FOI Update: How Far Should a Request Be Narrowed Before the Question Itself Disappears?

Health has asked me to narrow my COVID consent FOI again. I have agreed to give up more, but not the legal question at its centre.

There has been another development in the Freedom of Information request I have been pursuing since February 2026 concerning the Commonwealth Department of Health’s understanding of voluntary, informed, free, valid and un-coerced consent during the COVID-19 vaccination period.

For readers coming to this for the first time, my previous update sets out the earlier chronology, including the original request, the Department’s refusal and my application for review by the Office of the Australian Information Commissioner.

Update on my FOI Request: Why the Department of Health’s refusal on consent documents matters

Since then, the OAIC has formally commenced its review. Health has now contacted me as part of the process requiring the parties to engage and attempt to resolve or further narrow the dispute.

I am not publishing Health’s latest email in full. I think it is more appropriate to summarise its position accurately and provide my own response separately for anyone who wants to examine the detail.

This update is also not an attempt to decide in advance what the documents will show. I do not know, and that is precisely why I am asking for them.

What Health is now saying

Health says my request remains too large to process even after the narrowing already undertaken.

For the policy and briefing material still within Part 1, the Department says it identified 170 potentially relevant documents in one of its document systems. It sampled 17 of them, comprising 367 pages, and says 12 of those 17 were relevant. From that sample, Health estimates that approximately 120 documents totalling 2,580 pages may ultimately be relevant.

It estimates that processing this material would take approximately 262.5 hours, principally to examine the pages for exemptions and prepare them for release.

For Part 2, the legal-material component of the request, Health says a preliminary search has identified 57,724 potentially relevant documents.

Health has therefore suggested that I narrow the request again, including by confining the policy material to final documents associated with the Chief Medical Officer, reducing the four-year period to six months, and removing Legal Division documents altogether.

I have accepted part of that invitation, I have not accepted all of it.

How far the request has already moved

It is worth remembering where this began, my original request had four broad parts.

Part 1 sought policy, guidance and briefing material dealing with voluntary, informed, free, valid and un-coerced consent.

Part 2 sought legal and policy advice concerning those concepts, including whether the Department distinguished consent from compliance, and how incentives, penalties, restrictions or conditional access affected voluntariness.

Part 3 sought correspondence with bodies including AHPRA, the Medical Board of Australia and ATAGI concerning consent, voluntariness and coercion.

Part 4 sought communications or media guidance to Ministers and senior officials concerning language such as “choice”, “voluntariness” and “personal decision”. 

That original four-part structure is recorded in the Department’s own decision.

Much of that is no longer being pursued through this review. The broader communications component in Part 4 fell away during the earlier narrowing process.

I have now offered to remove Part 3 entirely, meaning this particular FOI will no longer pursue the Department’s correspondence with AHPRA, the Medical Board and ATAGI.

I have also agreed to restrict Part 1 to final approved policy and briefing material associated with the Chief Medical Officer, excluding drafts, working documents and duplicates.

The legal component has likewise been narrowed substantially. I am now seeking only tightly defined final legal material, provided to senior decision-makers, and only where it deals directly with consent, mandates, restrictions, compliance or the consequences attached to declining vaccination.

That is a very different request from the one with which I began.

What has been dropped has not become unimportant

There is a distinction here that I think matters. I have not removed Parts 3 and 4 because I concluded that the documents are unimportant. I have removed them from this particular proceeding because trying to preserve every investigative strand within one FOI risks losing the central policy and legal material altogether.

Part 3 could still answer an important question: what did Health discuss with AHPRA, the Medical Board and ATAGI about consent and voluntariness where mandates, employment consequences or other restrictions existed?

Part 4 raises another: what advice was given to Ministers and senior officials about publicly describing vaccination as voluntary, a choice or a personal decision while those consequences were operating?

Nothing about my narrowing of this FOI prevents another interested person from making a fresh, appropriately targeted request for those document categories, subject to the normal requirements and exemptions of the FOI Act.

In fact, treating those as separate questions may ultimately be a more effective way of pursuing them.

For this review, however, I have had to decide what question I am least willing to lose.

There is a reason I keep coming back to the question of consent. In February 2021, then Health Minister Greg Hunt said on ABC Insiders that the world was engaged in what he called “the largest global vaccination trial ever”, while also telling Australians the vaccines were safe and effective. Later that year, AMA Queensland President Professor Chris Perry spoke publicly about the practical consequences awaiting people who remained unvaccinated, including difficulty maintaining employment and participating in ordinary social life.

I include the following clip not to claim that these two statements, by themselves, establish that anyone’s consent was legally invalid. They do something more limited, and for the purpose of this FOI more important: they illustrate the tension I am trying to understand. What did voluntary and informed consent mean in practice when uncertainty was still being acknowledged at the same time that significant consequences could follow a decision not to be vaccinated?

