FOI
Statement of reasons made under the Freedom of Information Act 1982
Decision and reason for decision of Position Number 01002306
Applicant:
Verity Pane
Decision date:
18 May 2018
FOI reference number:
FOI 22031
Dear Verity Pane
Freedom of Information Request: FOI 22031
1.
I have made a decision to refuse access to the documents subject to your request, as the documents
do not exist.
Summary
2.
I, Position Number 01002306, am an officer authorised by the Secretary of the Department of
Veterans’ Affairs (the Department) to make decisions about access to documents in the possession of
the Department in accordance with section 23(1) of the
Freedom of Information Act 1982 (the FOI Act).
3.
On 18 April 2018 you made a request for access to documents in the possession of the Department.
Your request sought access to:
“Under s 17 of the FOI Act I seek a one page document to be complied [sic] from information held in
your HR information system and any other applicable data systems or holdings, detailing the APS
level and DVA office location of all current department FOI delegates (and separately,
reconsideration delegates, if there are any who have no original decision duties).
If a delegate also has duties other than FOI duties, can you also provide a estimated percentage
proportion of their time spent on FOI activities.
Details such as names re not required, just APS employment level, office location, and proportion of
FOI duties if employee performs other roles as well.”
Decision and Reasons for Decision
4.
I have made a decision to refuse access to the documents subject to your request, as the documents
do not exist. Section 24A of the FOI Act provides that 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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(b)
the agency or Minister is satisfied that th
e document: (i) is in
the agency's o
r Minister's possession but cannot be found; or
(ii) does not exist.
5.
I am satisfied that all reasonable steps have been taken to find information relevant to your request,
having regard to:
the subject matter of the documents;
the current and past file management systems and the practice of orderly destruction or
removal of documents;
the Department’s record management systems and practices; and
the individuals and areas within the Department who may be able to assist with the
location of the information.
6.
Despite the reasonable searches undertaken, the Department has been unable to identify any
documents relevant to your request.
Section 17 – requests involving use of computers
7.
While I am satisfied that the Department does not have possession of a document containing the
information you have requested, the Department is obliged under subsection 17(1) of the FOI Act to
consider producing a document by use of a computer.
8.
The obligation to produce a document arises under section 17 of the FOI Act if:
a.
the Department could produce a written document containing the information by using a
‘computer or other equipment that is ordinarily available’ to the Department for retrieving or
collating stored information (section 17(1)(c)(i)), and
b.
producing a written document would not substantially and unreasonably divert the resources
of the Department from its other operations (section 17(2)).
9.
Paragraph 3.204 of the Guidelines issued by the Office of the Australian Information Commissioner
notes that if both of these conditions are met, the FOI Act applies as if the applicant had requested
access to the written document and it was already in the agency’s possession.
10.
I am satisfied that the Department cannot produce a written document containing the requested
information by using a computer that is ordinarily available to the agency for retrieving or collating
stored information. The Department does not have software that would automatically create a
document containing the information you have requested. In order to create such a document, the
Department would need to manually gather and collate the information.
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11.
On that basis, I am refusing your request for access to the information in accordance with section 24A
of the FOI Act.
Your rights of review
12.
If you are dissatisfied with my decision, you may apply for internal review or Information Commissioner
review of the decision. We encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.
Internal Review
13.
Under section 54 of the FOI Act, you may apply in writing to the Department for an internal review of
my decision. The internal review application must be made within 30 days of the date of this letter.
Where possible please attach reasons why you believe review of the decision is necessary. The internal
review will be carried out by another officer within 30 days.
14.
You can make your application for internal review in one of the following ways:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Information Commissioner Review
15.
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review
my decision. An application for review by the Information Commissioner must be made in writing
within 60 days of the date of this letter, and be lodged in one of the following ways:
Online: www.oaic.gov.au Post: Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile: (02) 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
In person: Level 3, 175 Pitt Street, Sydney NSW.
16.
More information about your review rights under the FOI Act is available in Fact Sheet 12 published by
the Office of the Australian Information Commissioner:
http://oaic.gov.au/freedom-of-
information/foi-resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-
rights
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Contact us
17.
If you wish to discuss this decision, please do not hesitate to contact me using the following details:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely
Position No 01002306
Position Number 01002306
Authorised officer
18 May 2018
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FOI
Schedule 1
Schedule of relevant provisions in the FOI Act
3 Objects—general
(1) The objects of this Act are to give the Australian community access to information held by the
Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by
contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting
better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by
the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed
and exercised, as far as possible, to facilitate and promote public access to information,
promptly and at the lowest reasonable cost.
11 Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance
with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has
been paid.
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(2) This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with this
Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at
a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a
request (see section 3A (objects—information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.
Note 1:
Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:
A conditionally exempt document is an exempt document if access to the document would, on balance,
be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:
Section 11B deals with when it is contrary to the public interest to give a person access to the
document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document
at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of
exempt document in
subsection 4(1).
17 Requests involving use of computers etc.
(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.
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(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.
23 Decisions to be made by authorised persons
(1) Subject to subsection (2), a decision in respect of a request made to an agency may be made,
on behalf of the agency, by the responsible Minister or the principal officer of the agency or,
subject to the regulations, by an officer of the agency acting within the scope of authority
exercisable by him or her in accordance with arrangements approved by the responsible
Minister or the principal officer of the agency.
(2) A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body
by the principal officer of that court, tribunal, authority or body or, subject to the regulations,
by an officer of that court, tribunal, authority or body acting within the scope of authority
exercisable by him or her in accordance with arrangements approved by the principal officer of
that court, tribunal, authority or body.
(see section 11A).
24A Requests may be refused if documents cannot be found, do not exist or have not been
received
Document lost or non-existent
(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 o
r Minister is satisfied that th
e document:
(i) is in
the agency's o
r Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An
agency may refuse
a request for access to a
document if:
(a) in order to comply wi
th section 6C, th
e agency has taken contractual measures to
ensure that it receives th
e document; and
(b) the
agency has not received
the document; and
(c) th
e agency has taken all reasonable steps to receive
the document in accordance
with those contractual measures.
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