Case Note: Practical refusal and consultation obligations under s 24AB - 'BBP' and Department of Foreign Affairs and Trade (Freedom of information) [2026] AICmr 74

Authored by: Miriam Beattie and James Pratt

The Commissioner's decision: On 21 August 2026, Freedom of Information Commissioner Alice Linacre affirmed the internal review decision of the Department of Foreign Affairs and Trade (DFAT).  The Commissioner held that a practical refusal reason existed under s 24AA(1)(a)(i) of the Freedom of Information Act 1982 (Cth) (FOI Act) because processing the applicant's revised request would substantially and unreasonably divert DFAT's resources from its other operations.  The Commissioner was satisfied that DFAT had met its obligations under s 24AB(3) to take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer existed. 

Takeaway for other agencies: The decision acknowledges an inherent tension between an agency's obligation to assist an applicant to revise their request to remove any practical refusal reason outside of a 24AB consultation period and the obligation to make decisions within prescribed timeframes. The Commissioner provided practical guidance on managing this:  

• Evidence-based request consultation notices: The most efficient method for agencies to comply with the requirement to take reasonable steps under s 24AB(3) is to provide a consultation notice containing practical, evidence-based, suggestions to revise the request.  

• Contents of a best-practice notice: A comprehensive notice should set out: 

• details of the searches conducted and the reason why they were conducted (including keywords, teams/staff involved, and systems/locations searched);  

• what searches remain to be conducted;  

• the outcome of preliminary search results (number and nature of documents identified);  

• a breakdown of estimated processing time based on a representative sample; and  

• other relevant information, such as processing complexities, contextual background, or publicly available material.  

• Assistance to revise request: The following steps taken by DFAT were deemed sufficient by the Commissioner in satisfying 24AB(3): issuing a consultation notice including all the required information set out in s 24AB(2), providing the applicant with four ways to revise the request, determining through subject matter expert consultations that no further meaningful information could be provided prior to the primary decision and setting out further specific options to reduce the size of the request (such as limiting subject matter and date ranges). 

Other considerations: 

The Commissioner commented on several key legal and procedural principles regarding section 24AB and practical refusal grounds: 

• Duration of the consultation period: The formal request consultation period under s 24AB legally ends when the applicant responds in writing in accordance with s 24AB(6) (e.g., submitting a revised request). 

• Obligation to provide reasonable assistance outside consultation period: The Commissioner confirmed that agencies may be required to assist an applicant to revise their request (pursuant to s 24AB(3)) outside the consultation period (i.e. without the benefit of the processing time being suspended during the request consultation period). This requirement is balanced against s 24AB(9), which states that agencies are only obliged to undertake a request consultation process once. The Commissioner confirmed that while the obligation to take reasonable steps under s 24AB(3) is enlivened if the applicant contacts the contact person, the steps the agency has taken prior to that time are also relevant to whether they have taken reasonable steps.   

• Substantial diversion threshold: a diversion of 113.75 hours (for processing 1,152 pages), even for a large Commonwealth agency with a dedicated FOI Team like DFAT is ‘real or of substance’.  

• Complex document reviews: An estimate of 6 minutes per page to process complex and sensitive material can be reasonable in certain circumstances, such as where there might be national security implications.  

• FOI access vs. administrative access: Agencies may maintain FOI exemptions (including for draft documents) even for material previously provided under other processes. 

Background: On 17 March 2023, the applicant requested all materials relating to their autonomous sanctions designation (Item 1) and any other personal data held (Item 2). DFAT issued a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(a)(i) because processing the request would amount to a substantial diversion of resources.  The notice included four ways for the applicant to revise the scope of their request. The applicant revised the scope in accordance with one of DFAT’s suggestions by removing Item 2.  DFAT refused the revised request on the same grounds set out in its original 24AB notice and affirmed this decision on internal review.   On 20 September 2023, the applicant applied for Information Commissioner review on the grounds that (a) a practical refusal reason did not exist; (b) the 24AB notice did not meet the statutory requirements and reasonable steps were not taken to assist to revise scope; and (c) the refusal was not valid because there was no request for consultation process.