LEX 65523

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jesse (Position Number 62373496),
Information Access Officer, Information Access Unit,
Ministerial, International & Stakeholder Relations Branch, Department of Veterans’ Affairs

Applicant:

Mr Alan Ashmore

Decision date:

22 March 2024

FOI reference number:
LEX 65523

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Ashmore,
Freedom of Information Request: LEX 65523
Decision

1.  The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has not been able to identify any documents relevant to your request.

2.  For this reason, I have made a decision to refuse your request under section 24A(1)(b)(ii) of
the Freedom of Information Act 1982 (FOI Act), as the documents do not exist.

Authority to make decision

3.  I, Jesse (Position Number 62373496), Information Access Officer, Information Access Unit,
Ministerial, International & Stakeholder Relations Branch, am an officer authorised by the
Secretary of the Department to make decisions about access to documents in the possession
of the Department in accordance with section 23(1) of the FOI Act.
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Summary

4.  On 25 February 2024, you made a request for access to documents in the possession of the
Department. Your request sought access to:

‘…BACKGROUND:

On 29 April 2023 the OAIC found DVA had breached the privacy of a veteran in
relation to the MATES program.

INFORMATION I AM SEEKINNG:

In regard to the MATES program, I am seeking all correspondence including minutes
of meeting, internal emails within DVA, plus all written communication both to and
from DVA to the University of Adelaide for the period 1 April 2023 to and including
23 February 2024…’

5.  On 27 February 2024, the Department acknowledged your request via email.

6.  As no extensions of time have been applied to process your request, a decision on your
request is due by 26 March 2024.

Material taken into account

7.  In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
refuse access to your request follow:

8.  I have taken the following material into account in making my decision:

  the terms of your request on 25 February 2024;

  the types of documents that are in the possession of the Department;

  my correspondence with different business areas within the Department;

  Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:
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-  Section 15      Request for Access;
-  Section 24A      Request may be refused if documents cannot be found or do not

exist

  Guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (FOI Guidelines).

9.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

10.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

(a)
al  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.

11.  I am satisfied that all reasonable steps have been taken to find information relevant to your
request, having regard to:

•  the terms of your request;

•  the subject matter of the documents;

•  the current and past file management systems and the practice of orderly
destruction or removal of documents;

•  the Department’s record management systems and practices; and

•  the individuals and areas within the Department who may be able to assist with
the location of the information you seek access to.

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12.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request. A description of the searches undertaken to locate the
documents which you are seeking to access is at Schedule 1.

13.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A(1)(b)(i ) of the FOI Act, on the basis that the
document cannot be found/do not exist.

Your rights of review

14.  If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step to resolve any concerns you may have.

Internal review

15.  Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.

16.  You can make your application for Internal Review in one of the fol owing ways:

Post:
Information Access Unit,
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

OAIC review

17.  Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:

Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
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Email:
xxxxx@xxxx.xxx.xx

18.  More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/

Contact us

19.  If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

Yours sincerely,

Jesse (Position Number 62373496)
Information Access Officer
Information Access Unit
Ministerial, International & Stakeholder Relations Branch
Department of Veterans’ Affairs

22 March 2024
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LEX 65523
Schedule 1

Summary of document searches

The Department undertook the fol owing to identify any records that fal within the scope of your
request (relevant documents).

Searches undertaken
Search minutes were sent to the Program Delivery Division within the Department of
Veterans Affairs (Department) who have advised that there are no documents pertaining
to this request as the Department has had no direct contractual agreement with the University of
Adelaide for the Veterans’ MATES program. The Department had a Deed of Agreement with the
University of South Australia as the supplier of Veterans’ MATES. It is the University of South
Australia who sub contracts to the University of Adelaide – the Department approves that sub-
contractor with the University of South Australia but is not a party to the communications between
universities or with the sub-contractor.

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LEX 65523
Schedule 2

Schedule of relevant provisions in the FOI Act
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Objects - general

(1)  The objects of this Act are to give the Australian community access to information held by the
Government of the Commonwealth or the Government of Norfolk Island, by:
(a)  requiring agencies to publish the information; and

(b)  providing for a right of access to documents.

(2)  The Parliament intends, by these objects, to promote Australia’s representative democracy by
contributing towards the fol owing:
  (a)  increasing public participation in Government processes, with a view to promoting
better-informed decision-making;

(b)  increasing scrutiny, discussion, comment and review of the Government’s activities.

