23 Marcus Clarke Street
Canberra ACT 2601
GPO Box 3131
Our ref:
PRJ1006714
Canberra ACT 2601
Contact officer:
FOI team
Contact phone:
02 6243 1244
tel: (02) 6243 1111
fax: (02) 6243 1199
18 May 2023
www.accc.gov.au
Watson Norwood
Sent via email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Watson
Notice of intention to refuse access because a practical refusal reason exists –
insufficient information provided to identify requested documents
I refer to your correspondence of 6 May 2023 which states as fol ows:
‘I am writing to make a request under the Freedom of Information Act for a complete copy
of the departments' Freedom of Information (FOI) logs for the period 2013-2023, including
any secondary departments control ed by the agency.
I request that this is provided as a document and not a simple redirect to the agency
website as I am of the view that your online disclosure logs do not actively reflect your
FOI requests that you have received in this period.
I would appreciate it if you could provide me with this information in an electronic format,
such as a PDF or spreadsheet, if possible.’
Subsection 24(1) of the FOI Act provides that where an agency, such as the ACCC,
is satisfied when dealing with a request for a document that a ‘practical refusal
reason’ exists in relation to the request, the agency:
must undertake a request consultation process (in accordance with section
24AB); and
if, after the request consultation process, the agency is satisfied that the
practical refusal reason stil exists – the agency may refuse to give access to
the document.
Paragraph 24AA(1)(b) of the FOI Act provides that a practical refusal reason exists in
relation to a request for a document if the request does not satisfy the requirement in
paragraph 15(2)(b).
Paragraph 15(2)(b) of the FOI Act requires that a valid request made under the FOI
Act must ‘provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency […] to identify it.’
Having carefully considered your correspondence of 6 May 2023 as set out above, it
is unclear to me the particular documents to which you seek access under the FOI
Act. For example:
Where you refer to ‘(FOI) logs for the period 2013-2023’ is this a reference to
al requests made under the FOI Act of the ACCC from 1 January 2013 until
and including the date of your request?
If yes, what documents are you seeking access to in relation to al of those
requests? That is, are you seeking access to the original requests, al
correspondence associated with each request including the decisions made
and any documents released?
In the second paragraph of your request, you refer to ‘online disclosure logs’
which I assume to mean the ACCC’s ‘Freedom of Information disclosure log’
published and maintained by the ACCC in accordance with section 11C of the
FOI Act and available here: https://www.accc.gov.au/about-us/freedom-of-
information/freedom-of-information-disclosure-log
If that’s correct, is the reference in the second paragraph of your
correspondence to the ACCC’s FOI disclosure log different to the ‘(FOI) logs’
referred to in the first paragraph of your request?
If not, and the reference in your first paragraph to ‘(FOI) logs’ is also a
reference to the ACCC’s FOI disclosure log, as available here:
https://www.accc.gov.au/about-us/freedom-of-information/freedom-of-
information-disclosure-log, to which documents on that log do you seek
access to? For example, noting that you do not wish to be provided with a link
to the ACCC’s publicly available FOI disclosure log, are you requesting, under
the FOI Act, that the ACCC download each and every document published in
accordance with section 11C of the FOI Act for every relevant FOI request
made of the ACCC from 1 January 2013 up to and including the date of your
request? Or are you requesting that, noting the ACCC’s disclosure log is
published across numerous webpages, that you be provided with screenshots
of the ACCC’s disclosure log for the entirety of the date range to which your
request refers (1 Jan 2013 – 6 May 2023)? Or are you seeking access to be
both screenshots and documents released and published in accordance with
section 11C of the FOI Act?
Noting that I’ve been unable to resolve these questions by reference to the terms of
your correspondence of 6 May 2023, I’m of the view that your request does not
satisfy the requirement in paragraph 15(2)(b) of the FOI Act. That is, I’m of the view
your request does not provide sufficient information to enable me to identify the
document or documents to which you seek access.
Accordingly, the ACCC is considering refusing your request, as currently framed,
under section 24 of the FOI Act because a practical refusal reason exists –
specifical y, your request does not satisfy the requirement in paragraph 15(2)(b) of
the FOI Act.
