26 May 2023
Our Reference: 2023/796
Bertha Binderschmitt
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Binderschmitt,
Your FOI Request – Decision letter
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 well 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)
On 4 May 2023, I consulted with you to revise the scope of your request since a practical refusal
reason existed under section 24AA of the FOI Act. On 5 May 2023, you responded to say:
I appreciate the concerns you have raised regarding the potential exemptions under the FOI
Act, which may apply to the requested information. In order to address these concerns and
facilitate the processing of my FOI request, I would like to offer the fol owing suggestions to
move forward:
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1. Subsection 37(1): I fully understand the importance of not jeopardising ongoing
investigations into breaches or possible breaches of law. To mitigate this concern, I am more
than wil ing to exclude any documents that specifically pertain to active investigations.
Instead, I would like to focus my request on completed investigations only. This approach
should help ensure that no ongoing investigations are adversely affected by the release of
information.
2. Section 47C: While I acknowledge that certain deliberative material may be exempt from
release under the FOI Act, my primary interest lies in obtaining factual information and the
final outcomes of any discussions, rather than the deliberative content itself. By focusing on
these aspects, we can maintain the integrity of Comcare's decision-making processes while
stil promoting transparency and accountability in the public interest.
3. Section 45: I completely respect the need to protect confidential information and have no
intention of causing any harm or discomfort to individuals or organisations involved. Should
any documents contain confidential information, I would be content with receiving redacted
versions where such information has been removed, thereby protecting the confidentiality of
the parties involved.
4. Section 47E(d): I recognise that releasing certain information may have an adverse impact
on Comcare's operations. However, my intention is to promote transparency and
accountability in the public interest, which is a crucial aspect of maintaining trust and
confidence in government agencies. If specific documents or information do indeed fall under
this exemption, I kindly request a brief explanation as to why releasing such information
would be contrary to the public interest. This approach wil allow me to better understand
the reasoning behind the decision and ensure that the public interest is upheld.
5. Section 47F: The protection of personal privacy is of utmost importance, and I share your
concern in this regard. Please be assured that I am not seeking any personal information of
individuals, and I am wil ing to accept redacted versions of the documents with any personal
information removed. This wil ensure that the privacy of individuals is not compromised
while stil allowing me to access the relevant information in the documents.
I hope these suggestions serve to address your concerns and facilitate the processing of my
FOI request. I believe that refining the scope of my request in this manner wil strike a
balance between promoting transparency and upholding the exemptions provided by the FOI
Act. Please do not hesitate to contact me if you require any further clarification or
modifications.
You further emailed Comcare on 6 May 2023, seeking to add more documents to the scope of this
request. I note this email was taken to be a new request, and was assigned reference number
2023/1250. Your request dated 6 May will be processed separately.
My decision
I have decided to
refuse access to your request under section 24(1) of the FOI Act because a
practical refusal reason still exists under section 24AA of the FOI Act.
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I am satisfied that the work involved in processing your revised request would substantially and
unreasonably divert the resources of Comcare from its other operations as specified in section
24AA(1)(a)(i) of the FOI Act.
The reasons for my decision, including the relevant sections of the FOI Act, are set out in
Attachment A.
Review rights
If you disagree with any part of the decision you can ask for a review. There are two ways you can do
this. You can ask for an internal review from within Comcare, or an external review by the Office of
the Australian Information Commissioner. See
Attachment B for more information about how
arrange a review.
Further assistance
If you have any questions please em
ail xxx@xxxxxxx.xxx.xx.
Yours sincerely
Sam
Authorised FOI Decision-maker
Statutory Oversight Team
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Attachment A
REASONS FOR DECISION
Request consultation process
On 4 May 2023, I wrote to you notifying you of my intention to refuse your request for access to
documents because a practical refusal reason existed under section 24(1) of the FOI Act. I provided
you with a notice under section 24AB of the FOI Act.
The practical refusal reason was that the work involved in processing the request would substantial y
and unreasonably divert the resources of Comcare from its other operations as specified in
subsection 24AA(1)(a)(i) of the FOI Act.
The notice gave you an opportunity to revise the scope of your request so as to remove the practical
refusal reason.
