LEX 58233
Response to Internal review request
Decision and reason for decision of Ramona (Position Number 62336362), Assistant Director,
Information Access Unit, Client Access and Rehabilitation Branch, Department of Veterans’
Affairs
Applicant:
Mr Alan Ashmore
Date of primary decision:
2 June 2023
FOI reference number (Primary): LEX 56478
Internal review decision date:
14 June 2023
Internal review reference number: LEX 58233
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Ashmore,
Freedom of Information Response to Internal review request: LEX 58233
Decision
1. The purpose of this letter is to give you a response on your request for internal review of LEX
56478 under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
2. I note the original decision made by Natalie (Position Number 62211022), Senior Information
Access Officer, Information Access Unit, Client Access Rehabilitation Branch to refuse your
request under section 24A(1)(b)(ii) of the FOI Act, as the documents do not exist.
Authority to make decision
3. I, Ramona (Position Number 62336362), Assistant Director, Information Access Unit, Client
Access Rehabilitation Branch, am an officer authorised by the Secretary of the Department
to make decisions about access to documents in the possession of the Department in
accordance with section 23(1) of the FOI Act.
1
Summary
Original Decision
4. On 6 March 2023, you made a request for access to the fol owing:
‘..
.I am seeking:
: Al documents, including internal emails, prior to the formal commencement of
reassessing relevant batches where excessive error rates are noted, and
: All documents, including internal emails, pertaining to the results of all reviews
undertaken as a result of Recommendation 9.3. .'
Background: -
Recommendation 9.3 of the Productivity Commission, June 2019 was, “if DVA’s
quality assurance processes identifies excessive error rates (for example, greater
than the Department’s internal targets), all claims in the batch which the sample
was obtained should be recalled for assessment.”
DVA’s response on their website noted, “Progressing,” then “the implementation of
this recommendation will involve on-going improvement…’
5. On 9 March 2023, the Department acknowledged your request via email.
6. As no extensions of time were applied to process your request, a decision on your request
was due by 5 April 2023.
7. In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request.
8. As a decision on your request was not made within the timeframe as prescribed in section
15(5)(b) of the FOI Act, Regulation 7(2) of the
Freedom of Information (Charges) Regulations
2019 prescribes that no charge is payable.
9. On 2 June 2023, the Department made a decision to refuse your request under section
24A(1)(b)(ii) of the
Freedom of Information Act 1982 (
FOI Act), as the documents do not
exist.
2
Internal Review
10. Before the decision on the request was made, you contacted the Department on 6 April
2023, requesting the fol owing:
‘…I note that DVA have not finalised this FOI request by 5 April 2023 as required by
law. In addition I did not agree to your request for an extension as noted in my
previous response.
I now ask that you expediate this request and thank you in advance…’
11. On 16 May 2023, you requested an internal review of the handling of this FOI request in the
following terms:
‘…Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Veterans' Affairs's
handling of my FOI request 'Quality of claims processing'.
As of today this request is 71 days old. Please expedite this request ASAP. I really
don't want to waste the time of getting Senator Lambie involved with this matter
but I will do so unless this FOI is quickly finalised…’
12. On 30 May 2023, you followed up on the above email as follows:
‘…I wrote the fol owing 14 days ago and stil NO response.
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Veterans' Affairs's
handling of my FOI request 'Quality of claims processing'.
As of today this request is 71 days old. Please expedite this request ASAP. I really
don't want to waste the time of getting Senator Lambie involved with this matter but
I will do so unless this FOI is quickly finalised…’
13. On 31 May 2023, the Department responded as fol ows:
‘…Thank you for your email below in relation to LEX 56478. On behalf of the
Department, I would like to apologise for the delay in replying.
The Department is actively processing your request and working on finalising it as
soon as possible.
3
As a decision wil be made shortly, could you please advise whether you no longer
require a review on your request?...’
14. The Department has not yet received a response in regard to withdrawing your internal
review request on the basis that the decision has now been finalised, and is therefore
proceeding with providing a response to your internal review request.
15. As no extension of time has been applied to process this internal review, a decision on your
internal review application is due by 15 June 2023.
16. I note you are not seeking a review of the decision made on the request, but rather, the
delay in providing the decision. Further, upon review of the original request, I affirm the
decision that documents in scope of your request do not exist in accordance with section
24A(1)(b)(ii) of the FOI Act.
17. I have reviewed how the request was processed, and acknowledge there was a significant
delay in finalising it, noting the scope, statutory timeframe and outcome following searches
for documents within scope of your request. We thank you for your continued patience as
the Department processed your request. On behalf of the Department, I sincerely apologise
for the delay in providing you with a decision, and any inconvenience it may have caused.
Your rights of review
18. If you are dissatisfied with the outcome of this review, you may apply for Information
Commissioner Review of the decision through the Office of the Australian Information
Commissioner (
OAIC).
OAIC review
19. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
4
20. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
21. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Ramona (Position Number 62336362)
Assistant Director
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs
14 June 2023
5
LEX 58233
Schedule 1
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
6
Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
17
Requests involving use of computers etc
(1)
Where:
(a)
a request (including a
request in relation to which
a practical refusal reason exists)
is made in accordance with the requirements o
f subsection 15(2) to an
agency;
7
(b)
It appears from the
request that the desire of th
e applicant is for information that
is not available in discrete form in writte
n documents of the
agency; and
(ba)
it does not appear from the
request that th
e applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
th
e agency could produce a written
document containing the information in
discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in th
e agency;
th
e agency shall deal with the
request as if it were
a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if th
e agency had such
a document in its possession.
(2)
An
agency is not required to comply wit
h subsection (1) if compliance would substantially and
unreasonably divert the resources of the
agency from its other operations.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
8
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
24A Requests may be refused if documents cannot be found, do not exist or have not been
received
Document lost or non-existent
(1) An
agency or
Minister may refus
e a request for access to a
document if:
(a) al reasonable steps have been taken to find th
e document; and
(b) the
agency or
Minister is satisfied that the
document:
(i) is in the
agency's or
Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An
agency may refuse a
request for access to
a document if:
(a) in order to comply with
section 6C, the
agency has taken contractual measures to ensure that it
receives th
e document; and
(b) the
agency has not received the
document; and
(c) the
agency has taken all reasonable steps to receive the
document in accordance with those
contractual measures.
26 Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
9
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
54C
Internal Review – decision on internal review
Scope
(1) This section applies if an application fo
r internal review o
f an access refusal decision or an
access grant
decision (the original decision ) is made in accordance with this Part.
Decision
(2) The
agency must, as soon as practicable, arrange for a person (other than the person who made
the original decision) to review the decision.
(3) The person must make a fresh decision on behalf of th
e agency within 30 days after the day on
which the application was received by, or on behalf of, th
e agency.
Notice of decision
(4)
Section 26 extends to a decision made under this section.
10
Document Outline
