DEFENCE FOI 405/25/26 – STATEMENT OF REASONS UNDER THE FREEDOM
OF INFORMATION ACT 1982 – INTERNAL REVIEW DECISION
1.
I refer to JS (the applicant)’s email of 19 October 2025 seeking an internal review,
under section 54 of the Freedom of Information Act 1982 (Cth) (FOI Act), of the decision
dated 16 October 2025 on their request for access to documents under the FOI Act.
Background
2.
On 12 September 2025, the applicant made the following request for documents under
the FOI Act to the Department of Defence (Defence):
Contractual Arrangements
The current head contract (and any variations or schedules) between the Department
of Defence and Toll Transitions Pty Ltd for the provision of Defence member
relocation and removal services.
In particular, I seek any schedules, annexures, or statements of work that set out:
Service standards or key performance indicators (KPIs),
Complaints-handling and dispute-resolution obligations, and
Responsibilities of Toll in relation to subcontracted removalists.
Performance and Compliance
The most recent 12 months of:
Departmental audits, reviews, or performance reports assessing Toll’s compliance
with the above service standards,
Any summary reports provided by Toll to Defence under contractual reporting
obligations.
Scope and exclusions:
I do not seek access to personal information of Defence members or private
individuals.
I do not seek routine correspondence or duplicate copies of the same document.
I accept that commercially sensitive financial details (such as unit pricing) may be
redacted under s 47 of the Act, provided the remainder of the contract and KPIs are
released.
I am an ADF member directly affected by the operation of this contract and seek these
documents to better understand the contractual standards and oversight mechanisms
in place.
3.
On 29 September 2025, Defence issued the applicant a notice under section 24AB of
the FOI Act of the intention to refuse the request made by the applicant on the basis that a
practical refusal reason existed.
4.
On 3 October 2025, the applicant responded to the section 24AB notice and advised:
…I ask that Defence provide a schedule or index of the 108 documents identified.
…I therefore ask Defence to provide:
• An index of the documents identified; and
Defending Australia and its National Interests
2
• An indication of whether they can be grouped (e.g. head contract, KPI schedules,
complaints-handling procedures, KPI reports, audits).
Original decision
5.
On 16 October 2025, the original decision was provided to the applicant. The original
decision refused the request under section 24A of the FOI Act [requests may be refused if
documents cannot be found, do not exist or have not been received].
6.
The decision-maker noted at paragraph 12 of their statement of reasons that an index
reflecting the 108 documents identified for this particular FOI request (405/25/26) did not
exist at the time of the applicant’s request, nor is there a requirement to create a new
document to assist the applicant in revising their scope.
7.
On 19 October 2025, the applicant applied for internal review.
8.
On 19 November 2025, Defence consulted with the applicant in an effort to clarify the
scope of the internal review including:
a.
advising the applicant the consultation notice provided suggestions on how
they might wish to revise their request, and
b.
inviting the applicant to make a fresh request focused on the subset of the list
of categories the applicant was seeking in their response to the consultation notice to
assist them revise the request.
9.
On 3 December 2025, the applicant responded with the following:
My preference is for the internal review team to continue to process my internal
review request.
10.
Defence has taken the applicant’s response above as the revised scope on internal
review.
11.
On 3 December 2025, the Office of the Australian Information Commissioner (OAIC)
granted Defence further time to 18 December 2025 to deal with the internal review
application under section 54D of the FOI Act.
Contentions
12.
In their application for internal review, the applicant wrote:
I seek internal review of the decision dated 16 October 2025 refusing access under s
24A(1) in FOI 405/25/26.
Summary of the decision under review
The decision refuses access to “an index or schedule” of documents previously
identified during consultation, on the basis that such an index does not exist, and that
the Department is not required to create a new document. The decision states that
searches in the Defence records management system (Objective) did not locate a pre-
existing index.
Grounds for review
Defending Australia and its National Interests
4
13.
The purpose of this statement of reasons is to provide the applicant with a fresh
decision in relation to their request.
Reviewing officer
14.
I am authorised to make this internal review decision under arrangements approved by
the Secretary of Defence under section 23 of the FOI Act.
Scope of internal review
15.
