www.oaic.gov.au
GPO Box 5218 Sydney NSW 2001
P +61 2 9284 9800 F +61 2 9284 9666
E
xxxxxxxxx@xxxx.xxx.xx
Enquiries 1300 363 992 TTY 1800 620 241
ABN 85 249 230 937
Our reference: FOIREQ17/00024
Dear Ms Pane
Outcome of your Freedom of information request for internal review
I am writing to advise you of my decision in response to your application of 21 April 2017 for internal
review of an Office of the Australian Information Commissioner (OAIC) decision of 21 April 2017 (OAIC
reference FOIREQ17/00018) refusing access to certain documents you requested under the
Freedom
of Information Act 1982 (the FOI Act).
An internal review decision is a ‘fresh decision’ made by a person other than the person who made the
original decision (s 54C of the FOI Act).
Background
On 23 March 2017, you requested access to OAIC case management reports. Specifically:
Reports that show the status of the 32 conventional privacy complaints aged 361 days or older
open as at 21 December 2016 (as in the report run by the OAIC and provided to you previously)
which includes the following information:
a. How many are still open and yet to be resolved.
b. For each one, how many days they have been open.
c. For any that have been closed, the number of days each one was open and the case outcome
recorded.
Reports that show the status of the 18 IC Reviews aged 360 days or older open as at
13 December 2016 (as in the report run by the OAIC and provided to you previously) which
includes the following information:
a. How many are still open and yet to be resolved.
b. For each one, how many days they have been open.
c. For any that have been closed, the number of days each one was open and the IC decision
outcome recorded.
On 21 April 2017, the OAIC made a decision on your request. That decision found that documents
within the scope of your request do not exist (s 24A) and noted that, because the reports you
requested cannot be produced by a computer or other equipment ordinarily available to the OAIC the
OAIC is not required to create a document under s 17(1) of the FOI Act.
On 21 April 2017, you applied for internal review of that decision. In your application, you said:
The FOI request made was refused on the grounds that "The report released to you in December
contained no case numbers to identify which cases were open longer than 360 days on the date of the
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report... The OAIC is unable to reproduce this report now to identify the specific cases open longer than
360 days in December 2016 and therefore to determine their current status"
While it is true that the case numbers on that report were manually removed on the copy of the report
provided to me under FOI (as I consented to their removal), the original report that the OAIC ran did
include them. The OAIC retained the original unmodified report [the original report], which does have the
case numbers, and despite the claims made by the OAIC, can provide the information requested.
…
The OAIC retained the unedited report, as is required by the Archives Act, and it would be part of the FOI
decision file. It is therefore deeply misleading to claim the OAIC does not have access to the case file
numbers in question, and the fact the OAIC has made this claim in complete bad faith is appalling, not to
mention unlawful.
You appear to be challenging the statement in the OAIC’s initial decision on your FOI request that “The
report released to you in December contained no case numbers to identify which cases were open longer than
360 days on the date of the report...” because you assert that there must be an ‘original report’ that contained
those case numbers. I draw you attention to the table in the document provided to you on 23 December
2016 in relation to privacy complaint and IC review matters that were still ‘open’ at the time,
reproduced here:
Open privacy complaints age by month Open Status: = OpenRun by: Ryan McConville @21/12/2016 10:35:21 AM
Elapsed Days Count
0 - 30
210
31 - 60
185
61 - 90
191
91 - 120
106
121 - 150
127
151 - 180
49
181 - 210
28
211 - 240
38
241 - 270
21
271 - 300
17
301 - 330
15
331 - 360
9
> 361
2122*
*Note: 2090 of these complaints relate to two specific alleged
privacy breaches with mutiple complainants in relation to each
alleged breach.
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Open IC Reviews age by month Open Status: = Open
Run by: Ryan McConville @13/12/2016 11:33:16 PM
Elapsed Days Count
0 - 30
55
31 - 60
53
61 - 90
45
91 - 120
40
121 - 150
26
151 - 180
23
181 - 210
17
211 - 240
12
241 - 270
13
271 - 300
10
301 - 330
8
331 - 360
11
> 360
18
From my own enquiries, I have established that these two reports, in response to your FOI request of
25 November 2016 (ref: FOIREQ16/00051), were created from our case management system and did
not provide individual file numbers as part of the reports. They were simply statistical reports run from
the case management system.
Therefore, the statement made in the initial decision on your request
“The OAIC is unable to reproduce
this report now to identify the specific cases open longer than 360 days in December 2016 and
therefore to determine their current status” is correct.
In your response (reproduced above), you state:
“While it is true that the case numbers on that report were
manually removed on the copy of the report provided to me under FOI (as I consented to their removal), the
original report that the OAIC ran did include them.”
While this is true for the reports related to ‘closed’ privacy complaint and IC review matters provided
to you in December 2016 it is not correct in relation to the tables above related to ‘open’ privacy
complaint and IC review matters. There was an ‘original report’ of ‘closed’ cases which included file
file numbers but there was no ‘original report’ of ‘open’ matters that included individual file numbers
or indeed any information about individual files. Your FOI request, which this internal review relates
to, is only in relation to matters that were open in December 2016.
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Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI requests.
