If not delivered return to PO Box 7820 Canberra BC ACT 2610
8 May 2017
Our reference: LEX 25282
Mr Justin Warren
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Warren
Decision on your Freedom of Information request
I refer to your revised request dated 6 February 2017 and received by the Department of
Human Services (the
department) on the same day for access under the
Freedom of
Information Act 1982 (the
FOI Act) to the following documents:
' - The business case document(s) for the Pay As You Go (PAYG) data matching
initiative that is the subject of Question on Notice HS 15 from the Senate Community
Affairs Legislation Committee Budget Estimates hearing on 3 June 2015.
http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/clacctte/estimates/
bud1516/DHS/index
- Documents that describe the algorithm or process used to perform the data
matching that identified the "approximately 1,080,000" discrepancies between PAYG
data and data reported by DHS customers, as referred to in the Answer to Question
HS 15.
- Documents that describe the analysis process for how the value of "historical
discrepancies", as described in the Answer to Question HS 15, was determined. Such
documents should describe the statistical method, the sampling process used,
statistics returned (standard error, mean, confidence interval, etc.), how the likely
average debt value was determined, etc.
- [the final version of the Requirements Specification (or similar document)] containing
the program specifications/requirements used to define how the data matching
process should be implemented by programmers. Such [a document] would refer to,
for example, the use of certain fields to match on such as ABN, Business Name,
Customer Name, etc
Where multiple revisions of documents exist, I am only interested in the version
current at the time the Department refers to in its answer to HS15'.
My decision
The department holds 13 documents (totalling 287 pages) that relate to your request.
PAGE 1 OF 10
I have decided to
refuse access to those documents.
I have decided that the documents that you have requested are exempt under the FOI Act,
including because they are:
documents prepared for and submitted to Cabinet or documents prepared for the
purpose of briefing a Minister on a document to be submitted to Cabinet (section 34);
and
documents that detail the department’s methods or procedures for detecting
breaches of the law (section 37(2)(b)).
Please see the schedule at
Attachment A to this letter for a list of the documents and the
reasons for my decision, including the relevant sections of the FOI Act.
Processing Charge
On 16 February 2017, the department advised you that a preliminary assessment of the
charge for processing your request was $600.00. On the same day, you requested a
reconsideration of charges.
On 20 March 2017, the department notified you of its reconsideration. The assessment of
charges was reduced to $510.00. On 21 March 2017, you requested an internal review of the
reconsideration decision.
On 19 April 2017, the department notified you of the internal review decision, affirming the
assessment of charges of $510.00 for processing your request.
The payment of the charge in full was processed on 5 May 2017.
I have considered the actual cost of processing the request, for the purpose of considering
whether to adjust the amount of the charge to you under Regulation 10 of the
Freedom of Information (Charges) Regulations 1982. I am satisfied that the actual cost of processing the
request was more than the decision on the charge, and accordingly no adjustment is
necessary.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the department, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
reviews of decisions. See
Attachment B for more information about how arrange a review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Jonathon
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
PAGE 2 OF 10
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
LIST OF DOCUMENTS FOR RELEASE
RIGHT TO KNOW - JUSTIN WARREN - LEX 25282
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1
1 – 18
N/A
Costing
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
2
19 – 31
N/A
Costing
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
3
32 – 41
N/A
Costing
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
4
42 – 46
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
5
47 – 60
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
6
61 – 89
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
PAGE 3 OF 10
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
7
90 – 102
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
8
103 - 116
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
9
117 – 122
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
10
123 – 126
N/A
Proposal
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
11
127
N/A
Summary
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
12
128 - 129
N/A
Costing
Exempt in full
s 34
Whole document exempt under section 34 of the FOI Act.
13
130 – 287 11/6/2016
Pay As You Go (PAYG)
Exempt in full
s 37(2)(b)
Whole document exempt under sections 37(2)(b).