On 5 May 2023, you responded to the consultation notice with a very limited change in scope
(excluding only documents relating to ongoing investigations). On 6 May 2023, you requested
additional documents be processed as part of your request.
In a practical sense, only point ‘1’ of your revised request modifies the scope of your request, by
excluding documents relating to any ongoing investigations. The remainder of your email addresses
your willingness to receive redacted copies of information that falls within the FOI exemptions.
Information Considered
In reaching my decision I have considered:
• your original request dated 27 March 2023;
• correspondence with you on 30 March, and 4 & 5 May 2023;
• the documents that fal within the scope of your request;
• consultations with Comcare officers about:
o the nature of the documents;
o Comcare’s operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of the FOI
Act (
Guidelines); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
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Fol owing the request consultation process outlined above, in accordance with section 24 of the FOI
Act, I have decided to refuse your request as I am satisfied that a practical refusal reason still exists
in that the work involved in processing your request would substantial y and unreasonably divert the
resources of Comcare from its other operations.
Practical refusal reason
Section 24AA of the FOI Act provides that a practical refusal reason exists in relation to a request for
a document if the work involved in processing the request would substantially and unreasonably
divert the resources of the agency from its other operations.
The word 'substantial' has been interpreted to mean severe, of some gravity, large or weighty or of
considerable amount, real or of substance and not insubstantial or of nominal consequence. The
use of the word 'unreasonable' has been interpreted to mean that a weighing of all relevant
considerations is needed, including the extent of the resources needed to meet the request.
In determining whether processing a request would substantial y and unreasonably divert
Comcare’s resources, section 24AA(2) of the FOI Act provides that an agency must have regard to
the resources that would have to be used for the fol owing:
a) identifying, locating or collating the documents within the filing system of the
agency, or the office of the Minister;
b) deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document,
including resources that would have to be used for:
i. examining the document; or
ii. consulting with any person or body in relation to the request;
c) making a copy, or an edited copy, of the document; and
d) notifying any interim or final decision on the request.
Paragraph 3.117 of the Guidelines relevantly provides:
Other matters that may be relevant in deciding if a practical refusal reason exists include:
•
the staffing resources available to an agency or minister for FOI processing
•
whether the processing work requires the specialist attention of a minister or senior
officer, or can only be undertaken by one or more specialist officers in an agency who
have competing responsibilities
•
the impact that processing a request may have on other work in an agency or
minister’s office, including FOI processing
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•
whether an applicant has cooperated in framing a request to reduce the
processing workload
•
whether there is a significant public interest in the documents requested…
In accordance with section 24AA(3) of the FOI Act, I did not consider your reasons for
requesting access to the documents.
Would the processing of your request substantially divert Comcare’s resources from its other
operations?
As identified in my consultation notice dated 4 May 2023, you were notified that there were 1,501
pages of documents within the scope of your request. You revised the scope of your request slightly
during the consultation process to exclude documents from ongoing investigations, which I am
satisfied has reduced the scope of your request minimally, from 1,501 to 1,392 pages of documents.
In addition, I note that the relevant business area has recently identified a further 427 pages that fall
within the scope of your request. This means that 1,819 pages of documents fal within the scope of
your revised request.
I have undertaken a sampling exercise of approximately 10% of the documents (188 pages) to
accurately assess the complexity of the material contained within the documents and confirm
whether the work involved in processing the request would constitute a substantial and
unreasonable diversion of resources from Comcare’s other operations.
My sample of documents included a variety of the different types of documents which fall within the
scope of your revised request. I am satisfied that the sample is representative of the request more
broadly.
My review of the sample identified a number of exemptions under the FOI Act which would likely
apply to the documents, including:
• 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 exemption);
• 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) conditional
exemption); and
• information that relates to the personal privacy of individuals (section 47F conditional
exemption).
Having regard to the sample of documents falling within the scope of your request, I am satisfied
that the documents contain significant sensitivities, meaning they will need to be reviewed carefully,
and where necessary, sensitive information wil need to be removed. I estimate that this process wil
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take a decision-maker approximately 2 and a half minutes per page to consider and redact pages
that are likely to be exempt in part or in full.
