4 May 2023
Our Reference: 2023/796
Bertha Binderschmitt
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Binderschmitt,
Notice of intention to refuse – request consultation process
I refer to your request to Comcare dated 27 March 2023, seeking access under the
Freedom of
Information Act 1982 (the
FOI Act) to:
…all emails, correspondence, and reports exchanged between Comcare Inspectorate
employees and the NDIS Quality and Safeguards Commission's HR department or current
Senior Executive Service (SES) officers, as wel as former COO Mr. Jason Stott, former
Commissioner Graham Head, and former Registrar/Advisor to the Commissioner Samantha
Taylor.
The request pertains to communications from 1 July 2019 to today, 27 March 2023,
concerning areas of concern within Comcare's area of responsibility, as wel as any
documentation relating to Comcare compliance action against the Commission, if applicable.
For clarity, the areas of concern may include, but are not limited to, the fol owing examples
of Comcare's Inspectorate responsibilities over an Australian Public Service (APS) agency, as
outlined on the Comcare website:
Monitoring and enforcing compliance with the Work Health and Safety Act 2011 (Cth)
Providing advice and guidance on work health and safety matters
Investigating workplace incidents
Undertaking workplace inspections
Please note that the above examples are not an exhaustive list, and my request covers any
other areas of concern within Comcare's jurisdiction. Moreover, I am not requesting any
personal or private information of individual claimants, nor am I seeking any correspondence
that pertains to specific claim data.
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On 30 March 2023, in response to my email, you further clarified the scope of your request as
follows:
To help facilitate the search for the requested documents, I am seeking correspondence from
any Comcare Inspectorate employees to the fol owing NDIS Quality and Safeguards
Commission's SES officers, including their respective titles during the requested period:
Jason Gary Stott - COO
Lisa Claire Pulko - COO
Samantha Jane Taylor - Registrar, Acting Commissioner and advisor to the Commissioner.
Jeffrey Beng-Choon Chan - Senior Practitioner
Melissa Jane Clements - Acting Registrar
Robert William Griew - Complaints Commissioner
Lynne Maree Coulson Barr - Acting Complaints Commissioner
Sian Mary Leathem - Complaints Commissioner
Tracy Anne Mackey - Commissioner
Graeme Head - Commissioner
Simone Illett - Chief People Officer
Sushila Shandil - Former Acting Chief People Officer
Alec Forbes - Former Acting Chief People Officer
Joseph Hanna - Former Acting Chief Operating Officer
Miranda Bruynicks - Former Complaints Commissioner
(SES information obtained from transparency.gov.AU)
Practical refusal reason
Section 24AA(1)(a)(i) of the FOI Act provides that a practical refusal reason exists where the work
involved in processing the request would substantial y and unreasonably divert the resources of
Comcare from its other operations. A decision maker should take into account staffing resources
available to an agency or minister for FOI processing, and the impact that processing a request may
have on other work in an agency or minister’s office, including processing other FOI requests.
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Comcare has identified approximately 103 documents falling within the scope of your request,
totaling 1501 pages. Due to the volume of documents you have requested, I have undertaken a
sampling exercise of approximately 10% of the documents (154 pages) to assess the nature and
complexity of the material in the documents, to confirm whether the work involved in processing
your request would constitute a substantial and unreasonable diversion of resources from
Comcare’s other operations.
My 10% sampling exercise included retrieving a variety of the types of document falling within the
scope of your request, and conducting a preliminary review of those documents.
In accordance with section 24AA(2) of the FOI Act, I have considered the factors relevant to
processing your request. In order to process your request, Comcare would have to:
• review each page of the documents;
• identify if any parts of the documents can be released in full, and consider any necessary
redactions;
• apply appropriate redactions;
• consult any relevant third parties; and
• prepare a decision, including scheduling each of the documents.
My review of the sample identified a number of exemptions under the FOI Act which would likely
apply to the documents, as the documents include:
• information that, if released, would, or could reasonably be expected to, prejudice the
conduct of an ongoing investigation of a breach or possible breach of law (subsection 37(1));
• information that is deliberative in nature (section 47C);
• information that, if released, would found an action by a person for breach of confidence
(section 45);
• information that, if released, would, or could reasonably expected to have a substantial
adverse effect on the proper and efficient conduct of the operations of Comcare, and
release of which would be contrary to the public interest (section 47E(d)); and
• information that relates to the personal privacy of individuals (section 47F).