Matched Risk Assessment
PAGE 4 OF 10
Department of Human Services
3180049_004.xml
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
Your revised request
' - The business case document(s) for the Pay As You Go (PAYG) data matching
initiative that is the subject of Question on Notice HS 15 from the Senate Community
Affairs Legislation Committee Budget Estimates hearing on 3 June 2015.
http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/clacctte/estimate
s/bud1516/DHS/index
- Documents that describe the algorithm or process used to perform the data
matching that identified the "approximately 1,080,000" discrepancies between
PAYG data and data reported by DHS customers, as referred to in the Answer to
Question HS 15.
- Documents that describe the analysis process for how the value of "historical
discrepancies", as described in the Answer to Question HS 15, was determined.
Such documents should describe the statistical method, the sampling process used,
statistics returned (standard error, mean, confidence interval, etc.), how the likely
average debt value was determined, etc.
- [the final version of the Requirements Specification (or similar document)]
containing the program specifications/requirements used to define how the data
matching process should be implemented by programmers. Such [a document]
would refer to, for example, the use of certain fields to match on such as ABN,
Business Name, Customer Name, etc
Where multiple revisions of documents exist, I am only interested in the version
current at the time the Department refers to in its answer to HS15'.
Request consultation process
On 2 February 2017, I wrote to you providing a notice of intention to refuse your request
under section 24AB(2) of the FOI Act as your request was too big to process. I gave you an
opportunity to consult with the department to revise your request so as to remove the
practical refusal reason.
On 6 February 2017, the department received your revised request.
What I took into account
In reaching my decision I took into account:
your original request dated 14 January 2017 and your revised request on 6 February
2017;
other correspondence with you;
the documents that fall within the scope of your request;
consultation with the Department of Prime Minister and Cabinet regarding Cabinet
material;
whether the release of material is in the public interest;
PAGE 5 OF 10
consultations with departmental officers about:
o the nature of the documents;
o the department's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
Guidelines);
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the documents that you requested are exempt under the FOI Act. My
findings of fact and reasons for deciding that the exemption applies to those documents are
discussed below.
Section 34 of the FOI Act - Cabinet documents
I have applied the exemption in section 34 to documents 1 to 12.
Section 34(1) of the FOI Act provides that:
'A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to Cabinet for its consideration, or is or was proposed by
a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a
document to which paragraph (a) applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.'
Section 34(3) of the FOI Act provides that:
‘A document is an exempt document to the extent that it contains information the
disclosure of which would reveal a Cabinet deliberation or decision, unless the
existence of the deliberation or decision has been officially disclosed.’
Purely factual material in a Cabinet submission, record or briefing is not exempt unless is
disclosure would reveal a Cabinet deliberation or decision that has not been officially
disclosed.
Documents 1 to 12, to which you seek access, are documents submitted or proposed to be
submitted to Cabinet having been brought into existence for the dominant purpose of that
submission.
PAGE 6 OF 10
Department of Human Services
Cabinet documents are wholly exempt under the FOI Act. This exemption is ‘designed to
protect the confidentiality of the Cabinet process and to ensure that the principle of collective
ministerial responsibility (fundamental to the Cabinet system) is not undermined’.1
Cabinet Submission
The exemption in section 34(1)(a) of the FOI Act applies to documents submitted, or
proposed by a Minister to be submitted, to Cabinet for its consideration. This includes
documents that are ‘
prepared simply to inform Cabinet and whose contents are intended to
be noted by its Ministers’.2 Whether a document has been created for the dominant purpose
of submission to Cabinet for its consideration will be a question of fact in each case.3 It is not
required that submission to Cabinet be the only purpose for which the document was
created. Section 34(1)(d) of the FOI Act applies to drafts of documents covered by section
34(1)(a) of the Act, described above.
Paragraph 63 of the Cabinet Handbook states that “[a]s a general rule, Ministers should put
before their colleagues the sorts of issues on which they themselves would wish to be
consulted”. Paragraph 64 of the Cabinet Handbook goes on to state:
‘the kind of issues that would normally require consideration by the Cabinet [include]:
(a) proposals relating to the delivery of the Government’s priorities;
(b) significant or controversial policy issues;
(c) proposals affecting the Government’s financial position, or important financial
commitments’.
