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 (the FOI Guidelines), in particular paragraphs [2.33] — [2.36], [3.80]
— [3.84] and [3.182] — [3.188]
relevant case law, in particular Collection Point Pty Ltd v Commissioner of Taxation
 FCAFC 67.
Documents do not exist (s 24A)
This office does not have the document you requested in its possession. As a result I am
refusing your request for access to a document containing information relating to the use of
the powers in ss 44 and 45 of the Privacy Act 1988
under s 24A of the FOI Act.
Section 24A of the FOI Act relevantly provides:
Document lost or non-existent
An agency or Minister may refuse a request for access to a document if:
al reasonable steps have been taken to find the document; and
the agency or Minister is satisfied that the document:
is in the agency’s or Minister’s possession but cannot be found; or
does not exist.
The FOI Guidelines explain:
The Act is silent on what constitutes ‘al reasonable steps’. Agencies should undertake a reasonable
search on a flexible and common sense interpretation of the terms of the request.1
The Information Commissioner has not used his power under s 45 of the Privacy Act 1988
examine witnesses. As a result, the OAIC holds no document which contains information
about the date the power in s 45 was used, the name of the respondent, or what was sought.
In relation to the exercise of powers under s 44 of the FOI Act, I have asked all relevant staff,
including the Assistant Commissioner of the Dispute Resolution Branch, the Principal Legal
Officer, and the reporting team whether the OAIC has a document containing the information
specified in your freedom of information request. They have advised me that no such
document is held by this office.
I am satisfied that all relevant searches have been undertaken to locate the document you
have requested and that no document exists.
Requests involving use of computers etc. (s 17)
In your request for access you asked, if the OAIC does not have the information sought in a
discrete record, that the OAIC follow s 17 of the FOI Act and produce the information as a
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under
s 93A of the Freedom of Information Act 1982
www.oaic.gov.au | 2
Section 17 of the FOI Act provides:
(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 col ating stored information; or
(ii) the making of a transcript from a sound recording held in the agency; the agency shal
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 substantial y and
unreasonably divert the resources of the agency from its other operations
In Collection Point Pty Ltd v Commissioner of Taxation
, the full bench of the Federal Court
looked at whether a computer is ordinarily available to an agency. The Court took into
account the age of the provision and the fact that a computer being ordinarily available would
now include its software. The Court decided that:
If a new computer program is required to be written to produce the document then a computer
is not being used in a manner that is ordinarily available to the agency because an extraordinary
step is required to be taken.2
The Court confirmed the view of the Administrative Appeals Tribunal that:
The documents requested by Col ection 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
col ating 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.3
The FOI Guidelines relevantly explain:
[In Col ection 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 col ate or retrieve stored information and
to produce the requested document.’ This wil 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.4
Col ection Point Pty Ltd v Commissioner of Taxation
 FCAFC 67 .
[3.185] (footnotes omitted).
www.oaic.gov.au | 3
Privacy complaints have been recorded on the current case management database (Resolve)
since 12 June 2012. Prior to this date, privacy complaints were recorded on a case
management system that has since been decommissioned. Staff in the OAIC can no longer
access this system. However even if they did have access, it is unlikely the information you
seek could be extracted because of that system’s limited functionality (one of the reasons it
was replaced). The OAIC has retained migrated records from the decommissioned case
management system, stored in monthly batches. However to compile the information you
have requested into a discrete document would require a manual search of each individual
record and manual collation of the results. This office is not able to produce a written
document containing the information you seek in a discrete form using a computer or other
equipment ordinarily available to the OAIC.
With regard to privacy complaints received after 12 June 2012 (which are recorded on the
current case management database, Resolve), we are not able to compile a written document
containing the information you seek in a discrete form using a computer or other equipment
ordinarily available to the OAIC.
The case management database used to record privacy complaints from 12 June 2012,
contains workflows which can be used to generate documents such as s 44 notices. If these
workflows are used by staff, it is possible to run a report to identify al complaints in which
the s 44 workflow
was used and the date the s 44 action was completed. However not al staff
use these workflows to generate notices (which can be manual y generated and added to the
database) and not all instances of the workflows being generated will result in a s 44 notice
being issued (for example, a case officer may consider a s 44 notice is needed and generate a
notice for clearance by their manager, but their manager disagrees and the notice is not sent).
As a result, the only way to create a document containing every instance of a s 44 notice
being issued, is to manually examine every privacy complaint made to the OAIC since 12 June
2012 and compile a document containing the information you have requested. This is not
what s 17 of the FOI Act requires. Section 17 only requires a new document to be created
when it is possible to do so using a computer or other equipment (such as software) to extract
data and create a new document. It is not possible, using our case management database or
software, to generate a document containing the information you have requested.
Your request for access to the name of the respondent the power in s 44 was used on appears
to be based on an assumption that the power can only be used on the respondent to the
privacy complaint. The power in s 44 is not limited to the respondent; it can be used on any
person or entity who may have information or documents relevant to an investigation. This
information could only be obtained through a manual review of each s 44 notice generated.
Section 17 of the FOI Act does not require this office to do this.
For the above reasons, I am satisfied that the documents you requested cannot be produced
by a computer or other equipment ordinarily available to the OAIC. As a result, the OAIC is not
required to create a document under s 17(1) of the FOI Act to satisfy your request.
www.oaic.gov.au | 4
Dispute Resolution Branch
30 June 2017
www.oaic.gov.au | 5
If you disagree with my decision
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review wil be conducted, to the extent possible, by an officer of the OAIC who
was not involved in or consulted in the making of my decision. If you wish to apply for an
internal review, you must do so in writing within 30 days. There is no application fee for
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If you
wish to apply for IC review, you must do so in writing within 60 days. Your application must
provide an address (which can be an email address or fax number) that we can send notices
to, and include a copy of this letter. A request for IC review can be made in relation to my
decision, or an internal review decision.
It is the Information Commissioner’s view that it wil usual y not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
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 my decision be considered 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.
Applications for internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you may submit your application by email to [OAIC request email], or by fax on
02 9284 9666.
www.oaic.gov.au | 6