Using the averages identified above, I estimate that processing the requested documents would
require approximately 100 hours. Factoring in additional time for writing a decision, scheduling the
documents, and consulting with third parties, I am satisfied that it would take over 125 hours to
process your entire request.
The Administrative Appeals Tribunal recently found in
Cambridge; Chief Executive Officer, Services
Australia and (Freedom of information) [2021] AATA 1142 and
Urquhart; Chief Executive Officer,
Services Australia and (Freedom of Information) [2021] AATA 1407 that, even for Services Australia
(being one of the largest agencies in the Commonwealth), processing requests which would take
88.5 and 118.51 hours respectively would involve a substantial diversion of that agency’s resources.
Therefore, I am satisfied that processing a request in excess of 125 hours would clearly be a
substantial diversion of Comcare’s resources, especially noting its relative size compared to Services
Australia.
Would the processing of your request unreasonably divert Comcare’s resources from its other
operations?
In
Dreyfus and Attorney-General (Commonwealth of Australia) [2015] AATA 995, Jagot J (at [43])
observed that the determination of what is reasonable “ .. is a question of fact and degree which
calls for a balancing of all the legitimate interests .. ”.
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 Comcare’s Regulatory Operations Group,
which would limit their ability to undertake their usual regulatory inspections and investigations.
I have considered that the nature of your request is quite broad, and you have not cooperated in
revising the request in such a way as to significantly reduce the processing workload; in fact, you
sought to add further documents to your request two days after receiving a notice of intention to
refuse under s24AB.
I am satisfied that processing your request would substantial y and unreasonably divert Comcare’s
resources from its other operations, including assessing and managing claims for compensation,
investigating Work Health Safety matters, and the processing of other FOI requests received by
Comcare.
Conclusion
In summary, I am satisfied that the work involved in processing your revised request would
substantially and unreasonably divert the resources of Comcare from its other operations,
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namely its regulatory functions under the
Work Health and Safety Act 2011, its functions
managing compensation under the
Safety, Rehabilitation and Compensation Act 1988, and the
processing of other FOI requests.
I have found that a practical refusal reason exists in relation to your revised request for
access to the documents. Accordingly, I have decided to refuse your request under section
24(1) of the FOI Act.
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ATTACHMENT B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of this
decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this decision by:
(i) an internal review officer within Comcare; or
(ii) the Information Commissioner.
Internal Review
If you apply for internal review, it will be carried out by a different decision-maker who will make a
fresh decision on your application. An application for review must be:
•
made in writing;
•
made within 30 days of receiving this letter; and
•
sent to the postal or email address shown in this letter.
No particular form is required, but it is desirable to set out in the application the grounds upon
which you consider the decision should be reviewed.
If the internal review officer decides not to grant you access to all of the documents to which you
have requested access, you have the right to seek a review of that decision by the Information
Commissioner. You will be further notified of your rights of review at the time you are notified of the
internal review decision.
Please note that if you apply for an internal review and a decision is not made by an internal review
officer within 30 days of receiving the application, you have the right to seek review by the
Information Commissioner for a review of the original FOI decision on the basis of a 'deemed refusal'
decision, An application for Information Commissioner review in this situation must be made within
60 days of the date when the internal review decision should have been made (provided an
extension of time has not been granted or agreed).
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can lodge your
application in one of the following ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
mail:
xxxxxxxxx@xxxx.xxx.xx
If a person has sought an internal review and no result of that review is provided within 30 days,
then the applicant may apply to the Information Commissioner to review the matter.
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An application form is available on the website at
www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are objecting to (if one was provided), and your contact
details. You should also set out why you are objecting to the decision.
Complaints to the Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by Comcare in relation to your request. The Ombudsman wil
consult with the Australian Information Commissioner before investigating a complaint about the
handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
Phone:
1300 362 072 (local cal charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your enquiries to the Australian Information Commissioner can be directed to:
Phone:
1300 363 992 (local cal charge)
Email:
xxxxxxxxx@xxxx.xxx.xx
No particular form is required to make a complaint to the Ombudsman or the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify
Comcare as the relevant agency.
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Document Outline
