Defence Reference: FOI 222/24/25
OAIC Reference: MR24/01868
Di Abdo
FOI Case Management Branch
Office of the Australian Information Commissioner
By email: xxxxx@xxxx.xxx.xx
Copy to: James Smith
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Abdo,
Information Commissioner Review MR24/01868 – James Smith 1.
I refer to correspondence from the Office of the Australian Information Commissioner
(OAIC) attaching a Notice issued on 29 January 2025 under section 54Z of the
Freedom of
Information Act 1982 (Cth) (FOI Act) (Notice) in relation to the above matter.
2.
I also refer to on 22 July 2025 attaching a Direction issued on 22 July 2025 under
section 55(2)(e)(ii) of the
Freedom of Information Act 1982 (Cth) (FOI Act) (Direction).
3.
In accordance with the Notice, and Direction, Defence provides the following
submission in response to this external review.
Background 4.
On 19 September 2024, James Smith (the applicant) submitted the following request
to Defence for access to documents under the FOI Act:
Please provide an export from Sentinel which lists all MRH90 safety incidents that
were/are notifiable to Comcare.
5.
On 23 September 2024, Defence engaged with the applicant seeking clarification
regarding the scope of their request. In this correspondence Defence requested the applicant
provide a date range for information sought to assist the Department in conducting targeted
searches for relevant documents.
6.
Defence did not receive a response from the applicant.
7.
On 27 September 2024, Defence sent the applicant a follow up email requesting they
provide a date range in respect to the scope of their request. Defence did not receive a
response from the applicant.
8.
On 2 October 2024, Defence issued the applicant a Notice of intention to refuse the
applicant’s request under section 24AB of the FOI Act. In the notice, Defence advised the
applicant that the work required to process their request in its current form would
substantially and unreasonably divert the agency’s resources from its other operations.
Defence requested the applicant revise the scope of their request.
9.
On 4 October 2024, the applicant responded to the section 24AB notice advising they
would not revise the scope of their request.
10.
On 11 November 2024, Defence issued the applicant with a decision (original
decision) in response to their FOI request. The original decision refused the applicant’s
request under section 24A [Requests may be refused if documents cannot be found, do not
exist or have not been received] of the FOI Act.
11.
On 19 November 2024, the applicant sought an external review with the OAIC.
12.
On 29 January 2025, the OAIC issued Defence a Notice of Information
Commissioner (IC) review and request for documents under section 54Z of the FOI Act.
13.
On 22 July 2025, the OAIC issued Defence a Direction under section 55(2)(e)(ii) of
the FOI Act.
Scope of IC review 14.
Defence refers to the IC review application made by the applicant and both the section
54Z Notice and section 55(2) Direction issued by the OAIC on 29 January 2025 and
22 July 2025 respectively.
15.
Defence understands the sole issue before the IC is whether all reasonable steps have
been taken to identify documents within the scope of the request, and that documents cannot
be found or do not exist (section 24A of the FOI Act).
Defence’s submissions 16.
Defence maintains its position that the applicant’s request is refused under section
24A [Requests may be refused if documents cannot be found, do not exist or have not been
received] of the FOI Act for the reasons outlined in the original decision issued on
11 November 2024 and in accordance with submissions provided herein.
17.
Defence is satisfied that all reasonable steps have been taken to identify documents
relevant to the applicant’s request, as required under section 24A of the FOI Act.
Section 24A - Requests may be refused if documents cannot be found, do not exist or
have not been received 18.
Section 24A(1) of the FOI Act provides:
Document lost or non-existent
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.
19.
The Guidelines issued by the Australian Information Commissioner under section
93A of the FOI Act (the Guidelines) provide that there are two elements that must be
established before an agency or minister can refuse an FOI request under section 24A.
20.
The Guidelines explain, at paragraph 3.142, that an agency or minister may refuse an
FOI request if it has taken ‘all reasonable steps’ to find the document requested and is
satisfied the document cannot be found or does not exist.
21.
Although the FOI Act is silent on what constitutes ‘all reasonable steps’, the
Guidelines confirm agencies and ministers should undertake a reasonable search based on a
flexible and common-sense interpretation of the terms of the FOI request.
22.
Paragraph 3.145 of the Guidelines and the decision of Deputy President McDonald
in
Re Cristovao and Secretary, Department of Social Security [1998] AATA 787 at [19]
explains ‘reasonable’ in the context of section 24A(1)(a) has been construed as not going
beyond the limits assigned by reason, not extravagant or excessive, moderate and of such an
amount, size or number as is judged to be appropriate or suitable to the circumstances or
purpose.
23.
In the course of processing the applicant’s original FOI request, three business areas,
the Australian Army (Army), Defence People Group (DPG) and Capability Acquisition and
Sustainment Group (CASG) were tasked with conducting searches for documents relevant to
the scope of the applicant’s request within their area.
24.
Searches were conducted of document holdings. Consideration was also given to
data holdings recorded in Sentinel, Defence’s work health and safety incident reporting
system. No documents falling within the scope of the applicant’s request were located.
25.
Following receipt of the applicant’s external review from the OAIC additional line
areas, being Joint Operations Command (JOC), the Royal Australian Air Force (RAAF),
the Royal Australian Navy (RAN) as well as previous line areas Army and DPG were
requested to conduct fresh searches of document holdings in an attempt to locate documents
potentially responsive to the scope of the applicant’s request. No documents falling within
the scope of the applicant’s request were located.
26.
Additional consideration was also given to data holdings within the Sentinel
reporting system. The following search parameters were utilised for searches conducted in
the Sentinel system:
• separate search terms used:
o ‘MRH-90’,
o ‘Comcare’,
o ‘notifiable’,
o ‘MRH’,
o ‘accident’, and
o ‘serious incident.’
