If not delivered return to PO Box 7820 Canberra BC ACT 2610
21 July 2023
Our reference: LEX 74299
Mr Arthur Jordan (Right to Know)
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Jordan,
Freedom of Information Request - Internal Review Decision
I refer to your request for internal review of the Freedom of Information (FOI) decision made
by an authorised decision maker of Services Australia (the Agency) under the
Freedom of
Information Act 1982 (FOI Act) on 26 June 2023 (LEX 73800) (the original decision).
Background
On 27 May 2023, you made a request under the FOI Act for the following documents:
A recent response from the Dept. of Veterans Affairs stated that all documents used
by them are held by Services Australia on their computer Servers (not DVA Servers),
in particular documents (both inward and outward facing documents) described by
DVA as the Consolidated Library of Information and Knowledge, or CLIK. I seek a list
under S.17 of the FOI Act indicating the names and details of all documents held by
Services Australia on their Servers, on behalf of and accessed by the Department of
Veterans Affairs. I do not require a copy of any documents, just the list.
On 26 June 2023, an Authorised FOI Decision Maker of the Agency decided to refuse your
request for access under section 24A of the FOI Act on the basis that all reasonable steps
had been taken to locate the documents you requested and they were satisfied that the
documents did not exist.
The original decision also stated that the Authorised FOI Decision Maker was satisfied that
section 17 of the FOI Act does not apply to your request as the Agency does not hold the
information you have requested, as it belongs to DVA.
On 26 June 2023, you requested an internal review of the original decision. You made the
following submission in support of your request for internal review:
I am writing to request an internal review of Services Australia's handling of my FOI
request 'List of all documents held on behalf of Dept. of Veterans Affairs.'.
You state your refusal reason as "Your request indicates you have been provided
advice that DVA documents are stored on the Agency’s computer servers. I am
PAGE 1 OF 6
advised the Agency has a shared ICT platform with other government departments
and agencies such as DVA. However, documents owned by other departments that
may be stored on this server are not within the Agency’s possession. Therefore, the
Agency does not hold possession of the documents (should they exist) nor a list with
the the names and details of any such documents"
This is a very pedantic meaning of "possession" and one which I do not agree with. It
is your duty to do more to comply with this FOI request than just say that because
you share Server space with other Government Departments you do not have
possession of them, you can't find them. DVA says the same thing, that because the
documents are on your Servers, they do not have possession of them.
Please explain who has the ultimate access to all shared documents on your
Servers? This would be of more benefit than to just refuse my FOI request outright.
Summary of my internal review decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal
review decisions under section 54C of the FOI Act.
Consistent with the requirements of section 54C(2) of the FOI Act, I have made a fresh
decision.
I have decided to refuse your request on the basis that all reasonable steps have been taken
to locate the documents you requested and I am satisfied that they cannot be located,
pursuant to section 24A of the FOI Act.
I am also satisfied that section 17 of the FOI Act does not apply to your request as the
Agency cannot determine whether documents have been accessed by DVA, therefore, the
Agency is unable to produce a written document containing the information you have
requested in discrete form by use of a computer or other equipment that is ordinarily
available to the Agency.
Please refer to
Attachment A for further information regarding the reasons for my decision.
You can ask for a review of our decision
If you disagree with any part of the decision, you can ask for a review by the Australian
Information Commissioner. See At achment B for more information about how to request a
review.
See
Attachment B for more information about how to request a review.
Further assistance
If you have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx
Yours sincerely
Zeng
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Ombudsman Branch | Legal Services Division
Services Australia
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If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
REASONS FOR DECISION
On 27 May 2023, you made a request under the FOI Act for the following documents:
A recent response from the Dept. of Veterans Affairs stated that all documents used
by them are held by Services Australia on their computer Servers (not DVA Servers),
in particular documents (both inward and outward facing documents) described by
DVA as the Consolidated Library of Information and Knowledge, or CLIK. I seek a list
under S.17 of the FOI Act indicating the names and details of all documents held by
Services Australia on their Servers, on behalf of and accessed by the Department of
Veterans Affairs. I do not require a copy of any documents, just the list.
On 26 June 2023, an Authorised FOI Decision Maker of the Agency decided to refuse your
request for access under section 24A of the FOI Act on the basis that all reasonable steps
had been taken to locate the documents you requested and they were satisfied that the
documents did not exist.
The original decision also stated that the Authorised FOI Decision Maker was satisfied that
section 17 of the FOI Act does not apply to your request as the Agency does not hold the
information you have requested, as it belongs to the DVA.
On 26 June 2023, you requested an internal review of the original decision. You made the
following submission in support of your request for internal review:
I am writing to request an internal review of Services Australia's handling of my FOI
request 'List of all documents held on behalf of Dept. of Veterans Affairs.'.
You state your refusal reason as "Your request indicates you have been provided
advice that DVA documents are stored on the Agency’s computer servers. I am
advised the Agency has a shared ICT platform with other government departments
and agencies such as DVA. However, documents owned by other departments that
may be stored on this server are not within the Agency’s possession. Therefore, the
Agency does not hold possession of the documents (should they exist) nor a list with
the the names and details of any such documents"
This is a very pedantic meaning of "possession" and one which I do not agree with. It
is your duty to do more to comply with this FOI request than just say that because
you share Server space with other Government Departments you do not have
possession of them, you can't find them. DVA says the same thing, that because the
documents are on your Servers, they do not have possession of them.
Please explain who has the ultimate access to all shared documents on your
Servers? This would be of more benefit than to just refuse my FOI request outright.
What I took into account
In reaching my decision I took into account:
• your original request dated 27 May 2023
• the original decision dated 26 June 2023
• your request for internal review dated 26 June 2023
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• consultations with Agency officers about:
o the nature of the documents
o the Agency’s operating environment and functions
• guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
Guidelines), and
• the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
Section 24A of the FOI Act
Section 24A of the FOI Act provides that:
(1) An agency or Minister may refuse a request for access to a document if:
(a) all 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
(i ) does not exist.
The Agency provides a range of information and communications technology (ICT) services
to Commonwealth agencies which includes DVA. Whilst the Agency may provide these ICT
services, I am advised that the Agency is not able to determine whether a particular
document has been accessed by another Commonwealth agency, including DVA.
Accordingly, I am satisfied that in accordance with section 24A of the FOI Act:
1. all reasonable steps have been taken to find the documents; and
2. the documents cannot be located.
Section 17 of the FOI Act
Where a document does not currently exist but an agency could create a document which
contains the information sought using a computer that is ordinarily available to it for retrieving
or collating stored information, section 17 of the FOI Act requires the agency to treat the FOI
request as if the document does exist.
In circumstances where the Agency is unable to determine whether documents have been
accessed by DVA, I am satisfied that section 17 of the FOI Act does not apply to your
request as the Agency is unable to produce a written document containing the information
you have requested in discrete form by use of a computer or other equipment that is
ordinarily available to the Agency (as required under section 17(c)).
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Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a ful explanation of a Freedom of Information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We wil explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information internal review decision
If you stil believe a decision is incorrect, the FOI Act gives you the right to apply for an
external review of the internal review decision. Under section 54M of the FOI Act, you can
apply for a review of an FOI decision by the Australian Information Commissioner. There are
no fees for this review.
You wil have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Important:
• If you are applying online, the application form the 'Merits Review Form' is available
at www.oaic.gov.au.
• If you have one, you should include with your application a copy of the Services
Australia decision on your FOI request
• Include your contact details
• Set out your reasons for objecting to the Agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act,
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
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Website: www.oaic.gov.au
Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website: www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
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