LEX 27077 S24A no documents DECISION.PDF.pdf

If not delivered return to PO Box 7820 Canberra BC ACT 2610

14 March 2017

Our reference:  LEX 27077
Mr Graeme Smith

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Smith
Decision on your Freedom of Information request
I refer to your request dated 11 February 2017 and received by the Department of Human
Services (the department) on 13 February 2017 for access under the Freedom of
Information Act 1982 (the FOI Act) to the following documents:
‘….
The Minister (Mr Tudge) has stated that the main concern of this 'system' is to ensure
the all claiments receive the correct amount: to quote his words "no more and no
less".
...
This statement indicates that as well as identifying over payments ("no more"- the
value of $300m has been publically quoted) the system must also identify occasions
when there have been underpayments (no less).
I request that you provide me with details as to:
what value of underpayments have been identified by the process?
Additionally, what value of reimbursements have been sent out to correct this?’
My decision
I have decided to refuse your request for access under section 24A of the FOI Act on the
basis that all reasonable steps have been taken to locate the documents you have requested
and I am satisfied that they do not exist. Please see Attachment A for the reasons behind
my decision.

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.
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Further assistance
If you have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.

Yours sincerely

Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
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Department of Human Services

Attachment A

REASONS FOR DECISION
What you requested
‘….
The Minister (Mr Tudge) has stated that the main concern of this 'system' is to ensure
the all claiments receive the correct amount: to quote his words "no more and no
less".
...
This statement indicates that as well as identifying over payments ("no more"- the
value of $300m has been publically quoted) the system must also identify occasions
when there have been underpayments (no less).
I request that you provide me with details as to:
what value of underpayments have been identified by the process?
Additionally, what value of reimbursements have been sent out to correct this?’
What I took into account
In reaching my decision I took into account:
  your original request dated 11 February 2017;
  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.
Section 24A of the FOI Act

Section 24A of the FOI Act provides that:

(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.

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Department of Human Services

The Debt Management Branch who have responsibility for the subject matter of your request,
has advised that there are no compiled reports that contain the information you seek. The
relevant data is not collated in any format.

On the basis of these searches, I am satisfied that in accordance with section 24A of the
FOI Act:

1.  all reasonable steps have been taken to find the documents; and
2.  the documents do not exist.

Section 17 of the FOI Act

Section 17 of the FOI Act relevantly provides that:

(1)  Where:
(a)
a request … 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
(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 requested 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.

(2)  An agency is not required to comply with subsection (1) if compliance would
substantially and unreasonably divert the resources of the agency from its other
operations.

Paragraph 3.185 of the Guidelines provides:

‘…the reference in s 17(1)(c)(i) to a ‘computer or other equipment that is ordinarily
available’ means ‘a functioning computer system including software, that can produce
the requested document without the aid of additional components which are not
themselves ordinarily available … [T]he computer or other equipment … must be
capable of functioning independently to collate or retrieve stored information and to
produce the requested document.’

The Debt Management and Compliance Risk Branches do not produce reports on the value
of underpayments or the value of reimbursements. The data is held on individual records and
is not compiled for broader analysis.

In order to extract the data relevant to your request, the department would be required to
instruct a computer programmer to write a program that does not currently exist. Accordingly,
there would be a substantial cost and delay involved in extracting the data, which would
involve acquiring numerous approvals from the relevant areas of the department, developing
the computer programming required and performing the data extraction.

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Department of Human Services

The decision of the Federal Court in Collection Point Ptd Ltd v Commissioner of Taxation
[2012] FCA 720 (affirmed by the Full Court of the Federal Court in Collection Point Pty Ltd v
Commissioner of Taxation [2013] FCAFC 67) makes clear that where a new computer
program is required to be written to produce a written document, then a computer is not
being used in a manner that is ‘ordinarily available’ to the agency because of the
extraordinary step that is required to be taken. In considering the obligations of the Australian
Taxation Office (ATO), the Court held (at [22]):
The documents requested by Collection Point were not capable of being
produced by the ATO by the use of a computer, being a use that is ordinarily
available to the ATO for retrieving and collating stored information. Instead, to
answer the request, the ATO would have been required to use a computer in an
extraordinary manner, as compared to the ordinary processes available for the
retrieval and collation of such material. Put simply, the ATO would be required to
use a computer in a manner other than that which is ordinarily available to it.
I am satisfied that to produce a document containing data relevant to your request, the
department would not be using a computer in a manner that is ordinarily available.

Based on the above, I am satisfied that section 17 of the FOI Act does not apply to your
request, as the department cannot use an ordinarily available computer system to produce a
written document containing the information you have requested.

If you would like to access information that is readily available relating to the services and
payments that the department delivers, you can access this through making a request via
xxxxxxxxxx@xxxxxxxxxxxxx.xxx.xx. Further, I note that the Australian Government publishes a
comprehensive suite of data online at: http://data.gov.au.

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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 an FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of a 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.
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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 Office of 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 Information Commissioner and Commonwealth Ombudsman
Information Commissioner

You may complain to the 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 Information Commissioner must be made in writing.
The Information Commissioner's contact details are:

Telephone:      1300 363 992
Website:          www.oaic.gov.au

Commonwealth Ombudsman

You may also complain to the 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 Ombudsman may be made in person, by telephone
or in writing. The 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.

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Department of Human Services