These sensitivities mean that, estimating conservatively, it wil take a Comcare staff member a
minimum of two and a half minutes to review each page of the documents and determine if any of
the above exemptions apply to the information.
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Amount of time to process your request
Based on the sample of documents that I retrieved, I have calculated the number of hours it would
take to process your request in full.
Search and Retrieval
Hours
Search and retrieval of files
21.50
Search and retrieval total
21.50
Document Processing
Hours
Examination of each page of the documents (identifying material
that may be exempt under the FOI Act) (2.5 mins per page)
62.50
Consulting with third parties (2 hours per third party)
8.00
Preparation of decision (preparing statement of reasons and
15.00
scheduling of each of the documents).
Decision making subtotal
85.50
Hours
TOTAL
107.00
Based on my experience with the type and volume of records you have requested, I estimate that it
would take more than 100 hours to process your request. I note, this is a conservative estimate as it
does not include time taken to remove exempt material from the documents.
The estimate of 107 hours of processing time is equivalent to a person working full time on your
request for almost 3 weeks.
Accordingly, I am satisfied that this is a 'substantial' request and would also be an unreasonable
diversion of the Comcare’s resources from its other operations, such as its roles under the
Safety,
Rehabilitation and Compensation Act 1988 and the
Work Health Safety Act 2011.
Based on the estimated hours it would take to process your request, I am satisfied that Comcare
staff would be unreasonably diverted from their other operations. Specifically, staff from Comcare’s
FOI team would need to spend a substantial amount of time working on your FOI request to process
and finalise a decision within the statutory timeframe set out in the FOI Act.
While undertaking the work involved in this request, these staff would not be able to undertake
their other functions, including but not limited to investigating privacy matters, managing
complaints from stakeholders, releasing claim documents on request, and managing other FOI
requests. In addition, processing the request would require additional assistance and input from
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Comcare’s Regulatory Operations Group, which would limit their ability to undertake their usual
regulatory inspections and investigations.
What you should do?
I am the officer with whom you may consult with a view to making the request in a form that would
remove the ground for refusal. You can contact me by email on
xxx@xxxxxxx.xxx.xx.
Making your request more manageable may mean excluding specific documents or types of
documents. For example, you may wish to revise your scope to:
• exclude duplicate documents;
• exclude any draft documents;
• remove manuals or policy documents from the scope of the request; and
• exclude any documents that were obtained in confidence by Comcare.
Alternately, you may wish to revise your request to be for a few specific documents or types of
documents you believe are held by Comcare, such as incident notifications or inspector reports
relating to NDIS Quality and Safeguards Commission for the requested period.
Please note that even if you do modify your request, it is possible that a practical refusal reason
under subsection 24AA(1)(a)(i) may still exist. As far as is reasonably practicable, we are happy to
provide you with further information to assist you in making your request in such a form that
removes the practical refusal ground.
Timeframes for revising the scope of your request
Please note that you have
14 days from the day after you receive this notice to either:
• withdraw the request;
• make a revised request; or
• indicate that you do not wish to revise the request.
If you do not respond in one of these ways within 14 days, the request wil be taken to have been
withdrawn pursuant to section 24AB(7) of the FOI Act. If you indicate you do not wish to revise your
request, I wil proceed to make a decision on whether to refuse the request on resource grounds
under section 24(1).
If you need more time to respond, please contact me within the 14 day period to discuss your need
for an extension of time.
Please note that under section 24AB(8) of the FOI Act, the time for processing your FOI request is
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suspended from the day you receive this notice until the day you do one of the things listed above.
Your response is due to me by close of business
19 May 2023.
Contacts
Should you require clarification of any matter discussed in this letter, please contact me by email at
xxx@xxxxxxx.xxx.xx.
Yours sincerely
Sam
Statutory Oversight Officer
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Document Outline
