Recent practical refusals before the Information Commissioner

We’ve recently seen a series of decisions from the Information Commissioner (IC) which relate to the practical refusal provisions under ss 24AA and 24AB of the Freedom of Information Act 1982 (FOI Act).

Practical Refusal 101

It is open to an agency or minister to refuse a request following a consultation process under s 24 of the FOI Act, if one or more ‘practical refusal reasons’ exist (see paragraph [1.18] of the FOI Guidelines).

A practical refusal reason can exist if one or both of the following circumstances arise:

• The FOI request does not sufficiently identify the requested documents, such that the identification requirements under s 15(2)(b) are satisfied, those being that enough information has been provided by the FOI applicant that a reasonable officer of the agency or minister could identify the document/s being requested (s 24AA(1)(b)). This is often referred to as the ‘unclear’ practical refusal reason.
• The work involved in processing the FOI request would substantially and unreasonably divert the resources of the agency from its other operations, or in the case of the minister, their functions (s 24AA(1)(a)(i) or (ii)). This is often referred to as the ‘voluminous’ practical refusal reason.

In respect of the unclear practical refusal reason, paragraphs [3.194] - [3.196] of the FOI Guidelines reiterate that this ground should only be relied on following a full and proper consultation process and that the decision maker should ensure that any request is read fairly and reasonably, avoiding taking a too narrow or pedantic approach to the interpretation of the request (see Re Anderson and AFP [1986] AATA 79; ‘BI’ and Professional Services Review [2014] AICmr 20).

The FOI Guidelines state at paragraphs [3.54] - [3.55] that an FOI Applicant is not expected to know the exact document storage, or naming conventions of an agency and that although an FOI request needs to be made in respect of ‘documents’ rather than ‘information’, it will often be the case that an FOI request is phrased in a way that seeks access to a document which contains certain information. In simple terms, this means putting on our ‘Joe Bloggs Hat’ and ensuring that you are not placing unreasonable expectations on an FOI Applicant to describe the exact document name, or category of document that they are seeking access to.

In respect of the voluminous practical refusal reason, the FOI Guidelines helpfully provide at paragraph [3.193] that, alongside an accurate time estimate, the decision maker must feel ‘an actual persuasion’ that the request is voluminous, as follows:

The requirement for an agency or minister to be ‘satisfied’ for the purposes of s 24(1) means that not only must there be a mathematical calculation as to the hours involved in processing the FOI request, but also that the decision-maker genuinely believes that the work involved in processing the request would substantially and unreasonably divert the agency’s resources from its other operations (or unreasonably interfere with the performance of a minister’s functions). This means that the decision-maker must feel an actual persuasion that the relevant practical refusal reason exists before refusing the FOI request. (footnotes omitted)

Below, we have categorised the recent IC decisions in respect of practical refusals:

Referred for processing with Parties’ agreement

The following practical refusal decisions have been set aside on the basis that the agency no longer presses that a practical refusal reason exists.

The practical effect of these decisions is that the reviewable decision has been set aside, and the agency is now required to process the FOI request.

• Steve O'Reilly and Department of the Treasury (Freedom of information) [2025] AICmr 163 (12 September 2025)
• Crispin Rovere and Australian Federal Police (Freedom of information) [2025] AICmr 174 (9 October 2025)
• 'AYS' and Department of Home Affairs (Freedom of information) [2025] AICmr 179 (7 November 2025)
• General Aviation & Airports Association and Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts (Freedom of information) [2025] AICmr 180 (7 November 2025)
• Australian News Channel Pty Ltd and eSafety Commissioner (Freedom of information) [2025] AICmr 178 (31 October 2025)
• Vercorp and Ors and Australian Taxation Office (Freedom of information) [2025] AICmr 176 (24 October 2025)
• Joshua Brown and Department of Home Affairs (Freedom of information) [2025] AICmr 170 (17 September 2025)
• 'AYO' and Department of Home Affairs (Freedom of information) [2025] AICmr 168 (12 September 2025)

Parties agreed to a revised scope during IC proceedings

In the recent decision of Australian and Department of the Prime Minister and Cabinet (Freedom of information) [2025] AICmr 157 (26 August 2025), the parties agreed to a revised scope which resolved the practical refusal reason.

