LEX 28482 Internal Review Decision.pdf

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

18 April 2017

Our reference:  LEX 28482
Mr Graeme Smith

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Smith

Freedom of Information Request – Internal Review Decision

I refer to your correspondence, dated 16 March 2017 and received by the Department of
Human Services (the department) on that same date. You have sought an internal review of
the department’s decision on 14 March 2017 in relation to your original request (LEX 27077)
(the Primary Decision).
I am authorised under subsection 23(1) of the FOI Act to make internal review decisions
under section 54C of the FOI Act.  My decision and reasons are set out below.
Background
The department received your original request on 11 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?’
On 16 March 2017, the department provided you with the Primary Decision to refuse your
request, on the basis that all reasonable steps had been taken to locate the documents you
have requested and they do not exist.
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On 16 March 2017, you requested an internal review of the Primary Decision.  You stated:
‘I am writing to request an internal review of Department of Human Services's
handling of my FOI request 'Value of underpayments identified in the Centrelink Debt
Recovery Process (wrt quoted overpayment figure of $300million)'.

The Minister (Mr Tudge) has publically stated that his main concern is to ensure the
all claiments receive the correct amount: to quote his words "no more and no less".
He has publically quoted a figure ($300 million) relating to overpayments detected,
this indicates that a process exists for its calculation. (Actual payment - due payment)

There are only three possible states for such a calculation:
1. Positive-overpayment ($ figure quoted by Minister Tudge), 2. Zero-Accurate
payment made, 3. Negative-underpayment

If the system checks the correct amount is paid 2. (the value of these must be known)
and Mr Tudge has quoted a figure for underpayment of 1. as $300million, then
logically the figure I seek 3. is the remainder.
Total budget spend less (1. and 2.) will give a figure for underpayments (3.).’

The department acknowledged your request for an FOI Internal Review on 20 March 2017.
Internal Review Decision
I have reviewed the Primary Decision and made a fresh decision on your request.
Accordingly, I have decided to refuse your request for access under section 24A of the FOI
Act.  This is on the basis that all reasonable steps have been taken to locate the requested
documents and the department is satisfied that no such documents exist.

The reasons for my decision, including the relevant sections of the FOI Act, are discussed
below.
Reasons for my decision
In reaching my decision, I took into account:
•  the terms of your original request dated 11 February 2017;
•  the Primary Decision dated 14 March 2017;
•  the terms and submissions of your internal review request dated 16 March 2017;
•  documents falling within the scope of your request;
•  consultations with department 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); and
•  The FOI Act.
Section 24A of the FOI Act – the Documents do not exist

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
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Department of Human Services

(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.

The Primary Decision advised that the Debt Management and Compliance Risk Branches do
not produce reports on the value of underpayments or reimbursements. The data is held on
individual records and is not compiled for broader analysis.
For the purpose of this internal review, I have reviewed your original request and the
responses from the relevant business areas in relation to the original request, and I have
determined that no compiled reports exist which contain the information that you originally
requested.  On the basis of these further investigations and consultations, 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 cannot be located or 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;
…
(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.

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.’

I affirm the Primary Decision in that your request for data would require a computer
programmer to write a program that does not currently exist within the department.  In order
to provide the requested data, numerous approvals would need to be obtained from relevant
areas to develop the computer program required.  It would then take a significant amount of
time to extract the data which would be costly to the department.
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 it 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
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Department of Human Services

extraordinary steps 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 have further investigated this matter and reviewed the responses from the relevant areas
within the department.  Consistent with the Primary Decision, 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 uphold the Primary Decision and 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 have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.

Yours sincerely

Lisa
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

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

Attachment A

INFORMATION ON RIGHTS OF REVIEW

FREEDOM OF INFORMATION ACT 1982

Application for review of decision

The Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of
this decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this
decision by the Information Commissioner.

Information Commissioner review

You must apply in writing within 60 days of the receipt of the decision letter and you can
lodge your application in one of the following ways:

Online: www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Email: xxxxxxxxx@xxxx.xxx.xx

An application form is available on the website at www.oaic.gov.au. Your application should
include a copy of the notice of the decision that you are objecting to (if one was provided),
and your contact details. You should also set out why you are objecting to the decision.

Complaints to the Commonwealth Ombudsman

You may 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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