Mr Richard Smith
Right to Know
(
via email: foi+request‐4016‐xxxxxxxx@xxxxxxxxxxx.xxx.xx)
18 October 2017
Dear Mr Smith
Freedom of Information Request FOI 17‐1718 ‐ Access Decision
I refer to your email of 21 August 2017 to the Department of Communications and the Arts (the
Department) requesting access to documents under section 15 of the
Freedom of Information
Act 1982 (Cth) (the
FOI Act).
I am an officer authorised by the Secretary under subsection 23(1) of the FOI Act to make
decisions about requests for access to documents under the FOI Act.
I have made a decision on your request, and provide you with notice in writing of my decision.
A.
BACKGROUND
1.
On 21 August 2017, you requested access under section 15 of the FOI Act to:
“…a) Documents detailing any correspondence received within the period between 1 Jan
2015 and 10 August 2017 from Foxtel Cable Television Pty Limited (including its owners,
agents and/or contractors) to the Department of Communications and the Arts
requesting the payment of moneys (either compensation or grants or funding) by the
Commonwealth to Foxtel Cable Television Pty Limited;
b) Documents detailing any correspondence received within the period between 1 Jan
2015 and 10 August 2017 from Austar Entertainment Pty Ltd (including its owners,
agents and/or contractors) to the Department requesting the payment of moneys
(either compensation or grants or funding) by the Commonwealth to Austar
Entertainment Pty Ltd;
c) Documents detailing any correspondence sent within the period between 1 Jan 2015
and 10 August 2017 from the Department to Foxtel Cable Television Pty Limited
(including its owners, agents and/or contractors) concerning the payment of moneys
(either compensation or grants or funding) by the Commonwealth to Foxtel Cable
Television Pty Limited;
2 Phillip Law Street, New Acton, Canberra ACT 2601 Australia telephone 02 6271 1000
website communications.gov.au arts.gov.au
d) Documents detailing any correspondence sent within the period between 1 Jan 2015
and 10 August 2017 from the Department to Austar Entertainment Pty Ltd (including its
owners, agents and/or contractors) concerning the payment of moneys (either
compensation or grants or funding) by the Commonwealth to Austar Entertainment Pty
Ltd; and
e) Documents relating to the Commonwealth Department of Communications and the
Arts's consideration and decision, including any directions to Department staff from the
Minister of Communications and the Arts, within the period between 1 Jan 2015 and 10
August 2017 to make a payment of moneys (either compensation or grants or funding)
to either Foxtel Cable Television Pty Limited or Austar Entertainment Pty Ltd, including
to the owners of the two respective companies.
For the avoidance of doubt, my request for Documents above also includes copies of any
correspondence described in each of my requests a) through e)…
my requests a) through d) are for lists of correspondence as described, this is a request
for a copy of each piece of correspondence, if any, identified in each of my requests a)
through d). …”
2.
On 1 September 2017, the Department acknowledged your request.
3.
On 20 September 2017, the Department notified you of the delegated decision‐maker’s
intention to refuse your request on the basis of practical refusal as your request, as originally
framed, did not satisfy the requirement in paragraph 15(2)(b) of the FOI Act. Paragraph 15(2)(b)
provides that in making a FOI request, the request must provide such information concerning the
document as is reasonably necessary to enable a responsible officer of the agency to identify it.
4.
The Department’s notice invited you to consult with the Department’s FOI Coordinator
to refine the scope of your request.
5.
On 20 September 2017, the Department also applied to the Office of the Australian
Information Commissioner (OAIC) for an extension of the processing period under section 15AC
of the FOI Act.
6.
On 21 September 2017, the Department was notified of the OAIC’s approval of an
extension of time under subsection 15AC(5) of the FOI Act to 20 October 2017.
7.
On 4 October 2017, the Department received an email from you indicating that you
wished to amend the scope of your request as follows:
“… a) For each of my requests a) through e) I would be amenable to removing the part
of the request that includes “including its owners, agents and/or contractors”. This
would allow the Department’s search of its correspondence to be limited to just the two
corporate bodies, i.e. Foxtel and Austar.
b) For my request e) I would be amendable to removing the part of the request that
includes “including to the owners of the two respective companies. …”
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8.
On 5 October, the Department received a further email from you which stated:
“… I confirm that neither my original nor amended request intended to include in its
scope any documents relating to the invoicing or payment of accounts by the
Department for any services provided to the Department where the Department is a
customer of either of the two pay TV companies.
My request for Government information was specifically directed at payment of grants
and/or funding intended to be used by either pay TV operator for their commercial
activities and for which there was no commercially based customer/supplier agreement
in place”.
9.
On 5 October 2017, the FOI Coordinator requested the Assistant Secretary Media Branch
to conduct searches for the requested documents.
10.
On 10 October 2017, on the advice of officers in the Media Branch, the FOI Coordinator
also requested the Executive Adviser to the Secretary to conduct searches for the requested
documents.
11.
On 12 October 2017, on the advice of the Executive Adviser, the FOI Coordinator also
requested the Chief Information Officer to conduct searches for the requested documents.
12.
On 12 October 2017, Assistant Secretary Media Branch advised the FOI Coordinator that
no documents within the scope of your request were found.
13.
On 16 October 2017, the acting Secretary advised the FOI Coordinator that 10 documents
containing 52 pages were potentially within the scope of your request. However, on examination
of the documents it was determined that these documents were not within the scope of your
request.
14.
On 17 October 2017, the Chief Information Officer advised the FOI Coordinator that:
“Given the criteria of 1 January 2015 – 10 August 2017, of the three former Secretaries within
scope, the Department has completed extensive searches of the e‐mail accounts of the two most
recent Secretaries (spanning 15 September 2015 – 10 August 2017) and has found no relevant e‐
mail correspondence in either. Based on the time constraints and the effort and expense that
would be required to retrieve archived data for the final search, considering that there has been
no other indication that this correspondence exists, I do not believe it would be practical to do
so”.
B.
DECISION
15.
I have decided to refuse your request for access under section 24A of the FOI Act.
C.
MATERIAL ON WHICH MY DECISION IS BASED
16.
I base my decision on the following material:
a.
your access request, dated 21 August 2017, and revised request, dated 4 October
2017;
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b.
the relevant provisions of the FOI Act;
c.
the
Australian Information Commissioner’s FOI Guidelines made under section 93A
of the FOI Act (the ‘FOI Guidelines’);
d.
relevant case law;
e.
the Department’s
FOI Policy;
f.
information and advice from the Department’s FOI Coordinator; and
g.
information and advice from the Chief Information Officer, the Executive and
officers within the Department’s Media Branch.
D.
FINDINGS ON MATERIAL QUESTIONS OF FACT
17.
I find that despite thorough searches and inquiries within the Department having been
undertaken to locate documents falling within the scope of your revised request, no documents
were found.
E.
REASONS FOR DECISION
18.
Section 24A of the FOI Act states that an agency may refuse a request for access to a
document if all 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.
19.
Based on the findings on material questions of fact set out above, all reasonable steps
have been taken to find the document. I am satisfied that either the document is in the
Department’s possession but cannot be found or the document does not exist.
F.
REVIEW RIGHTS
20.
This decision may be subject to review under section 54, section 54A, section 54L or
section 54M of the FOI Act. I have attached the Office of the Australian Information
Commissioner’s
FOI fact sheet 12: Your review rights.
Yours sincerely
Legal Director
Office of the General Counsel
Position Number 112404
Attachment 1
FOI fact sheet 12: Your review rights
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