The applicant sought access to documents the DHS generated in response to a media request he made to them and a media article he wrote in the week before making the request.

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis that a practical refusal reason existed. They believed the request did not meet the identification requirements of s 15(2)(b) of the FOI Act (these require a request to supply enough information to enable the DHS to identify the document sought) and processing the request would substantially and unreasonably divert the DHS’s resources from their other operations (ss 24AA(1)(a)(i) and 24AA(1)(b) of the FOI Act).

The Information Commissioner was not satisfied that the request consultation notice fulfilled the requirements of s 24AB of the FOI Act, because it did not give the name of a contact person and how the applicant could contact this person, as s 24AB(2)(c) requires. Also, the Information Commissioner was not satisfied the DHS had taken reasonable steps to help the applicant to revise his request and remove the practical refusal reason (s 24AB(3) of the FOI Act). The DHS’s notice gave the applicant limited information to help him revise his request and from the applicant’s response it was apparent that he had concerns about the steps the DHS took to help him to revise the request.

The DHS also estimated it would take 238 hours to process the request. The Information Commissioner was not satisfied that the DHS discharged its onus to justify the estimated processing time. Also, the Information Commissioner was not satisfied that the DHS had proved that processing the request would substantially and unreasonably divert the DHS’s resources from its other operations.

The applicant sought access to meeting agendas, minutes and other notes for meetings held between the DHS and the Minister for Human Services or Minister for Social Services between 1 January 2016 and 31 December 2016.

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis a practical refusal reason existed. The DHS asserted that processing the request would substantially and unreasonably divert the DHS’s resources from its other operations (s 24AA(1)(a)(i)).

The Information Commissioner was not satisfied the DHS took reasonable steps to help the applicant revise the scope of his request to remove the practical refusal reason (s 24AB(3)). The applicant had tried to revise the request but was unsuccessful because he did not understand the terms the DHS used. The Information Commissioner said that where it is apparent that an applicant’s attempt to revise the scope of their request doesn’t remove the practical refusal reason, the contact person should consider whether they could take additional steps to help the applicant revise their request.

The DHS estimated it would take more than 130 hours to process the request because every branch of the DHS would need to conduct searches for the requested documents. During the IC review, the applicant indicated he would be willing to reduce the scope of his request in light of information the DHS supplied. The DHS then conducted searches within the revised scope and advised that they could not locate any documents. The Information Commissioner considered that when an applicant proposes a revised scope based on advice from the agency that results in no documents being found, unless there are compelling reasons not to, the agency should generally consult with the applicant about why no documents exist and help them to revise the scope of their request before making a decision about the request.

The applicant sought access to: ‘A copy of all communication, including emails, correspondence, phone calls, internal memos, sms and faxes between Child Support and Complex Assessment departments relating to me.’

On completing the request consultation process (s 24AB of the FOI Act), the DHS refused the applicant’s request on the basis a practical refusal reason existed. The DHS asserted the request didn’t meet the identification requirements of s 15(2)(b) of the FOI Act (s 24AA(1)(b) of the FOI Act).

The Information Commissioner considered whether the agency had followed the request consultation process under s 24AB of the FOI Act. The Information Commissioner was not satisfied that the DHS had taken reasonable steps to help the applicant revise the scope of the request to remove the practical refusal reason (s 24AB(3). The applicant tried to revise the scope of the request based on the information the DHS supplied. The DHS had a very particular approach to interpreting terms the applicant used in the revised request such as ‘relating to’ and ‘including’. The Information Commissioner said that where an agency or minister takes a very particular approach to interpreting terms an applicant uses, it may be difficult for an applicant to revise the scope of a request to remove the practical refusal reason without the agency or minister suggesting what would be a reasonable request in the circumstances. The Information Commissioner noted that the DHS proposed a revised scope of the request at the start of the IC review and it appeared that this scope could have been proposed during the request consultation process.

The Information Commissioner noted that the FOI Guidelines explain that an agency or minister must read a document request fairly, being mindful not to take a narrow or pedantic approach to its construction. The Information Commissioner was satisfied that the applicant had supplied sufficient information for the DHS to identify the documents sought (s 15(2)(b) of the FOI Act).

This is the first IC review decision to consider the application of s 46 of the FOI Act (where the disclosure of the requested documents would be a contempt of Parliament or a Court).

The applicant sought access to documents, including CCTV footage, related to an incident in the Parliament House precinct. The exemption under s46(c) of the FOI Act was applied on a basis that disclosure would infringe parliamentary privilege.

The FOI Guidelines explain that the term ‘parliamentary privilege’ refers to the privileges or immunities of the Houses of the Parliament, and the powers of the Houses to protect the integrity of their processes. The use of CCTV footage captured by the Parliament House CCTV system is subject to a code which restricts viewing, storing, accessing, releasing and disposing of CCTV footage without the approval of the President of the Senate and the Speaker of the House of Representatives (Presiding Officers).

The Information Commissioner also considered s 6 of the Parliamentary Precincts Act 1988, which states that the parliamentary precincts are under the control and management of the Presiding Officers. Given the authority of the Presiding Officers under the Parliamentary Precincts Act 1988 and their endorsement of the code, the Information Commissioner considered the code amounts to a rule of the Houses of Parliament that restricts the use and disclosure of CCTV footage captured in the parliamentary precincts and the act of disclosing CCTV footage contrary to the code would infringe parliamentary privilege.

The Information Commissioner was satisfied that conduct which improperly interfered with the free exercise by the House of Parliament of its authority or functions, such as the contravention of a rule or order of a House of Parliament, may constitute contempt of the parliament and infringe the privileges of the parliament.

The Information Commissioner affirmed the decision refusing access to the CCTV footage.

We have updated paragraphs 5.188 to 5.195 of the FOI Guidelines to refer to this decision.

The applicant applied to the Minister for Resources and Northern Australia for access to diary entries relating to the National Radioactive Waste Management Facility at Kimba and Hawker. The Minister refused the request under s 24A of the FOI Act because no ‘diary entries’ exist.

During the IC review, the Minister’s office accepted that the term ‘diary’ included electronic calendars and other email calendars and schedules. The Minister’s office subsequently indicated the Minister was willing to process the request because the scope of the applicant’s request included the Minister’s electronic email calendars and schedules.

The Information Commissioner was satisfied that documents within the scope of the applicant’s request did exist.

‘PW’ was the subject of a vexatious applicant declaration made by a former Information Commissioner which expired on 3 June 2017. Between 26 July 2017 and 5 July 2018, PW engaged in a further 28 access actions.

In deciding whether to make the declaration, the Information Commissioner considered whether the agency had used other provisions in the FOI Act to lessen the impact of PW’s access actions on its operations and whether deficiencies in the agency’s FOI administration had contributed to the respondent’s access actions. This included: the impact of PW’s access actions on the agency’s other work, the size of the agency, the resources the agency could reasonably allocate to FOI processing, the impact PW’s access actions had on FOI administration in the agency and whether PW had cooperated reasonably with the agency to enable efficient FOI processing.

The Information Commissioner had regard to the parties’ submissions and was satisfied the agency had established that PW had repeatedly engaged in access actions that involved an abuse of process by unreasonably interfering with the agency’s operations.

The Information Commissioner decided that a declaration for three years was appropriate in circumstances where the respondent had previously been declared vexatious.