20160122 FOI Section 24AB Notice to Justin Warren.pdf

GPO Box 9827
Our Reference:   2056/16
In your capital city


www.asic.gov.au

22 January 2016

Mr Justin Warren
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Warren

Freedom of Information Request –
Notice to Identify Documents under Section 24AB of the Act

I refer to your email dated 20 January 2016 seeking access to documents under the Freedom
of Information Act 1982 (FOI Act). Your request is in the following terms:

I am writing to request, under the Freedom of Information Act 1982 (FOI Act), access
to documents containing aggregate statistics on the number of reports of misconduct
received by the Commission, the section of the Corporations Act that applies to the
alleged misconduct, and the status of these requests.

By outcome, I mean that either an investigation was not performed, or a
categorization of the outcome similar to that in paragraph 4 of the latest report on
enforcement outcomes (Report 444, August 2015):

http://download.asic.gov.au/media/3315413/rep444-published-5-august-2015.pdf

E.g. a) commenced investigation, b) completed investigation, c) criminal charges
laid, d) banned individual(s), e) enforceable undertaking accepted, f) directors
disqualified, and/or whatever status categories the Commission has used in the
documents requested.

An example of the categorisation of reports by section of the Corporations Act is
found in Table 2 of the aforementioned Report 444 on page 12.

I further request documents containing these aggregate statistics grouped by month,
quarter, or calendar year, whichever is the most detailed information available in
documents held by the Commission.

I further request documents containing these aggregate statistics for the time period
01 Jan 2006 to 31 Dec 2015, or the largest consecutive time-span within this range
for which the Commission holds documents matching this request.

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22 January 2016

I  advise  that  your  request does  not  comply  with  paragraph  15(2)(b)  of  the  FOI  Act.  This  is
because  your  request  does  not  provide  enough  information  to  enable  me  to  identify  the
documents you are seeking to access. I have included some information in this letter about my
preliminary searches to assist you.

Paragraph  15(2)(b)  states  that  a  request  must  "provide  such  information  concerning  the
document as is reasonably necessary to enable a responsible officer of an agency to identify
it". As paragraph 15(2)(b) has not been met ASIC may, in line with paragraph 24(1)(b) of the
FOI Act, refuse to process your application.

In its current form, it would be my intention to refuse access to the documents sought in your
letter. However, to assist you to make a valid request I make the following comments.

Publicly available statistics on reports of misconduct

ASIC's  2014-2015  Annual  Report  is  publicly  available  at  our  website
www.asic.gov.au. Section 2 sets out outcomes in detail and includes the outcomes for
assessing  reports  of  misconduct.  Your  request  includes  the  number  of  reports  of
misconduct received. Our Annual Report states that in 2014–15, we dealt with 9,669
reports  of  alleged  misconduct.  The  Annual  Report  also  includes  the  total  number
received for the previous financial year.

Your  request  also  refers  to  the  outcome,  sections  of  the  Corporations  Act  2001  and
status. You have referred to ASIC's Enforcement Outcome report as an example of the
outcome breakdown and categorisation of sections of the Act.

The table 2 you have mentioned in your request relates to reports of misconduct that
we received from external administrators regarding the construction industry. As you
may  know,  the  Corporations  Act  2001  requires  external  administrators  to  conduct
preliminary inquiries into the affairs of the company and report to ASIC where these
inquiries reveal evidence that the directors have committed offences.

We  would  need  to  clarify  whether  you  are  seeking  access  to  documents  containing
statistics  specifically  about  statutory  reports  of  misconduct  from  external
administrators or reports of misconduct from the general public.

ASIC's Misconduct & Breach Reporting Team conducts an assessment of every report
of misconduct we receive. We receive reports of misconduct that involve allegations
of breaches of laws other than breaches of the  Corporations Act 2001. For example,
reports of misconduct may set out alleged breaches of the Australian Consumer Law
and not specific sections of the Corporations Act.

For  reports  of  misconduct  from  the  general  public,  our  Annual  Report  provides  a
different breakdown of the outcome to that set out in the Enforcement Outcome report
you have mentioned in your request. Further, not all of the Enforcement team's work
will  stem  from  reports  of  misconduct  that  we  have  received.  For  example,  ASIC's
enforcement outcome may be as a result of an ASIC surveillance and not a report of
misconduct from the general public.

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22 January 2016

The report of misconduct from the general public outcomes are set out in  tables and
figures on page 74 of the Annual Report.

If  you  are  seeking  access  to  statistics  about  reports  of  misconduct  from  external
administrators, you may also be interested in pages 76-77 of our Annual Report.

You  have  also  requested  statistics  from  1  January  2006.  ASIC's  Annual  Reports
contains  statistics  by  financial  year.  When  we  have  clarified  your  request,  we  may
also need to consider if it involves the creation of a document to satisfy a request.

Charges

The first 5 hours of decision making for FOI requests is free. ASIC is entitled to charge for
searching  and  retrieval  of documents  and  decision  making  time  in  excess  of  5 hours. When
we receive a valid request from you we will consider your request for a fee waiver.

As a general rule, an application must be processed within 30 days. However, please note that
in  line  with  section  24AB(8)  of  the  FOI  Act,  the  time  for  processing  your  request  is
suspended  from  the  day  that  you  receive  this  letter. The  processing  time  starts again  on  the
day after ASIC receives from you a request in writing which contains sufficient information
to identify the documents required.

Consultation

You can contact me by telephone on 03 9280 3382 or by email at xxxxx.xxxxx@xxxx.xxx.xx
for  assistance  in  making  your  request  in  a  revised  form  which  removes  the  grounds  for
refusal. If you are going to consult with me for this purpose, you are required to contact me
within 14 days after the date that you receive this letter.

Please note that following any consultation, if you amend the terms of your request, you are
required, in compliance with section 15(2)(a) of the FOI Act to confirm in writing the terms
of your amended request.

Section 24AB(6) of the FOI Act, provides that before the end of the consultation period you
are required to have done one of the following
(a)  withdrawn the request;
(b)  made a revised request;
(c)  indicated that you do not wish to revise the request

If  I do not hear from  you about clarifying your request within 14 days after the date of this
letter your request will, under sections 24AB(6) and s24AB(7) of the FOI Act, be taken to be
withdrawn.

Yours sincerely

Fiona Crowe
Authorised decision-maker under subsection 23 of the FOI Act
For the Australian Securities and Investments Commission