Case Note: 'AYT' and Department of Health, Disability and Ageing

'AYT’ and Department of Health, Disability and Ageing (Freedom of Information) [2025] AICmr 182[LH1] 

This IC review concerned whether a practical refusal reason existed in relation to a large and technical request seeking a variety of information relating to the approval and safety of three COVID-19 vaccines. The Department initiated a s 24AB consultation process, and after three attempts made by the applicant to narrow the scope, the Department of Health, Disability and Ageing (the Department) concluded that processing the revised request would still substantially and unreasonably divert its resources. The Freedom of Information Commissioner, Alice Linacre, agreed, affirming the decision under s 24(1)(b).

Background

In October 2022, the applicant sought access to a broad range of documents relating to the approval and safety of three COVID-19 vaccines. Over the course of a request consultation process under s 24AB, the applicant revised the request three times, eventually narrowing it to four categories:

1. the latest version of the risk management plan for one COVID-19 vaccine (category one)
2. the latest version of the Periodic Safety Update Report for that vaccine (category 2)
3. all ‘pharmacovigilance and risk minimisation activities’ (category 3), and
4. the first 10 evaluations of deaths reported for individuals under 40 involving that vaccine (category 4).

The Department refused the revised request under ss 24 and 24AA(1)(a)(i), on the basis that processing it would substantially and unreasonably divert the Department’s resources from its other operations, estimating that the volume and complexity of material would require over 6,300 hours to process the revised request

The applicant submitted that processing their revised request would not substantially and unreasonably divert the Department’s resources from its other operations on the basis that the request consultation process was insufficient and the Department has not substantiated its practical refusal reason.

In determining whether the Department was entitled to refuse access for a practical refusal reason under s 24, the Commissioner noted that they were required to consider the following:

• whether a request consultation process has been undertaken in accordance with s 24AB of the FOI Act, and if so
• whether they were satisfied that the work involved in processing the applicant’s request would ‘substantially’ divert the resources of the agency from its other operations, and
• whether they were also satisfied that the work involved in processing the applicant’s request would ‘unreasonably’ divert the resources of the agency from its other operations.

Request consultation (s 24AB of the FOI Act)

For a request consultation process to have been undertaken for the purposes of s 24(1)(a) of the FOI Act, the applicant must have been notified in accordance with s 24AB(2) of the FOI Act.

The applicant submitted that the request consultation process was invalid as the Department named a ‘contact team’ rather than a contact person in the request consultation notice, the Department did not provide them with constructive alternatives for their request, and the Department provided contradictory estimates

The Commissioner accepted that the initial s 24AB notice did not strictly comply with the requirement to identify a specific contact person. However, this was resolved during the extended consultation period, as the applicant corresponded directly with identifiable departmental officers. The Department also provided detailed explanations of the material captured, the internal processes relevant to the request, and potential ways to narrow the scope. The Commissioner therefore ultimately found that a valid request consultation process was undertaken, for the s 24AB of the FOI Act.

Was there a substantial diversion of resources? (s 24AA)

The Department submitted that processing the revised request would require examination and redaction of at least:

• 83,721 documents (totalling89,207 pages) for category 3 of the applicant’s request
• 1,920 pages for categories 1, 2 and 4 of the applicant’s request

As noted above, the Department estimated that the volume and complexity of material would require over 6,300 hours to process the revised request

The Commissioner noted that the sampling undertaken by the Department supported the volume estimates. The Commissioner accepted that processing the request would involve a substantial diversion of Departmental resources.

Was the diversion unreasonable?

The applicant submitted that processing their revised request would not be an unreasonable diversion of the Department’s resources because there is a significant public interest in the material being sought and transparency about vaccines is integral to the Department’s statutory role.

While recognising the public interest in vaccine safety information, the Commissioner accepted the Department’s evidence that:

• processing the request would require the significant involvement of specialist Therapeutic Goods Administration staff, diverting them from core regulatory functions,
• substantial vaccine safety and efficacy information is already made available publicly through AusPARs, vaccine safety reports and the Database of Adverse Event Notifications, and
• the matter involved a very substantial diversion of resources (over 2,500 hours) that would divert the attention of specialist staff within the Department from their usual functions for a significant period. Given the magnitude of the processing burden, the Commissioner found the diversion would be unreasonable.

Conclusion

The Commissioner was satisfied that a practical refusal reason existed for the purposes of s 24AA(1)(a)(i), and that the Department was authorised under s 24(1)(b) to refuse access. The refusal decision was affirmed.

Key takeaways

1. An initially non-compliant consultation notice may still result in a valid consultation process if, in practice, the applicant is able to engage with identifiable officers and receives meaningful assistance.
2. Large requests supported by detailed sampling, page counts and time estimates are more likely to satisfy the substantial-diversion limb.
3. Requests capturing tens of thousands of pages may constitute a substantial diversion even before considering search or consultation tasks.
4. Even where subject matter and public interest may be significant, unmanageable processing burdens will remain unreasonable.

Lastly, don’t forget that the proposed changes to Schedule 3 in the FOI Amendment Bill (if passed), will significantly change the practical refusal space, by introducing a discretionary 40-hour processing cap for FOI requests. So watch this space!