Other decisions recent decisions where revised scopes have been reached include 'AYC' and Department of Industry, Science and Resources (Freedom of information) [2025] AICmr 148 (7 August 2025) and 'AVW' and Department of Home Affairs (Freedom of information) [2025] AICmr 92 (16 May 2025).

These requests (on the revised scopes) were referred back to the relevant Agency for processing and the applicants will then have subsequent review rights to pursue the merits of that access decision once it has been made.

Practical Refusal reason affirmed

In the recent decision of 'AYT' and Department of Health, Disability and Ageing (Freedom of information) [2025] AICmr 182 (10 November 2025), the IC affirmed the practical refusal reason.

Following a consultation process and subsequent revisions of scope, the Department claimed that the processing of the Applicant’s revised request was estimated to require 6,338 hours of processing time and was estimated to capture:

• 83,721 documents (equalling 89,207 pages) in relation to category 3 requiring consultation with 40 third parties, and
• 13 documents (equalling 1,920 pages) in relation to categories 1, 2, and 4 requiring consultation with 1 third party.

Following a review of the parties’ various submissions and evidence, including a consideration of the document samples provided by the Department, the IC was satisfied that a practical refusal reason under sections 24AA(1)(a)(i) and 24(1)(b) of the FOI Act existed, and that processing the Applicant’s request would constitute a substantial and unreasonable diversion of the Agency’s resources from its other operations.

You can read our full article on this decision here, which includes some very helpful commentary on consultation requirements and discussion of the concept of ‘unreasonableness’ in the context of a practical refusal decision: click here.

So, what should agencies be thinking about when a practical refusal decision progresses to the IC?

It’s a reality of the FOI Act that sensitivities and positions in respect of processing often change with the passing of time. That’s why we always recommend that agencies approach all external review matters with a fresh set of eyes, as soon as possible after receiving an IC review notification. If a matter can be resolved early in the IC review process, this is preferable for all parties involved and the OAIC’s resources. This approach to litigation also aligns with the Commonwealth’s Model Litigant obligations.

In deciding whether an agency should continue to press a practical refusal reason before the IC or Administrative Review Tribunal (ART), we recommend consideration of the following questions:

• Can the parties, through further facilitated IC consultation, seek to resolve the proceedings?  
  • It can often be helpful at the early stage of an IC review process to undertake a further consultation process, which poses specific questions about the kinds of documents, or breadth of scope being sought by the FOI Applicant.
  • It can also be helpful to propose one or more scopes that the agency considers are able to be processed (and subsequently resolve the practical reason reason.) See [3.8] of the IC’s Direction as to certain procedures to be followed by agencies and ministers in IC reviews (July 2024).
• Has the passing of time changed the agency’s position in relation to the practical refusal reason?
  • Upon further review of the request at this new point in time, can a reasonable interpretation (plain language reading) be made and the request could be processed?
  • Is the agency still comfortable relying on one, or both practical refusal grounds?
  • If the agency’s position has changed, this should be communicated to the FOI applicant as soon as possible in any early engagement, and then again in submissions.
• If the parties reach a revision of scope that is able to be processed, is a 55G decision available to the agency? This can be a practical and pragmatic way to resolve the proceedings.

• Can the parties otherwise reach agreement to process the decision and resolve the IC review under s 55F of the FOI Act, rather than wait for the IC to progress to a final determination setting aside the practical refusal reason?

• Does the agency require an updated time estimate to file with the IC in support of a voluminous practical refusal reason (See paragraphs [3.209] – [3.211] of the FOI Guidelines for more guidance).

• If relying on the unclear practical refusal reason, is the agency able to file a statement from the relevant business area which articulates the reasons why the requested document/s cannot be sufficiently identified?

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!

Our team of FOI and information law specialists assist and advise agencies on all levels of FOI matters. This includes advising on the considerations and requirements of issuing a practical refusal reason at the initial decision phase, or maintaining a practical refusal claim before the IC or ART.

If your agency requires assistance in assessing this kind of matter, please reach out to Molly for a further discussion. We’d be happy to assist.