Request consultation process
Before making a decision to refuse your request you have an opportunity to revise
your request to provide sufficient information to enable us to identify the documents
you are seeking access to. This is cal ed a ‘request consultation process’. In
accordance with subsection 24AB(6) of the FOI Act, before 1 June 2023, you must
either:
revise your request (for example by providing sufficient clarification such that
a practical refusal reason no longer exists in relation to your request),
tel us that you do not wish to revise your request, or
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withdraw your request.
If you do not respond in one of these ways in that timeframe your request can be
taken to be withdrawn.
What should you do
I am the ACCC contact officer in relation to your request. Please read the attached
tips for success (Attachment A) which may assist you in responding to this letter and
then email me via xxx@xxxx.xxx.xx to make a time to discuss your request. I am
happy to help you to revise your request to remove the practical refusal ground.
I encourage you to contact me before submitting a revised request. Once you submit
a revised request, the request consultation process ends and we wil make a decision
regarding whether the practical refusal ground stil exists based on the terms of your
revised request. Even if you modify your request, the practical refusal reason may
stil exist or we may need further time to process your revised request. This wil
depend upon the terms of your final request.
Please note, the ACCC’s disclosure log contains information that has been released
in response to every FOI request received by the ACCC from 2011 onwards (i.e.,
where a decision was made to grant or part grant access to documents), subject to
certain exceptions under s.11C of the FOI Act. Please note that where a decision
has been made to refuse access (in ful ) to documents the subject of a FOI request,
or where the ACCC does not hold documents the subject of a FOI request, the FOI
Act does not require that decision, or the related request, to be published on the
ACCC’s FOI disclosure log.
If you need more time to respond, please contact me before 1 June 2023 to request
an extension of time.
During this period of consultation, the statutory timeframe for the processing of your
request is on hold.
I have also attached an extract from the FOI Act for your information (Attachment B).
Yours sincerely
Rebecca Fenech
FOI Manager
ACCC Legal Group
Sent by email 18/05/2023
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Attachment A
Tips for success
It would assist us if you were able to clearly identify the specific documents you are
after, or clarify what information you are seeking.
Framing the scope of your request using the below suggestions wil assist us to
identify the document/s you are seeking, and may also assist in removing any
practical refusal reasons.
Limit your request to one or two dot points.
Choose a specific category of documents (i.e. final documents, file notes,
email correspondence or reports). Requesting ‘al documents’ in relation to a
matter or issue may lead to a practical refusal reason
Choose a specific date or date range (i.e. a final document dated 5 June 2019
or final documents created between 1 June 2019 and 30 June 2019). Too
broad a date range may result in a practical refusal reason
Limit your request to documents about a specific issue in relation to a specific
matter (i.e. correspondence between the ACCC and (name of company or
person) addressing why they consider the conduct was not unlawful).
Requesting ‘al documents’ in relation to a matter or issue may lead to a
practical refusal
Be clear about what you don’t want (i.e. hardcopy documents, publicly
available material, duplicates, copies of your own correspondence).
Exclude third party identifying material if you can, to minimise our need to
consult such parties on your request.
Example FOI request:
‘I request, under the FOI Act, final reports and file notes relating to x matter, in the
period 1 July 2019 to 30 July 2019.
I am not seeking copies of internal correspondence, draft documents or publicly
available documents.’
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Attachment B
Extracts of the Freedom of Information Act
15 Requests for access
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).
24AB What is a request consultation process?
(1) This section sets out what is a request consultation process for the
purposes of section 24.
Requirement to notify
(2) The agency or Minister must give the applicant a written notice stating the
fol owing:
(a) an intention to refuse access to a document in accordance with a request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the Minister (the
contact person ) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the applicant may
consult with the contact person is 14 days after the day the applicant is given
the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation period in
accordance with the notice, the agency or Minister must take reasonable steps to
assist the applicant to revise the request so that the practical refusal reason no
longer exists.
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(4) For the purposes of subsection (3), reasonable steps includes the fol owing:
(a) giving the applicant a reasonable opportunity to consult with the contact
person;
(b) providing the applicant with any information that would assist the applicant
to revise the request.
Extension of consultation period
(5) The contact person may, with the applicant's agreement, extend the
consultation period by written notice to the applicant.
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of the
fol owing, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the end
of the consultation period if:
(a) the applicant does not consult the contact person during the consultation
period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in subsection (6)
before the end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under
subsection (2) and ending on the day the applicant does one of the things
mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30
day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take al reasonable
steps to notify an applicant of a decision on the applicant's request within 30 days
after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to undertake a
request consultation process once for any particular request.
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