I have decided to refuse your access to the documents you seek under s 24A of the FOI Act on the
basis that a document within the scope of your request does not exist and that for the purposes of
s 17 of the FOI Act, I am satisfied that a report containing the information you seek cannot be
produced by a computer or other equipment ordinarily available to the OAIC.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
the original decision case file FOIREQ17/00018
the November/December 2016 FOI request case file FOIREQ16/00051
the FOI Act, in particular ss 17 and 24A
the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act to which regard must be had in performing a function or exercising a power under the
FOI Act (FOI Guidelines), in particular paragraphs [3.80] — [3.84] and [3.182] — [3.188],
and
your submissions.
Document do not exist or cannot be found (s 24A) / requests involving computers (s 17)
The document you seek is a report containing information relating to 32 specific privacy complaint
matters and 18 specific Information Commissioner review matters.
Section 24A of the FOI Act relevantly provides:
(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
The FOI Guidelines relevantly explain:
The Act is silent on what constitutes ‘all reasonable steps’. Agencies should undertake a reasonable
search on a flexible and common sense interpretation of the terms of the request.1
You do not contend that the OAIC is in possession of a physical document containing the information
you seek. Rather, you have requested that the OAIC produce a report in discrete form from its case
management system in accordance with s 17 of the FOI Act.
1
FOI Guidelines [3.81].
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Section 17 relevantly provides:
(1) Where:
(a)
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.
(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
The FOI Guidelines relevantly explain:
[In Collection Point Pty Ltd v Commissioner of Taxation the Full Federal] Court … 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 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.’ This will be a question of fact in the individual case, and may
require consideration of ‘the agency’s ordinary or usual conduct and operations’. For example, new
software may be ordinarily available to an agency that routinely commissions or otherwise obtains such
software, but not to an agency that does not routinely do such things.2
The OAIC case management system contains a number of report templates that allows OAIC officers
to produce reports by use of the computer system ordinarily available to them. Reports are produced
from the system data at a point in time.
I have undertaken enquires within the OAIC. From those enquiries, I am satisfied that the OAIC cannot
produce a report based on the search terms you have defined. Those terms being the change in status
of 50 open privacy complaint and IC review matters from December 2016 to April 2017, and for each
case how many days it has/had been open and the case outcome recorded.
2
FOI Guidelines [3.185] (footnotes omitted).
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On my reading of the original decision, I understand that the decision maker refused your request for
the reason that the report you now seek cannot be produced by the OAIC’s case management system.
In particular, I note that the decision maker said:
A report, created in April 2017, showing the outcome of cases open longer than 360 days in December
2016, is not a report that is ordinarily available in the OAIC’s case management system
The OAIC does not routinely commission report templates or develop software. Rather, the OAIC’s
case management system is utilised by its case officers for the day-to-day management of cases; and
by OAIC Management and its Executive for statistical analysis in accordance with the OAIC’s
operational and reporting requirements.
There is no automated report functionality, ordinarily available, that would allow a comparison to be
made between the status of the particular open cases in December 2016 that you have requested, and
which the reports run from our case management system (shown above) included in counts of all
open privacy complaint and IC review matters but which were not, in and of themselves, individually
recorded in the production of those reports of open matters and the status of those individual matters
in April 2017. Nor, do I believe that the OAIC is required to develop this functionality in order to create
a document to satisfy an FOI request.
Accordingly, I am satisfied that the OAIC is not required to produce a document containing the
information you seek for the purposes of s 17 of the FOI; Act and a document within the scope of your
request does not exist for the purposes of s 24A of the FOI Act.
Your review rights
If you disagree with my decision, you have the right to seek review by the Information Commissioner
(IC review). If you wish to apply for IC review, you must do so in writing within 60 days from the date
of my decision.
I note that, where it is in the interest of the administration of the FOI Act to do so, the Information
Commissioner may decide not to undertake an IC review, to allow the applicant to go direct to the
Administrative Appeals Tribunal (AAT) for a full merit review of the FOI decision. The Information
Commissioner considers that it will usually not be in the interests of the administration of the FOI Act
to conduct an IC review of an FOI decision made by the agency that the Information Commissioner
heads: the OAIC.
For this reason, if you make an application for IC review of my decision, it is likely that the Information
Commissioner will decide (under s 54W(b) of the FOI Act) not to undertake an IC review on the basis
that it is desirable that any review be undertaken by the AAT. Section 57A of the FOI Act provides that,
before you can apply to the AAT for review of an FOI decision, you must first have applied for IC
review.
Complaints about the handling of FOI requests
If you are not satisfied with the way that your FOI request has been handled, you can complain to the
Information Commissioner or the Commonwealth Ombudsman.
If you wish to complain to the Information Commissioner the OAIC prefers that you use the FOI
complaint application form available at
www.oaic.gov.au/foi/complaints.html. Other ways to contact
the OAIC to lodge an FOI complaint are by email to
xxxxxxxxx@xxxx.xxx.xx, by facsimile to 02 9284
9666 or by post to GPO Box 5218, Sydney NSW 2001. For further information, please call our enquiries
line on 1300 363 992.
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If you wish to complain to the Commonwealth Ombudsman, they can be contacted on 1300 363 072.
Other contact details are available at their web site:
www.ombudsman.gov.au.
Yours sincerely
Ken Richards
Assistant Director
Freedom of Information
22 May 2017
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