LEX 56865

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Frankie (Position Number 62210799),
Information Access Officer, Information Access Unit, Client Access and Rehabilitation Branch,
Department of Veterans’ Affairs

Applicant:

Mr Arthur Jordan

Decision date:

19 April 2023

FOI reference number:
LEX 56865

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Jordan,
Freedom of Information Request: LEX 56865
Decision

1.  The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has not been able to identify any documents relevant to your request.

2.  For this reason, I have made a decision to refuse your request under 24A(1)(b)(i ) of the
Freedom of Information Act 1982 (FOI Act), as the documents do not exist.

Authority to make decision

3.  I, Frankie (Position Number 62210799), Information Access Officer, Information Access Unit,
Client Rehabilitation Access 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.
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Summary

4.  On 5 January 2023, you made a request for access to documents in the possession of the
Department. Your request sought access to:

‘…I request all inward facing documents on the combined library of information and
knowledge (CLIK)…’

This request is processed under the reference: LEX 55381.

5.  On 25 January 2023, the Department wrote to you providing a notice of intention to refuse
your request under section 24AB(2) of the FOI Act as your request was too broad and
voluminous to process. You were given an opportunity to consult with the Department to
revise your request so as to remove the practical refusal reason.

6.  A part of your email correspondence dated 1 February 2023, you were seeking to remove
the practical refusal decisions by stating the fol owing:

‘…A further way to resolve your issues raised is to seek a Table be produced in
accordance with Sec. 17 of the FOI Act, specifying the names and/or titles of ALL
inward facing documents in CLIK…’

7.  A practical refusal letter for LEX 55381 was sent to you on 10 February 2023, which
contained the following background information which addressed your comments in regards
to creating a list of ALL inward facing documents in CLIK under section 17 of the FOI Act.

8.  On 16 February 2023, you requested an internal review of the original decision – LEX 55381.
The internal review was processed under the reference: LEX 56160.

9.  The Department affirmed the original decision to refuse to process your request under
section 24 of the FOI Act on the basis that the work involved in processing your request
would substantial y and unreasonably divert the resources of this agency and that a practical
refusal reason therefore exists under section 24 of the FOI Act. A decision letter was sent to
you on 20 March 2023.

10.  On 21 March 2023, you advised over the phone that the Department did not address one of
your suggestions the refusal reason relating to the comments made by our Departmental
staff Luke Brown at the Administrative Appeals Tribunal (AAT hearing) concerning CLIK. At
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that point of time, it was uncertain which AAT hearings you referred. You advised you may
lodge a fresh request addressing this issue.

11.  On 25 March 2023, you made another request for access to documents in the possession of
the Department. Your request sought access to:

‘…Under FOI I request a list of all inward facing documents on the combined library of
information and knowledge (CLIK). A list that is prepared under S. 17 wil  be acceptable.
I do not require copies of any documents, just a list of the documents title names and
categories they are listed under…’

12.  On 27 March 2023, the Department acknowledged your request via email.

13.  As no extensions of time have been applied to process your request, a decision on your
request is due by 24 April 2023.

Material taken into account

14.  In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
refuse access to your request fol ows.

15.  I have taken the following material into account in making my decision:

  the terms of your request on 25 March 2023;

  your correspondence dated 1 February 2023, in response to the 24AB consultation
notice of the previous request LEX 53381;

  the FOI decision letters for LEX 53381 dated 10 February 2023 and internal review
decision for LEX 56160 dated 20 March 2023;

  phone conversation on 21 March 2023;

  the types of documents that are in the possession of the Department;

  my correspondence with different business areas within the Department;

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  the availability of information relevant to your request, including the practicality and
time required in which the Department may create a document under section 17 of
the FOI Act;

  Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:

-  Section 15      Request for Access;
- Section 17
Requests involving use of computers etc. (e.g. requests for the
Department to create a document)
-  Section 24A      Request may be refused if documents cannot be found or do not

exist

  Guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (FOI Guidelines).

16.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

17.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

a.  al  reasonable steps have been taken to find the 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.

18.  I am satisfied that al  reasonable steps have been taken to find information relevant to your
request, having regard to:

•  the terms of your request;

•  the subject matter of the documents;
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•  the current and past file management systems and the practice of orderly
destruction or removal of documents;

•  the Department’s record management systems and practices; and

•  the individuals and areas within the Department who may be able to assist with
the location of the information you seek access to.

19.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request. A description of the searches undertaken to locate the
documents which you are seeking to access is at Schedule 1.

20.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A(1)(b)(i ) of the FOI Act, on the basis that the
document do not exist.

Requests involving use of computers etc. (section 17)

21.  In making my decision to refuse your request I also considered the application of section 17
of the FOI Act and whether a document could be created to meet the terms of this part of
your request.

22.  Subject to section 17(1)(c)(i), I decided that the Department was not in a position to create a
written document via the use of a computer or other equipment that is ordinarily available
to the department for the purposes of retrieving or col ating stored information.

23.  Subject to section 17(2), I decided that the Department was not in a position to create a
written document, because to do so would substantial y and unreasonably divert the
resources of the Department from its other operations.

Your rights of review

24.  If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step to resolve any concerns you may have.

Internal review

25.  Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
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date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.

26.  You can make your application for Internal Review in one of the fol owing ways:

Post:
Information Access Unit,
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

OAIC review

27.  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

28.  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

29.  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
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Yours sincerely,

Frankie (Position Number 62210799)
Information Access Officer
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs

19 April 2023
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LEX 56865
Schedule 1

Summary of document searches

The Department undertook the fol owing investigations to determine if it is possible to create a list
of all inward facing documents on the combined library of information and knowledge (CLIK),
under section 17 of the FOI Act.

The team consulted Luke Brown directly about his comments that you referred to and details of
the AAT hearing that could assist us in determining some basis and more understandings on this
request. Luke advised that his comments about accessing inward facing documents in CLIK were
made for two AAT appeals which relate to a different third party. There is no evidence suggesting
that you have any direct relations to this third party individual and these AAT appeals. In addition,
Luke’s comments at these AAT hearings are not publicly available.

The Litigation team was also consulted to assist us in gathering more information about Luke’s
comments at the AAT appeals. Unfortunately it is not in that team’s position to provide us a copy
of the transcript of the hearings as there are strict requirements in terms of the use and
distribution of this material. As a result, Information Access Unit is not able to ascertain how
Luke’s comments at the AAT hearings of a third party individual can influence the creation of the
al inward facing documents in CLIK database in a list for the purpose of this request.

The Shared Services and Technology section within the Chief Operating Officer Division also
considered the scope of your request. Their views on this matter remains the same as the previous
decisions: request LEX 55381 and internal review LEX 56160, i.e. the work involved in creating a
full list of the inward facing documents from CLIK would substantial y and unreasonably divert the
resources of this agency. Therefore the requested document list of the inward-facing CLIK does
not exist and cannot be created.

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LEX 56865
Schedule 2

Schedule of relevant provisions in the FOI Act
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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 following:
  (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.

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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:
    a document of the agency; or


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).

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 conditional y 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 conditionally 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 conditionaly exempt document; and
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(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).

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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 of subsection 15(2) to an agency;
(b)
It appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba)
it does not appear from the request that the applicant wishes to be provided with a
computer tape or computer disk on which the information is recorded; and
(c)
the 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 the agency;
the 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 the agency
had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would substantial y and
unreasonably divert the resources of the agency from its other operations.

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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.
(see section 11A).

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 o r Minister may refuse a request for access to a document if:

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(a)  al  reasonable steps have been taken to find the document; and

(b)  the agency o r 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 the 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, 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).

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(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).

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Document Outline