(3)  The Parliament also intends, by these objects, to increase recognition that information held by the
Government is to be managed for public purposes, and is a national resource.

(4)  The Parliament also intends that functions and powers given by this Act are to be performed and
exercised, as far as possible, to facilitate and promote public access to information, promptly and at
the lowest reasonable cost.

11  Right of access

(1)  Subject to this Act, every person has a legal y enforceable right to obtain access in accordance with
this Act to:
  (a)  a document of an agency, other than an exempt document; or

(b)  an official document of a Minister, other than an exempt document.

(2)  Subject to this Act, a person’s right of access is not affected by:
  (a)  any reasons the person gives for seeking access; or

(b)  the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

11A  Access to documents on request

Scope

(1)  This section applies if:
  (a)  a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for
access to:
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
a document of the agency; or


an official document of the Minister; and

(b)  any charge that, under the regulations, is required to be paid before access is given has been
paid.

(2)  This section applies subject to this Act.

Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the
fol owing:
(a)  section 12 (documents otherwise available);
(b)  section 13 (documents in national institutions);
(c)  section 15A (personnel records);
(d)  section 22 (access to edited copies with exempt or irrelevant matter deleted).

Mandatory access—general rule

(3)  The agency or Minister must give the person access to the document in accordance with this Act,
subject to this section.

Exemptions and conditional exemptions

(4)  The agency or Minister is not required by this Act to give the person access to the document at a
particular time if, at that time, the document is an exempt document.

Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a
request (see section 3A (objects—information or documents otherwise accessible)).

(5)  The agency or Minister must give the person access to the document if it is conditional y exempt at a
particular time unless (in the circumstances) access to the document at that time would, on balance,
be contrary to the public interest.

Note 1:
Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2:
A conditional y exempt document is an exempt document if access to the document would, on balance,
be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:
Section 11B deals with when it is contrary to the public interest to give a person access to the document.

(6)  Despite subsection (5), the agency or Minister is not required to give access to the document at a
particular time if, at that time, the document is both:
  (a)  a conditionaly exempt document; and

(b)  an exempt document:

(i)  under Division 2 of Part IV (exemptions); or

(ii)  within the meaning of paragraph (b) or (c) of the definition of exempt document in
subsection 4(1).

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Decisions to be made by authorised persons

(1)  Subject to subsection (2), a decision in respect of a request made to an agency may be made, on
behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to
the regulations, by an officer of the agency acting within the scope of authority exercisable by him or
her in accordance with arrangements approved by the responsible Minister or the principal officer of
the agency.
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(2)  A decision in respect of a request made to a court, or made to a tribunal, authority or body that is
specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body by the
principal officer of that court, tribunal, authority or body or, subject to the regulations, by an officer
of that court, tribunal, authority or body acting within the scope of authority exercisable by him or
her in accordance with arrangements approved by the principal officer of that court, tribunal,
authority or body.
(see section 11A).

24A  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)  al 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.

Document not received as required by contract

(2)  An agency may refuse a request for access to a document if:
  (a)  in order to comply with section 6C, the agency has taken contractual measures to ensure that it
receives the document; and

(b)  the agency has not received the document; and

(c)  the agency has taken al  reasonable steps to receive the document in accordance with those
contractual measures.

26    Reasons and other particulars of decisions to be given

(1)  Where, in relation to a request, a decision is made relating to a refusal to grant access to a document
in accordance with the request or deferring provision of access to a document, the decision-maker
shall cause the applicant to be given notice in writing of the decision, and the notice shall:
  (a)  state the findings on any material questions of fact, referring to the material on which those
findings were based, and state the reasons for the decision; and

(aa)  in the case of a decision to refuse to give access to a conditional y exempt document—include
in those reasons the public interest factors taken into account in making the decision; and

Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).

(b)  where the decision relates to a document of an agency, state the name and designation of the
person giving the decision; and
(c)  give to the applicant appropriate information concerning:

(i)
his or her rights with respect to review of the decision;
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(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and

(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i) and
(ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be made.

(1A) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision
referred to in subsection (1).

(2) A notice under this section is not required to contain any matter that is of such a nature that its
inclusion in a document of an agency would cause that document to be an exempt document.
(see section 11A).

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Document Outline