reason – s 24

 

For an agency to refuse access to documents because of a practical refusal reason, a request consultation process must be undertaken in accordance with s 24AB. By failing to name a contact person in the request consultation notice, the Commissioner held that the Department failed to comply with s 24AB(2)(c). However, the applicant was eventually able to correspond via email directly with an identifiable Departmental representative. The Department adequately engaged with the applicant to provide them with information and suggestions about a proposed request. Therefore, the Commissioner was satisfied that a valid request consultation process was undertaken. 

 

Substantially and unreasonably divert the resources of the Department from its other operations – s 25(1)(a)

 

The Commissioner found that even though the applicant submitted a revised request, it was evident that processing that revised request would be a substantial diversion of the Department’s resources.  In forming this view, the Commissioner formed a view on the total number of pages likely to still be required to be considered (91,127 pages) and the time likely to be taken to process those documents.  Even if the minimum amount of time proposed (which the Commissioner noted was a significantly reduced 2 minutes) was taken for both examination and redaction of the documents, the time to process would still be approximately 2,786 hours. This satisfied the onus of establishing that processing would be a substantial diversion of the Department’s resources. The Commissioner also took into account the sampling process undertaken by the Department, noting some duplication in examining and redacting material and consultation where it may not have been reasonably practicable to consult with third parties may have reduced the time. 

 

The Commissioner accepted that there was a public interest in the release of the documents being sought by the applicant. However, in considering whether the work involved in processing the request would unreasonably divert the Department’s resources from its other operations, the Commissioner held that it would. The substantial diversion of specialist staff attention from their usual functions for a significant period was seen as a very substantial diversion. Further, the public interest in the release of the information is already promoted through other reports and notifications. Therefore, the Commissioner was satisfied that a practical refusal reason exists for the purposes of s 24(1)(b) because processing would unreasonably and substantially divert the resources of the Department from its other operations.