Guide to undertaking a formal consultation under s 24AB of the FOI Act

Section 24 of the Freedom of Information Act 1982 (Cth) (the Act) empowers agencies and Ministers to refuse a request for access to documents if a ‘practical refusal reason’ exists, provided that a request consultation process has first been undertaken (under s 24AA). It is designed to address situations where a request is too broad, time-consuming or vague, protecting an agency from having to process a request that would substantially disrupt its operations.

However, under s 24AB, such refusal is contingent on an agency giving an applicant a reasonable opportunity to revise a request before it is refused for a practical refusal reason. In this article we will give a step by step guide to assist in the undertaking a formal consultation.

Step One – Identify whether a practical refusal reason exists (s 24AA)

There are two grounds under s 24AA:

1.      Ground one – substantial and unreasonable diversion of resources  (s 24AA(1)(a)

The work involved in processing the request would substantially and unreasonable divert the resources of the agency from its operations. Both limbs must be satisfied, insofar as the diversion must be both substantial and unreasonable. Whether the request is both substantial and unreasonable required an assessment of the practical extent of the resources available to an agency. A large request may pose a significant challenge to a smaller agency, but the same request might be straightforwardly handled by a large agency with a dedicated FOI team.

2.      Ground two – Insufficient identification (s 24AA(1)(b)

A request that does not satisfy the identification of documents requirement in s 15(2)(b), that is, where the description is insufficient for a decision maker to identify the documents, is  a practical refusal reason, under s 24AA(1)(b).

In deciding whether a practical refusal reason exists, you must not have regard to the reasons the applicant gives for request access, the agency’s belief for requesting access, or any maximum charge amount specified in the regulations. The assessment must be purely about workload and document identification – not motive. It is also important to note that an agency may treat two or more requests as a single request if satisfied that the requests relate to the same document or documents, or that the subject matter is substantially the same (s 24(2)).

Step Two: Undertake the request consultation process – issue s 24AB notice

A request cannot simply be refused to be processed.  Agencies and ministers cannot tell an applicant the request is invalid and refuse to deal with it – the consultation process must be undertaken first.

An applicant must be given a written notice stating (s 24AB(2)):

• the intention to refuse the request
• the practical refusal reason
• the name of a contact officer with whom the applicant may consult
• details of how to contact that officer, and
• that consultation period is 14 days from the day the applicant receives the notice.

Issuing the notice pauses the clock – the statutory time frame of 30 days is suspended during this period.

Step Three: Assist the applicant to revise their request (s 24AB(3)-(4))

If the applicant contacts the nominated officer with the 14 days consultation period, the nominated officer must take reasonable steps to assist the applicant to revise the request, so the practical refusal reasons no longer exists. This include giving the applicant a reasonable opportunity to consult and provide any information that would help them revise their request.

Please note, the consultation period may be extended with the applicant’s written agreement.

Step Four: Applicant must respond in writing (s 24B(6)-(7))

Before the end of the consultation period, the applicant must notify the respective agency in writing that they wish to:

• revise their request
• maintain it as is, or
• withdraw it.

If the applicant does not contact the officer during the consultation period, the request is taken to have been withdrawn at the end of that period. This process should be documented carefully.

Step Five: Make your decision (s 24(1)(b))

After the consultation process concludes, if an agency remains satisfied that a practical refusal reason still exists, may refuse access to the documents in accordance with s 24 of the FOI Act.  If the applicant has adequately revised the scope such that the practical refusal no longer applies, the request should be processed under the revised rights.

Any decision must be accompanied by a statement of reasons under s 26, addressing the findings of fact and the applicant’s review rights.

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