The Department of Human Services (now Services Australia) refused access on 21 December 2017, on the basis that a practical refusal reason exists in relation to the request, ie processing the request would substantially and unreasonably divert the resources of the agency from its other operations. Farrell sought a review by the Australian Information Commissioner on 4 January 2018. The Commissioner set aside the decision on 5 June 2019, having decided that ‘a practical refusal reason does not exist’. Onwards to the AAT!
On 1 December 2017 the Department had written to Farrell indicating that it intended to refuse his request unless he revised and narrowed the request, claiming that there were over 750 AVTOP decision letters and an estimated 195 plus hours would be needed to process the request in full. On appeal the Information Commissioner determined that a practical refusal reason did not exist, estimating that the overall processing time would be approximately 61.25 hours in part because redaction would be straight forward and repetitive given the general uniformity between each of the documents.
The Tribunal states
The applicant is a substantial agency. According to the Services Australia 2018-2019 Annual Report, the agency was responsible in 2018-2019 for payments totalling $184 billion; more than 3.5 million social security and welfare claims; and more than 429 million Medicare services. It is a large and well-resourced agency. It has more than 28,000 employees.
With 28,000 bodies alongside a budget and responsibilities on that scale you might expect enough people to handle FOI requests.
The Tribunal notes
In the financial year 2018-2019 it devoted the equivalent of 66.66 full time staff to the processing of Freedom of Information (FOI) requests. On average the agency took 2.86 days (approximately 21.5 hours) to process each request. Of the 6210 FOI access requests the agency processed, 5955 were requests for personal information. This makes it one of the largest FOI processors in the Commonwealth.
For the purposes of these proceedings it was agreed that it would take 61.25 hours for the Department to process the request. It was accepted by the applicant that much of that time would be time spent by members of the FOI team. However, it would be necessary for the FOI team to involve employees from the Emergency Management Team. The Emergency Management Team would be required to undertake the search and retrieval exercise as a consequence of the filing system used in relation to the program and advise on the sensitivities within each document.
In addition to administering the AVTOP program, the Emergency Management Team is responsible for the agency’s preparation, coordination and operational responses to disasters, emergencies and ad hoc government relief. The team often has to allocate all of its resources to facilitate responses to emergencies. There was, however, no evidence to suggest that the processing of this FOI application would involve diversion of resources during any emergency situation.
Information is already in the public domain about the AVTOP program. It is a statutory program. The amount which can be paid to an applicant is capped by the Social Security Act 1991 at $75,000. The amount payable is calculated in accordance with prescriptive payment principles which are a set out in a legislative instrument.
A substantial amount of information relating to the AVTOP is publicly available on the Department’s website describing the nature and purpose of the scheme, eligibility criteria and application processes. The Department has published data on the number of claims paid each financial year and the total amount paid. For some financial years, the Department has published further data that identifies the number of claims received, the number of payments made to primary and secondary victims, and the events in respect of which payments were made. For example, it is possible to work out that the average amount paid to successful primary claimants in 2015-2016 was $57,270 and 12 claims were declined.Services Australia however accepts that
the statistical information which is publicly available does not include all of the information which can be derived from the information in the AVTOP decision notices [and] accepts that more will be known about the program if the FOI request is processed although it disputes the value of that additional information particularly given that the reasons for each individual decision will not be revealed.The Tribunal notes guidelines that
There may be circumstances where the processing of an applicant’s request would have a substantial effect on an agency or minister but may not necessarily be unreasonable in the circumstances. For example, an agency that is particularly large may not necessarily find that the processing of a request to be unreasonable, despite the fact that processing the request would have a substantial effect on the agency. Such agencies are likely to have dedicated resources to ensure that it can appropriately handle requests and reduce the impact of the requests on other business areas of the agency through the establishment of a permanent FOI team, as well as assigning additional temporary resources to handle a peak in the number or complexity of requests. ...
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. Agencies should not adopt a ‘ceiling’ in relation to processing times; for example, deciding that a practical refusal reason exists once the estimated processing time exceeds 40 hours. Rather, each case should be assessed on its own merits, and the findings in individual AAT and IC review decisions which discuss estimated processing times should be viewed in that light.Services Australia argued that '61.25 hours (or 8.1 days) of processing time is sufficient to establish a substantial diversion of resources particularly in a context where the average amount of time normally spent on an FOI request by the agency is 2.8 days', claiming that diversion would be unreasonable because:
(a) There is no significant public interest in the documents requested when regard is had to how much information is already in the public domain about the program.