• one combination: ‘MRH-90’ AND ‘incident’ OR ‘log’
• alternative combination: ‘MRH-90 incidents’
• alternative combination: ‘MRH-90’ and ‘incident log’
• alternative combination: ‘MRH-90’ and ‘serious incident.’
27.
The time taken to conduct the above searches was in excess of six hours. The
searches confirmed that no documents were located in a discrete form that responded to the
terms of the applicant’s request.
28.
Consideration was also given to Defence data holdings, and whether a document is
able to be prepared through the ordinary use of a computer in response to the applicant’s
request. It has been determined that this is not possible. Due to the functionality of existing
systems, to produce a document responsive to the applicant’s request, Defence would be
required to undertake significant manual processes to extract and cross-reference potentially
relevant information across multiple data holdings. There would also be human, subjective
assessment required to assess and manually record the information into a discrete document
able to be then considered for its suitability for disclosure. This is addressed further below.
29.
Defence submits it has taken all reasonable steps to locate documents in response to
the applicant’s request and is satisfied that the documents cannot be found, do not exist or
have not been received.
Additional information in response to the applicant’s submissions 30.
The Guidelines provide, at paragraph 3.146, that the interpretation of the scope of an
FOI request impacts search and retrieval of documents within the scope of that request. The
applicant has not provided a timeframe relevant to the terms of his request, and has been
advised that the information sought does not exist in a discrete form.
31.
Defence submits several attempts have been made, as outlined above, to engage with
the applicant to obtain clarification regarding the scope of their request, and to seek to work
with the applicant to revise their scope or to better understand the information held by the
Department. The applicant was unresponsive to these efforts during the processing of their
original request.
32.
In the applicant’s application for an IC review received by the Department on 29
January 2025, Defence notes the applicant has contended the requested information can be
provided under section 17 of the FOI Act.
33.
Paragraph 3.235 of the Guidelines states the section 17 requires an agency to produce
a written document of information stored electronically and not in a discrete written form.
The obligation to produce a written document arises if:
•
the agency could produce a written document containing the information by
using a ‘computer or other equipment that is ordinarily available’ to the agency
for retrieving or collating stored information (s 17(1)(c)(i)), or making a
transcript from a sound recording (s 17(1)(c)(ii)), and
•
producing a written document would not substantially and unreasonably divert
the resources of the agency from its other operations (s 17(2)).
34.
In an effort to process the applicant’s request, consideration was given to section 17
of the FOI Act. However, the business areas confirmed a document could not be generated
as the particular information sought by the applicant through the terms of their existing
request is not naturally captured in the ordinary operations and use of Sentinel.
35.
Searches of work health and safety incidents recorded in the Sentinel system do not
return a result which can be exported to a discrete written form as contemplated in section
17 of the FOI Act.
36.
The production of any document responsive to the terms of the applicant’s request
would require significant manual intervention by subject matter experts and systems
specialists to collate and cross-reference information held in other systems or information
holdings maintained across Defence against Sentinel data holdings. The culmination of this
process would also then require manual compilation of the information into a new
document. These steps go beyond the production of a document through use of existing
reporting or other document production facilities ordinary available to Defence, as required
by section 17 of the FOI Act.
37.
The Sentinel system is Defence’s preferred method for notification and reporting of
all WHS incidents, and it operates primarily on data being manually inputted by individual
users to record a workplace health and safety incident at the time it occurs. It is noted that
the applicant has not provided a timeframe that can be applied when considering the data
holdings.
38.
Due to the nature of the reporting mechanism, there is inevitable variability in the
detail, description and information that users elect to input. This element of the Sentinel data
holdings further increases the need for manual cross-referencing to occur, and/or for subject
matter experts to also undertake further research and consider additional information before
they would be able to manually produce a document that responds to the terms of the
applicant’s request. Defence acknowledges the incident notification obligations under the
Work Health and Safety Act 2011 (Cth). Notwithstanding this, Defence confirms that
information provided under this obligation to Comcare pertains to definitions of injuries, or
exposure to serious risk of injury (Death, Serious Injury/Illness and Dangerous Incident) by
persons themselves that result in the incident being notifiable. Defence does not track data
according to the parameters as contained in the request, and there is no dataset that could
result in a document being generated.
39.
In
Ryan Turner and Department of Home Affairs (Freedom of information) [2024]
AICmr 215, the delegate of the Information Commissioner was satisfied that the required
tasks to generate a document extended beyond a simple or routine database query, and was
satisfied that existing computer programs and systems were not capable of functioning
independently in a manner that would enable it to locate and generate the requested
information in discrete form. Defence submits this is the case in the present matter, being
that the manual processes to produce a document responsive to the request exceed the scope
of what section 17 contemplates.
40.
Additionally, Paragraph 2.47 of the Guidelines confirms that the right of access under
the FOI Act is to existing documents, rather than to information. The FOI Act does not
require an agency or minister to create a new document in response to an FOI request except
in limited circumstances, such as set out in section 17 of the FOI Act.
41.
Defence submits that the OAIC should uphold its decision that no document exists.
Section 17 does not operate on the discretion of applicants and is not intended to impose an
obligation so far as to require an agency to extract information from all its data holdings, or to
consider and collate information held across its documents or external sources for the purpose
of creating a new document responsive to a FOI request.
Conclusion 42.
Based on the above, Defence maintains its position that the applicant’s request is
refused under section 24A [Requests may be refused if documents cannot be found, do not
exist or have not been received] of the FOI Act.
Chris Owens
Assistant Secretary
Governance Group
Department of Defence
15 October 2025
Document Outline
