Case note: 'BCG' and Attorney-General's Department (Freedom of information)

'BCG' and Attorney-General's Department (Freedom of information) [2026] AICmr 98 (9 October 2026)

This recent decision of Justin Lodge, Acting General Manager Freedom of Information Case Management, delegate of the Information Commissioner, (the Delegate) discusses the application of s 24A of the FOI Act.

In this matter, the Office of the Australian Information Commissioner (OAIC) affirms the Attorney-General’s Department’s (the Department) decision to refuse the Applicant’s request for certain documents, on the grounds that all reasonable steps had been taken to find the documents, and the documents cannot be found or do not exist.

This case provides a useful reminder of what sort of evidence an agency may consider providing in Information Commissioner (IC) review proceedings regarding a decision under s 24A of the FOI Act, to refuse access to a document on the grounds that all reasonable steps to locate documents within the scope of the request and the requested documents cannot be found or do not exist.

Background

On 6 August 2024, the Applicant made an FOI request to the Department, seeking certain documents relating to Australian citizen participation in a foreign military.   

The time period of the request was from 1 January 2022 to 6 August 2024.

On 19 December 2024, noting that the decision was made out of time and was therefore a deemed refusal, the Department made a purported decision to refuse access to the request under s 24A of the FOI Act, as it was satisfied that the documents sought could not be found or did not exist.

On 28 January 2025, the Applicant sought Information Commissioner Review (IC review).

The issue to be decided in this IC review was whether the Department had taken all reasonable step to identify documents within the scope of the request in finding that the documents could not be found or did not exist.

Section 24A – Request may be refused if documents cannot be found or do not exist

Section 24A of the FOI Act requires agencies to take ’all reasonable steps’ to find a requested document sought prior to finding that the document cannot be found or does not exist.

The Department’s submissions

The Department submitted that all reasonable searches within relevant branches had been undertaken. The Department submitted that relevant Department branches (being the Security Law and Policy Branch (the SLPB) and the Office of International Law (the OIL) had undertaken comprehensive searches for documents within the scope of the Applicant’s request.

While the searches done by the branches had identified a large number of documents containing key terms from the Applicant’s request, upon further examination of the documents, the Department was satisfied that the documents located did not actually fall within either part of the Applicant’s request.

Following the commencement of the IC review, the Department undertook further searches using further relevant search terms. Similarly, no documents within scope of the Applicant’s request were located.

The Applicant’s submissions

The Applicant submitted that, the searches undertaken by the Department were inconsistent with the ’reasonable steps’ set out in s 24A of the FOI Act because of the following:

• the Department initially sought refusal of the request due to the ’substantial and unreasonable diversion of resources’ where the Department identified over 1,000 potential documents.
• the Applicant submitted that ’it is improbable that the Security Law and Policy Branch and the Office of International Law did not identify any relevant documents’ noting that legal advice on foreign excursions is a responsibility of the Department branches that undertook the searches.
• The Applicant further submitted that the Department ’has taken a narrow interpretation of the scope and excluded documents relevant to the subject matter of the request’.

Consideration

The Delegate noted that the Department has provided fulsome details of all the searches undertaken, including:

• the dates searches were undertaken
• the business areas who undertook the searches
• the locations searched (and reasons why irrelevant locations were not searches)
• the search terms used, and
• the outcomes of the searches undertaken.

The Delegate referred to the matter of Barot and Secretary, Department of Home Affairs (Freedom of Information) [2025] ARTA 1798 (16 September 2025) (Barot) where the Tribunal ’emphasised the importance of accurately scoping the request in determining whether the test under s 24A has been met’.

The Delegate considered the Applicant’s request and the evidence of the Department’s searches to date and was satisfied that the Department has correctly interpreted the scope of the revised request for the purpose of conducting its searches.

Further, the Delegate had accepted that the Department had taken all reasonable steps to locate documents within the scope of the Applicant’s request, because the Department had explained where the relevant material would be held (the PDMS or Content Manager), had undertaken multiple searches of relevant locations using appropriately broad terms , and had explained why the material identified did not in fact fall within the scope of the Applicant’s request.

The Delegate therefore found that the Department had taken all reasonable steps to locate documents relevant to the Applicant’s access request. The Delegate was therefore satisfied that the documents could not be found or did not exist

Key takeaways

• Agencies should ensure that they have accurately interpreted a request when seeking to rely upon s 24A of the FOI Act. If a request has been in accurately interpreted or scoped, it may be difficult to establish that all reasonable searches have been conducted to locate documents within the scope of an Applicant’s request.
• As in this case, Agencies should make sure that there is fulsome evidence of all searches made, including locations searched and keywords used.

If your agency requires advice or assistance with the processing of FOI requests, or managing IC review matters, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.