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 [3.80] — [3.84].
Documents do not exist (s 24A)
Section 24A of the FOI Act relevantly provides:
Document lost or non-existent
(1)
An agency or Minister may refuse a request for access to a document if:
(a)
al 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
(i )
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
I have asked all relevant staff, including the Deputy Commissioner and the Principal Legal
Officer, whether the Information Commissioner has ever applied to the Federal Court under
s 98 of the
Privacy Act 1988 for an injunction to restrain a person from engaging in conduct
that constitutes, or would constitute, a contravention of the
Privacy Act 1988.
I have been advised that the Information Commissioner has not applied for an injunction
under s 98 of the
Privacy Act 1988.
I am satisfied that all relevant searches have been undertaken to locate the document you
have requested and that no document is in the possession of the OAIC.
As a result, I am refusing your request for access under s 24A of the FOI Act.
Further information – applications under s 98
I understand that other parties have sought orders under s 98 of the
Privacy Act 1988.
You can search for cases in which other parties have sought orders under s 98 of the
Privacy
Act 1988 using the ‘Noteup’ facility on the Australasian Legal Information Institute (AustLI )
website (www.austlii.edu.au).
You can access the ‘Noteup’ page by going to s 98 of the
Privacy Act 1988 (here is a link -
http://www.austli .edu.au/au/legis/cth/consol act/pa1988108/s98.html). On the top of the
page there are a number of tabs, the sixth of which is ‘Noteup’. Clicking on this tab will
generate a list of cases and publications in which s 98 of the
Privacy Act 1988 is cited. Some of
these cases involve applications to the Federal Court for injunctions under s 98 (although not
all do, some cases are included because an injunction under s 98 was not sought).
1
Office of the Australian Information Commissioner,
Guidelines issued by the Australian Information Commissioner under
s 93A of the Freedom of Information Act 1982 [3.81].
www.oaic.gov.au |
2
Yours sincerely
Raewyn Harlock
Assistant Director
Dispute Resolution Branch
30 June 2017
www.oaic.gov.au |
3
If you disagree with my decision
Internal review
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
internal review.
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
reviewed.
Further Review
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 xxx@xxxx.xxx.xx, or by fax on
02 9284 9666.
www.oaic.gov.au |
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