That is why I am reluctant to remove the legal material from this request.

https://video.wixstatic.com/video/c4fcb0_26bea4262a8d4f7796017c2181e8dc00/1080p/mp4/file.mp4

Greg Hunt on ABC’s Insiders in February 2021, followed by AMA Queensland President Professor Chris Perry speaking on Nine’s Today later that year. I include these excerpts as context for the question underlying this FOI: how voluntary and informed consent was understood when uncertainty was still being acknowledged while significant practical consequences could accompany a decision not to be vaccinated.

Why I am keeping the legal material

For me, that is the legal component. The remaining question is not simply what government policy said. It is:

What legal reasoning informed the Department’s understanding of voluntary and informed consent when COVID-19 vaccination policy operated alongside mandates, employment requirements, restrictions and other consequences for declining vaccination?

Health has suggested removing Legal Division documents altogether, I have declined to do that at this stage. Particular documents may ultimately attract legal professional privilege under s 42 of the FOI Act. I accept that. But privilege is a question to be considered against the documents that are actually identified.

The OAIC’s own guidance recognises that legal professional privilege applies to some, but not all, communications involving legal advisers. For that reason, I have offered to narrow the search for legal material substantially rather than delete it altogether. That seems to me the more proportionate course.

There are also figures I have asked Health to explain

The latest Part 1 estimate differs considerably from the figures used in Health’s May internal-review decision.

At that time, the Department said it had identified 169 PDMS records containing 620 individual documents and 1,236 pages potentially relevant to Part 1. Following sampling, it estimated that approximately 679 pages would ultimately fall within scope.

The latest correspondence estimates 2,580 relevant pages, despite the request having since been narrowed further.

That does not establish that the new figure is wrong, there may be a straightforward explanation involving a different sample, a different document population, or a different use of the terms “record” and “document”. I have simply asked Health to reconcile the two.

The same applies to the 57,724 potentially relevant legal documents. The number is striking, but without knowing the search terms, repositories, filters, document types and whether drafts or duplicates were included, I cannot tell how closely that figure corresponds to the much narrower legal request now being proposed.

Again, I am not alleging improper conduct, I am asking how the number was produced.

Twelve documents offer a place to begin

There is one part of Health’s latest response that seems to offer a practical way forward.

The Department says that of the 17 Part 1 documents it sampled, 12 were found to be relevant.

Those 12 documents have therefore already been located and examined sufficiently for Health to determine that they fall within scope. I have asked the Department to process those 12 as a discrete first tranche, subject to whatever exemptions or redactions properly apply. It would not resolve the whole review, but it would mean the process begins producing documents rather than only producing estimates about documents.

My full response to Health

Rather than reproduce several pages of procedural argument here, I have made my full response available separately.

It sets out the precise scope I am now prepared to accept, why I have retained the Legal Division component, the questions I have asked about Health’s latest estimates, and my request that the 12 documents already identified as relevant be processed first.

Read my full response to the Department of Health, 3 September 2026

I have copied the OAIC into that correspondence so that my concessions and Health’s responses to the questions raised form part of the review record.

What happens next

Under the OAIC’s 28 July notice, Health had been due to provide its evidence and submissions supporting the practical-refusal decision by 8 September 2026.

Since I sent my response, however, the Department has asked the OAIC for a short extension to 30 September 2026. Health says the revised scope now requires further searches, including engagement with a different departmental line area, as well as further engagement with me before it can finalise its submissions and supporting evidence if a practical-refusal reason remains.

That extension is a matter for the OAIC to determine. I have been copied into the request, but I have not been asked to approve it.

I regard the reason given for the request as worth noting. One of the things I asked Health to do was test the substantially narrowed scope, particularly the legal-material component, through properly targeted searches before concluding that it remained unmanageable. The Department now says it is conducting further searches against that revised scope. What those searches produce remains to be seen.

If the extension is granted, Health’s eventual submission should provide the evidence supporting any continuing practical-refusal position. Under the OAIC process, I will then have 10 business days to provide my substantive response, so I do not regard my latest email to Health as the final word.

I have narrowed the request repeatedly because I am trying to make it capable of being processed while preserving the question that justified it in the first place.

The issue is not whether every FOI request must be processed regardless of scale, the harder question is where reasonable narrowing ends. If a request seeking the government’s reasoning must eventually surrender the legal reasoning itself in order to become processable, what exactly is left of the question the request was intended to answer?

For now, I am trying to preserve one thing:

When significant consequences could accompany a decision not to receive a COVID-19 vaccination, what policy and legal framework did the Commonwealth Department of Health rely upon in understanding that decision as voluntary and informed?

I still do not know the answer, and that is why I am continuing to ask.

Thanks for reading

God Bless

Mark