(b) What little additional information that the release of the sought-after material will reveal does not generate a sufficient public interest to justify the diversion of resources.
(c) Disclosure carries with it a real risk of identification of the claimant, and, where the claimant is a secondary victim, the primary victim.
(d) The goal of promoting the effective oversight of public expenditure is best met by looking at the operation of the AVTOP scheme as a whole and the data already published is sufficient for that purpose.
(e) The public interest in revealing the reasons for individual government decisions is not advanced by the disclosure of the decision letters because they do not contain reasons for the decision to grant or reject individual claims.
(f) Release of the decision notices will not increase public participation in government processes or inform the community of the policies, rules, guidelines, practices and codes of conduct followed by the government. Information about the program published elsewhere does that.
(g) The amount of work required is disproportionate to the value which can be extracted from the documents.
(h) The letters were sent to a highly sensitive customer cohort who have experienced significant trauma. While personal information will have been redacted there is nevertheless a risk, depending on the redactions applied, that a customer would recognise the letter sent to them (if published) and be further traumatised by its release to a third-party journalist. It would not be in the public interest for such outcomes to occur.
(i) It would not be in the public interest to divert staff from the Emergency Management Team which has important responsibilities to search for and retrieve documents in response to an FOI request that will ultimately add little to what is already publicly available.The Tribunal raised with the Department the question of whether, in the phrase ‘divert the resources of the agency from its other operations’, ‘other operations’ included the processing of other FOI requests. The Department submitted that it did.
Farrell argued that there would not be an unreasonable diversion of agency resources: whether disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved.
He submitted that
in line with section 3(2) of the FOI Act, the increased amount of information that would become available would increase the scrutiny of this government program.
... this was important at a level of principle because it was rare that governments would publish information about a failing program. Information about programs which are damaging to an agency’s ‘political masters’ is not likely to be widely published.
... if the information it was hoping to obtain about the program were summarised in a ministerial brief, there would be no argument that they should get access. The fact that the information is stored in a large number of letters rather than summarised in one place should not affect whether the respondent gets access to the documents.
... there was a significant public interest in the release of information about the number of claims and payments in respect of each individual terrorist acts and that additional information could be gleaned about a number of aspects of the program.Farrell urged the AAT to reject the proposition that what was already published was sufficient. An agency deciding for itself what was the best way for oversight to occur was not in the public interest. Release of the documents would
also allow some assessment and analysis about the parity of treatment of claimants under the scheme. The work required to process the claim is not disproportionate to the value which can be extracted from the documents and the failure of the applicant to store documents at a central location cannot be used to justify claims of a substantial and unreasonable diversion of resources.The AAT stated
The diversion of 61.25 staff hours, while significant if measured against the amount of resources the applicant usually devotes to an average FOI request, are tiny relative to the resources available to the agency. Accordingly, it is important to have a proper frame of reference when considering the threshold set by the term ‘substantially’. It has long been recognised that the use of the word ‘substantial’ is both susceptible to ambiguity and is a word ‘calculated to conceal a lack of precision’. It is also a term whose meaning can range, depending on context, from requiring that something be ‘large weighty or big’ or merely indicate that something needs to be ‘real or of substance’. Accordingly, a constructional choice needs to be made in relation to the meaning of the word ‘substantially’ in the context in which it appears. ...
Before an agency can avail itself of the practical refusal reason for failing to process a request, it must establish that doing so would substantially and unreasonably divert resources. These terms should not be interpreted in isolation from each other. To succeed with the exclusion, an agency must establish both. Accordingly, even if an application would involve the unreasonable diversion of the resources of an agency, if the diversion is not substantial then it is not possible to refuse the request for practical refusal reasons. Parliament has, in effect, set a resource-diversion threshold below which even requests that unreasonably divert resources must be processed.
The constructional choice in this case is between an option which forces an agency to process an unreasonable request up to the point at which the resource diversion could be described as large, or, only forcing an agency to process unreasonable requests in circumstances where there is a material diversion of resources even if, in the context of that agency, or objectively, the resources diverted are quite small. It is unlikely that Parliament was intending to create a regime under which resources which were significant but could not be described as large (either relative to the size of the agency or in absolute terms) were being diverted to the processing of FOI requests which unreasonably diverted public resources.
