Page:Patrick v Australian Information Commissioner (FCAFC).pdf/18

 57 It should be noted that, as the respondent submitted, the right to access material of an agency is not unqualified. The right is qualified in at least two ways: it is "subject to this Act", and the right does not extend to exempt documents: FOI Act s 11(1)(a).

58 That said, the precise description of the right reflects a difference without a distinction. Although there must be a focus on the application in question, being the review application, the focus must be against the background of the scheme of the FOI Act which includes the (qualified) right to documents.

59 Finally, whether a delay is unreasonable is a binary decision; the assessment admits of only one right answer. It is accepted by the parties that it is necessary for this Court to decide whether delay was unreasonable and whether the primary judge's reasoning is in that regard correct: SZVFW at [18], [20], [56]–[57]. It is also accepted that in this case the assessment is to be done based on the fact finding of the primary judge, as no factual findings are challenged. Moreover, it is also to be conducted in a context where the only basis for unreasonableness relied on in the appeal are various periods of time where there is said to be a lack of activity in the conduct of the review. The corollary of that is that there is no suggestion that there is any unreasonableness based on decisions made during the IC review process, nor any suggestion of irrationality in those decisions. For example, there are instances where in a review time is taken because the agency informed the Office of Information Commissioner that it intended to issue a revised decision (see, e.g., PJ [100], [112], [119], [166], [169]–[170], [177]), that agencies requested extensions of time to provide material (see, e.g., PJ [98], [111], [119], [122]–[123], [126], [136], [153], [160], [165]–[171], [177]–[178]) and arrangements needed to be made to enable secure material to be appropriately handled (for example, PJ [121], [138]–[139]).

60 Although the appellant submitted in relation to some IC reviews that the AIC failed to progress the matter such that it resulted in unreasonable delay, there is no challenge to the primary judge's conclusions as to how the AIC handled such issues. Similarly, but importantly, there is no challenge to the decisions made by the Information Commissioner as to the allocation of resources. There is no suggestion that those decisions were unreasonable or irrational.

61 In this context it is also appropriate to recognise that it is the overall delay in the conduct of the review that is in issue, not the individual delays. That is because, as accepted by the appellant, the issue to which s 7(1) of the ADJR Act directs attention is whether there has been unreasonable delay in making a decision, not whether there have been particular delays in components of the review processes. Patrick v Australian Information Commissioner [2024] FCAFC 93