08 September 2026
5 min read
#Government, #Australian Government, #Administrative Law
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When assessing whether to refuse a Freedom of Information (FOI) request, agencies do not need to apply a ‘one size fits all’ approach. Rather, it is important to take into account the nature of the records, the expertise required to review them and the genuine resource impact on the agency.
The Information Commissioner’s recent decision in ’BBP’ and Department of Foreign Affairs and Trade (Freedom of Information) [2026] AICmr 74 demonstrates that a claim of processing burden is more likely to be accepted where the estimate is transparent, supported by sampling and linked to the actual complexity of reviewing, redacting and deciding upon the documents.
The case concerned whether the Department of Foreign Affairs and Trade (DFAT) could refuse a FOI request on the basis that processing the request would unreasonably divert agency resources from its other operations under section 24AA(1)(a)(i) of the Freedom of Information Act 1982 (Cth) (FOI Act), and whether its estimate of processing time was reasonable.
The applicant sought access to:
After receiving a practical refusal notice, the applicant narrowed their request by removing the second category relating to personal data. DFAT nevertheless maintained that a practical refusal reason existed and estimated that processing the revised request would require approximately 113.75 hours. It therefore refused access under section 24AA(1)(a)(i) of the FOI Act.
The applicant challenged both the consultation process and DFAT’s assessment of the processing burden.
Central to the matter was whether DFAT’s estimate of 113.75 hours was a reasonable assessment of the work required to process the request. The Commissioner accepted the estimate and found that DFAT provided a sound basis for concluding that a practical refusal reason existed.
DFAT’s estimate comprised a calculation of:
The estimates were based on a sampling process and related to 143 documents comprising 1,152 pages.
The Commissioner accepted DFAT’s estimate based on the evidence provided, including:
The decision demonstrates that agencies should explain how each component of an estimate has been calculated rather than relying on broad assertions that a request is burdensome.
The Commissioner accepted DFAT's estimate of approximately six minutes per page for examination and redaction activities. This was considered reasonable because the documents related to sanctions and international relations matters involving national security sensitivities.
Importantly, the Commissioner accepted DFAT’s evidence that the relevant sensitivities would not necessarily be apparent on a first reading and required review by both FOI officers and specialist subject matter experts.
This is a significant decision as it confirms that agencies may take into account requirement for specialist review, the sensitivity of information, the complexity of exemptions and the need to compare information with material already in the public domain, when calculating the work involved in processing an access request.
The applicant argued that some material had already been provided through administrative processes. The Commissioner rejected the suggestion that this materially reduced the review burden, noting that documents released administratively may still require a full exemption assessment under the FOI Act.
The Commissioner also accepted DFAT’s estimate could include time for preparing:
This reinforces that processing time is not limited to document review. Agencies may legitimately include all tasks listed in section 24AA(2), including decision preparation and notification activities.
This decision provides useful guidance on how agencies may calculate processing time when relying on a practical refusal reason under section 24AA. A reasonable estimate should:
The decision also highlights that complexity matters more than document volume when assessing processing burden. The Commissioner did not merely consider page numbers, but also considered the nature of the records, the involvement of specialist business areas, national security implications and the complexity of exempt assessment. The decision supports the view that highly sensitive records may justify longer review time where careful assessment is required.
Further, the Commissioner reaffirmed previous authority that a diversion of resources is substantial if it is “real or of substance” rather than necessarily “large”. The Commissioner concluded that 113.75 hours met this threshold.
Agencies assessing processing estimates under section 24AA should ensure their estimates are evidence-based and reflect the actual work required to process requests involving documents containing technical or sensitive material.
The decision suggests an agency’s processing estimate is more likely to be accepted where it:
If you have any questions regarding this article or the FOI response process, please get in touch with us here.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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