A ‘material’ test is open on the language of the text and consistent with the purpose of the provision and the FOI Act as a whole – keeping in mind that one of the objects of the Act is to facilitate and promote public access to information, promptly and at the lowest reasonable cost. If citizens were able to force the processing of unreasonable FOI requests because the resource diversion threshold was set high, then it eliminates incentives to negotiate reasonable outcomes which meet the disclosure objectives of the FOI Act but at a reasonable cost. Accordingly, I am satisfied that in the context in which it appears in section 24AA, the word ‘substantially’ refers not to a large diversion of resources but merely to one of substance. 61.25 hours of Departmental employee’s time is a diversion of substance and, therefore, meets the threshold for a substantial diversion of resources.
I note for completeness that if I had concluded the term substantially conveyed a requirement for a ‘large’ diversion of resources, I would not have been satisfied that 61.25 hours met that requirement in the context of the resources available to Services Australia. ...
As noted above, the diversion of agency resources at 61.25 hours, is not insignificant. However, in the context of an agency which according to its 2018/2019 Annual Report has more than 28,000 employees and has devoted the equivalent of 66 full time employees to the processing of FOI requests, the diversion is less significant than it would be for a smaller agency. Processing the claim is well within the capacity of the agency with the resources it has available to it.
Second, the identity of the persons who will undertake the processing of the claim and the impact on the other work of the agency. I am satisfied that the bulk of the work in processing the claim will be done by the agency’s specialised FOI team. Some time will be spent by the line area, the Emergency Management Team, in locating the documents and in assisting the FOI team in relation to appropriate redactions to be made, but there is no evidence to suggest that the nature of the request is such that specific staff will be diverted from important work at critical times. These first two factors do not support the conclusion that the diversion of resources will be unreasonable.Saliently, yhe Department conceded that
additional information about the program will become publicly available as a consequence of the release of information in the form sought by the respondent. In circumstances where no less burdensome alternative that would yield the same information has been identified, I am not willing to cast upon the respondent any obligation to be more accommodating. One of the benefits of the FOI Act is that it allows citizens to get access to information that they want, not only information that agencies want them to access. It is not legitimate to characterise a person as unco-operative merely because they failed to explore or agree to a process which was less burdensome but also less revealing. The approach taken by the respondent does not support a conclusion that the diversion of resources is unreasonable.
Fourth, whether there is a significant public interest in the documents requested. In circumstances where I am satisfied that this FOI request can be processed using the existing resources of the agency and without significant diversion from the non-FOI work of the agency, I am not willing to assess stringently the public interest served by the release of the specific information which the applicant concedes will be brought to light by the release of the decision letters.
The release of the information will increase scrutiny and review of Government activities at least in the sense that more will be known about it. That serves the public interest in and of itself. In the present context I do not consider it appropriate for me to make a judgment about whether the particular information revealed about the AVTOP program has more general utility. In this circumstance, and I am sure in many other circumstances, that is not the kind of analysis which should be attempted. Once it is accepted that new information will come to light about a Government spending program, a public interest is served and that counts against a finding that the diversion of resources is unreasonable.
Fifth, other steps taken to publish information about the program. I accept that there is already a significant amount of information available in the public arena about AVTOP that has been willingly put there by the agency. Further, the amounts paid under the program are paid in accordance with quite specific legislative requirements. These matters diminish the extent to which the material produced in response to the FOI request can increase scrutiny, discussion, comment and review of the Government’s activities.
However, as [Farrell] rightly points out, there are dangers in allowing those who administer programs to control what information is released in relation to a program. It would be unfortunate if the more thorough scrutiny which the FOI Act provides for, could be avoided or diminished by an agency choosing to release material in a form that painted a favourable but not entirely representative picture of a program. Even though a considerable amount is known publicly about the AVTOP program, what is known has been chosen by the agency. Scrutiny is enhanced when a citizen can obtain ready access to information which the agency has not chosen to release. Once it is conceded that, as a result of the FOI request, more information will be available to the public, it would be a rare case where disclosure of other information about the same program would aid in establishing that the consequent diversion of resources was unreasonable.
