FOI is perhaps the most widely known government accountability and transparency mechanism in Australia. FOI provides a legal framework for individuals to request access to government documents.

Australians are well aware of the ability to obtain information under the Freedom of Information Act 1982 (Cth) (FOI Act) but what happens when a FOI request is so large that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations?

The recent case of ‘AVE’ and Department of the Prime Minister and Cabinet (Freedom of information) [2025] AICmr 69 (17 April 2025) (AVE) dealt with this situation. In this case, ‘AVE’ (the Applicant) was seeking (at [3]):

... A copy of all internal departmental documentation (including but not limited to “memos”, emails, letters, transcripts, meeting minutes, advice (policy and legal), general correspondence, etc) received or sent by the [then] Prime Minister Scott Morrison, and, the Secretary Philip Gaetjens, regarding or mentioning “National Cabinet” during the calendar period of 31 December 2019 to 13 May 2020 (inclusive).

The Department of the Prime Minister and Cabinet (the Department) advised the Applicant (via a consultation notice under s 24AB of the FOI Act) that it intended to refuse access on the basis that processing the request would ‘substantially and unreasonably divert the resources of the Department from its other operations’.

After contact with the Department, the Applicant then reduced the date scope from 31 December 2019 to 13 May 2020 (inclusive) to 13 April 2020 and 13 May 2020. The Department refused the amended request on the basis of the resources needed to process it. The Department asserted that this was a ‘practical refusal reason’ that was authorised by s 24AA(1)(a)(i) of the FOI Act.

However, before the Australian Information Commissioner, by their delegate (delegate), considered whether a practical refusal reason existed, the delegate first considered whether a ‘request consultation process’ had been undertaken in accordance with s 24AB of the FOI Act (at [11]). In this regard, the Applicant asserted that the Department had failed to take reasonable steps to assist the Applicant to reduce the scope of the request (at [13]).

The delegate considered the steps the Department had taken to assist the Applicant to reduce the scope of their request, which included (at [14]-[16]):

1. Liaising with the Applicant by email and telephone on 3 occasions
2. Making suggestions about how to reduce the scope
3. Suggesting how to clarify the scope of the request including how to limit the request by requesting only information related to COVID-19 or reducing the time period contained within the request
4. Providing the Applicant with information about the large number of documents that an initial search had discovered (1992) and the conservative estimate of time that it would take to process the request (248 hours)
5. Advising the Applicant that if the request could not be narrowed further, even if the time period was limited to one month, then it could still be refused.

Having regard to steps taken by the Department, the delegate found that a ‘valid request consultation process was undertaken’ (at [17]).

The delegate subsequently considered whether the work involved in processing the Applicant’s request would substantially and unreasonably divert the resources of the Department from its other operations (at [21]-[38]) Having done so, the delegate was satisfied that the Department had established that a practical refusal reason existed for the purposes of s 24(1)(b) of the FOI Act and that the Department was therefore authorised to refuse access to the documents in accordance with the request (at [39]).

Summary

When an Australian Government agency is considering a FOI request it must notify the applicant (in accordance with s 24AB(2) of the FOI Act) if it is likely to refuse the request and the practical refusal reason, for example, that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations (under s 24AA(1)(a)(i) of the FOI Act).

If the applicant contacts the agency after that notification, the agency must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists (as required by s 24AB(3) of the FOI Act).

In the case of AVE, the assistance provided (which was found to be reasonable) included:

1. Telephone and email communication on multiple occasions
2. Suggestions on reducing the scope including reducing the time period and reducing the number of documents by specifying a topic
3. Advising the Applicant of how many documents the initial review had revealed and providing an estimation of the time needed to process them.

Each FOI request is likely to be unique. The consultation and assistance required to revise a request during a request consultation process will therefore vary. For example, it might also be too onerous for an agency to take all the steps taken in AVE. If a FOI request asked for all of the agency’s records within a 4-year period, then the agency might not need to provide an estimate of how long it would take to process that request if the number of documents alone would substantially and unreasonably divert the resources of the agency from its other operations.

The case of AVE does however provide a useful indication of what is likely to be sufficient in terms of consultation on a large FOI request.

Further information / assistance regarding the issues raised in this article is available from the authors, Anne Wood, Partner and Brenton Oakley, Special Counsel or your usual contact at Moray & Agnew.