20230811 FOI 136 2023 Decision.pdf

Australian Securities
and Investments Commission

Office address (inc courier deliveries):

Level 7, 120 Col ins Street,
Melbourne VIC 3000

Mail address for Melbourne office:
GPO Box 9827,

Brisbane QLD 4001

Tel: +61 1300 935 075

www.asic.gov.au

(Not the real) Bob Neil
By email:  foi+request-10460-
xxxxxxxx@xxxxxxxxxxx.xxx.xx

Our Reference:  FOI 136-2023

11 August 2023

Dear Sir/Madam
Freedom of Information Request No. 136-2023
Notice of Access Decision

I refer to your request dated 12 July 2023 under the Freedom of Information Act
1982 (FOI Act) in which you seek access to documents in the possession of the
Australian Securities and Investments Commission (ASIC).

Your request seeks access to the following:

‘I write to seek access to documents under the Freedom of Information Act
1982 (Cth).

I seek access to documents containing:

1. any agenda item, minute, or record of proceedings relating to a formal
resolution of the Commission to adopt a policy of refraining from investigating
al egations of criminal offences, created under legislation that ASIC
administers;

2. any agenda item, minute, or record of proceedings of the ASIC Commission
Committees or ASIC Management Committees relating to an ASIC policy of
refraining from investigating al egations of criminal offences, created under
legislation that ASIC administers;

3. any instrument of delegation which confers a discretion upon an employee
or officer of ASIC to decide whether to investigate, or refrain from
investigating, al egations of criminal offences created under legislation that
ASIC administers.

I am content to receive any such documents in electronic form.

2
Please contact me promptly if the scope of this request wil  require extensive
search or review such as to delay provision of access to the documents until
more than 30 days after the date of this request, so as to discuss any potential
refinement of the request, or the possibility of access being granted in
phases.’

I am the authorised decision-maker for the purposes of section 23 of the FOI
Act and this letter gives notice of my decision.

Parts 1 and 2 of your request - Decision and reasons for the decision

I have conducted a search in response to your request and have found no
documents falling within the terms of Parts 1 and 2 of your request were
identified. As a result, your request is refused in line with paragraph
24A(1)(b)(ii) of the FOI Act, which provides:

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 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
(ii)  does not exist.

1. any agenda item, minute, or record of proceedings relating to a formal
resolution of the Commission to adopt a policy of refraining from investigating
al egations of criminal offences, created under legislation that ASIC
administers;

2. any agenda item, minute, or record of proceedings of the ASIC Commission
Committees or ASIC Management Committees relating to an ASIC policy of
refraining from investigating al egations of criminal offences, created under
legislation that ASIC administers;

A document does not exist within the terms of Parts 1 and 2 of your request
that “refrains” ASIC from investigating allegations of criminal offences. ASIC
does not have a policy of “refraining from investigating allegations of criminal
offences, created under legislation that ASIC administers”.

My decision is therefore to refuse your request for access to documents under
section 24A of the FOI Act on the basis that al  reasonable steps have been
taken to find the document(s) that fall within the scope of your request. I am
satisfied that the document(s) do not exist. I have therefore decided to refuse
your request pursuant to section 24A(1)(b)(ii) of the FOI Act.

3

Part 3 of your request - Decision and reasons for the decision

I have identified one document which comes within the terms of your request.
The  document  was  identified  by  the  Commission  Counsel  team  within  Legal
Services on 2 August 2023. The document was located on ASIC’s internal record
management  system  (Sharepoint)  through  ASIC’s  delegations,  authorisations
and  appointments  register.  A  document  was  located  in  relation  to  ASIC’s
delegation of its functions and powers under s 102 of the ASIC Act 2001.

I  advise  that  I  have  decided  to  grant  access  in  full  to  the  document.  The
document is enclosed with this letter.

Review rights

In the event that you are dissatisfied with the decision:

1.  You may, within 30 days after the day on which you have been notified of
this decision, apply in writing to ASIC for an internal review of my decision
under section 54B of the FOI Act. This review is an independent process
conducted by a Senior Freedom of Information Officer at ASIC. This request
should be addressed to me or to the Senior Manager, Freedom of
Information, GPO Box 9827, Brisbane QLD 4001 or by email to
xxxxxxxxxx@xxxx.xxx.xx.

2.  You may within 60 days after the day on which you have been notified of
this decision, apply in writing to the Office of the Australian Information
Commissioner (OAIC) for a review of my decision under section 54N of the
FOI Act.  You may contact the OAIC by post at GPO Box 5218 Sydney NSW
2001, by email at xxxxxxxxx@xxxx.xxx.xx or by telephone on 1300 363 992.

Right to complain

3.  You may lodge a complaint with the OAIC in relation to the conduct of
ASIC in the handling of this request. You may contact the OAIC as set out
above.

If you have any questions or wish to discuss, please contact me at
xxxxxxx.xxxx@xxxx.xxx.xx.

Yours sincerely,

Krystal Fung
(Authorised decision maker pursuant to subsection 23(1) of the FOI Act)
For the Australian Securities and Investments Commission