Documents 1 to 12 are draft costing documents, New Policy Proposal (NPP) documents and
attachments to submissions which were created for submission to the Cabinet Expenditure
Review Committee. I am satisfied that the documents were required to be created in order
for the Cabinet to consider welfare compliance initiatives proposals and their impact on the
Government’s financial position and the implications in relation to the Government’s Budget.
I am satisfied that the factual circumstances surrounding the creation of the Documents 1 to
12, in the scope of your request, indicate that the documents are exempt under section 34 of
the FOI Act.
Conclusion
In summary, I am satisfied that Documents 1 to 12, as set out in the Schedule, are exempt
under section 34 of the FOI Act. Accordingly I have decided not to release the documents to
you.
Section 37(2)(b) of the FOI Act - documents affecting enforcement of law
I have applied the exemption in section 37(2)(b) to Document 13.
Section 37(2)(b) of the FOI Act provides that:
'(2) A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
1 Guidelines [5.55]
2
Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301, [67].
3
Nick Xenophon and the Department of Defence [2016] AICmr 14.
PAGE 7 OF 10
Department of Human Services
(b) disclose lawful methods or procedures for preventing, detecting,
investigating, or dealing with matters arising out of, breaches or evasions of
the law the disclosure of which would, or would be reasonably likely to,
prejudice the effectiveness of those methods or procedures'
Paragraph 5.109 of the Guidelines provides:
‘Lawful methods and procedures’ are not confined to criminal investigations and can,
for example, extend to taxation investigations. The exemption focuses on an agency’s
methods and procedures for dealing with breaches of the law, where disclosure
would, or could reasonably be expected to, adversely affect the effectiveness of those
methods and procedures.’
Paragraph 5.108 of the Guidelines provides that the exemption under section 37(2)(b) of the
FOI Act requires that two factors are satisfied. There must be a reasonable expectation that
a document will disclose a method or procedure and a reasonable expectation or a real risk
of prejudice to the effectiveness of that investigative method or procedure.
In
Community and Public Sector Union and Department of Health (Freedom of Information)
[2017] AICmr 33, the Australian Information Commissioner considered a document which
contained details of methods and procedures used by the Department of Health and the
Department of Veterans Affairs, in relation to investigating and auditing health claims and
payments. In that matter, the Australian Information Commissioner held that if the document
was disclosed, there would be a reasonable expectation or a real risk of prejudice to the
effectiveness of the auditing and compliance methods and procedures of those agencies.
Accordingly, the document was exempt from release under section 37(2)(b) of the FOI Act.
I have found that Document 13 is exempt under section 37(2)(b) of the FOI Act. The
document relates to points two, three and four of your revised request. The document
describes the risk assessment and detection strategies used by the department in relation to
the Pay as You Go (PAYG) data matching activity.
I am satisfied that there is a reasonable expectation that the release of material in the
Document 13 would disclose information about the department's investigative methods and
procedures in relation to potential cases of non-compliance with social security law. This
includes the precise data used in the PAYG data matching activity and the department’s
approach to evaluating and identifying potential instances of non-compliance. I also note the
FOI Act does not control or restrict any subsequent use or dissemination of information
released under the FOI Act.
I am also satisfied that there is a reasonable expectation of prejudice to the effectiveness of
the department's data matching activities. If this information were made publically available, it
would have the capacity to undermine the department's ability to detect, investigate and take
action in response to potential non-compliance with the social security law. Moreover, it
would potentially facilitate non-compliance by some customers by providing a means of
understanding how to circumvent the department's investigative methods and avoid detection
in the commission of welfare fraud.
For the reasons set out above, I am satisfied that the material is exempt under section
37(2)(b) of the FOI Act and will not be released to you.
PAGE 8 OF 10
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss our
decision. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (the department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 9 OF 10
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Australian Information Commissioner generally prefers FOI applicants to seek
internal review before applying for external review by the Australian Information
Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request
Include your contact details
Set out your reasons for objecting to the department's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act,
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 10 OF 10
Department of Human Services