The question on internal review is whether Defence possesses a document in response
to the applicant’s request revised through the practical refusal consultation process. Secondly,
I have considered whether section 17 of the FOI Act [requests involving use of computers]
applies.
Internal review decision
16.
After careful consideration, I have decided to uphold the original decision and refuse
the applicant’s request under section 24A of the FOI Act.
Material taken into account
17.
In arriving at my decision, I had regard to:
a.
the scope of the applicant’s request and subsequent internal review application;
b.
the original decision;
c.
relevant provisions in the FOI Act;
d.
the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the Guidelines); and
e.
the outcome of previous searches.
FINDINGS AND REASONS
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 states:
(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.
Defending Australia and its National Interests
5
19.
The Guidelines, while noting that the FOI Act is silent on what constitutes ‘all
reasonable steps’, provide at paragraphs 3.144 and 3.145 that:
Agencies and ministers should undertake a reasonable search on a flexible and
common sense interpretation of the terms of the FOI request. What constitutes all
reasonable steps will depend on the circumstances of each FOI request and will be
influenced by the normal business practices in the agency’s operating environment...
…’Reasonable’ in the context of s 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.
20.
The applicant amended their initial request following the consultation notice dated 29
September 2025, seeking access to an index of the identified documents together with details
regarding the nature of the material within scope.
21.
As advised in the consultation notice dated 29 September 2025, Security and Estate
Group (SEG) identified over 100 documents, estimated to be in excess of 800 pages, which
would initially need to be reviewed. In response, the applicant revised their request to include
an index of identified documents.
22.
As part of the processing of this internal review, I have considered the document
holdings, and determined that no document responsive to the terms of the applicant’s revised
request exist. I have been informed by searches undertaken by the relevant line area, during
the processing of the original request.
23.
I have also had regard to paragraph 2.47 of the Guidelines, which clarify that:
The right of access under the FOI Act is to existing documents, rather than to
information, for example, answers to a series of questions on a topic. The FOI Act
does not require an agency or minister to create a new document in response to an
FOI request except in the limited circumstances set out in ss 17 and 20.
24.
Further, I have had regard to paragraph 2.48 of the Guidelines, which clearly
expresses:
That the right of access applies to documents that exist at the time the FOI request
was made. An FOI applicant cannot insist that their FOI request cover documents
created after the FOI request is received.
25.
I make reference to the consultation between the applicant and Defence, wherein
advice was provided to the applicant that it is open to them to make a fresh request, seeking
access to documents related to the processing of the original request. I also note that advice
has been given to the applicant regarding methods they can use to seek to reduce the practical
refusal reason that existed in the original request, such as specifying particular document
types, or reducing the date range relevant to the request.
26.
I am satisfied that the decision to refuse the applicant’s request under section 24A of
the FOI Act should be upheld.
Defending Australia and its National Interests
6
Section 17 – Requests involving use of computers
27.
Section 17 of the FOI Act states:
(1) Where:
(a) request (including a request in relation to which a practical refusal reason
exists) is made in accordance with the requirements of subsection 15(2) to an
agency;
(b) it appears from the request that the desire of the applicant is for information
that is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided
with a computer tape or computer disk on which the information is recorded; and
(c) the agency could produce a written document containing the information in
discrete form by:
(i) the use of a computer or other equipment that is ordinarily available
to the agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in the
agency;
The agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this ACT
applies as if the agency had such a document in its possession.
28.
In relation to section 17 of the FOI Act, paragraph 3.235 of the Guidelines provides:
Section 17 requires an agency to produce a written document of information that is
stored electronically and not in a discrete written form, if it does not appear from the
request that the applicant wishes to be provided with a computer tape or disk on
which the information is recorded. …
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)).
If those conditions are met, the FOI Act applies as if the applicant had requested
access to the written document and it was already in the agency’s possession.
29.
Paragraph 3.237 and 3.238 of the Guidelines further provides (bold emphasis added):
In Collection Point Pty Ltd v Commissioner of Taxation the Full Federal Court held
that the two conditions specified in [3.204] are distinct and to be applied
sequentially....
The Federal Court further held that the reference in s 17(1)(c)(i) to a ‘computer or
other equipment that is ordinarily available’ means ‘a functioning computer system
Defending Australia and its National Interests
