FOI 24825 Decision and Statement of Reasons.pdf

FOI

Internal review decision made under the Freedom of Information Act 1982
Internal review decision and reasons for decision of Position Number 62209913,
Information Law Section, Legal Services and General Counsel Branch, Department of
Veterans’ Affairs

Applicant:

Verity Pane

Date of primary decision:

2 October 2018

FOI reference number:

FOI 24298

Internal review decision date:
1 November 2018

Internal review reference number:
IR 24825

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Verity Pane,

Freedom of Information Request: FOI 24825
1.
The purpose of this letter is to give you a decision about your request for internal review under the
Freedom of Information Act 1982 (FOI Act).

2.
I have made a decision to affirm the original decision made by Position Number 62210358, Legal
Officer, Information Law Section, Legal Services and General Counsel Branch, to refuse your request
in accordance with section 24A of the FOI Act on the basis that the documents you seek access to
either cannot be found or do not exist.

Authority to make this decision

3.
I, Position Number 62209913, Acting Director, Information Law Section, am an officer authorised by
the Secretary of the Department of Veterans’ Affairs (the Department) to review decisions about
access to documents in the possession of the Department in accordance with section 54C of the
Freedom of Information Act 1982 (the FOI Act).

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Summary

4.
On 31 August 2018, you made a request for access to documents in the possession of the
Department. Your request sought access to:

“…Under FOI, I seek a copy for any document (including emails) received or sent by any SES
level officer in the period 1 January 2018 – 30 April 2018 that relates to the replacement of
delegate names in official correspondence with position number instead.

It is likely that such a document was sent to the Secretary for approval and also involved a
Department brief for the Minister, but I provide this merely as pointers to where such
documents in scope may be found.

TRIM and the G: drive of the Legal Services & Assurance branch should also be searched for
such documents, in addition to the Department’s email server (but again may be limited to SES
level officers only)…”

5.
On 2 October 2018, you were provided with a decision relating to access to documents within scope
of your request. Access was refused in accordance with section 24A of the FOI Act as the documents
you sought access to either could not be found or did not exist.

6.
On the same day you requested an internal review of the primary decision. In your request, you
specifically noted:

“…I seek internal review on the grounds that the search was inadequate, and clearly did exclude
relevant documents...”

7.
I have decided not to impose a charge in relation to this request, in accordance with regulation 3(1)
of the Freedom of Information (Charges) Regulations 1982.

Decision

8.
I have made a decision to affirm the original decision made by Position Number 62210358, Legal
Officer, Information Law Section, Legal Services and General Counsel Branch, to refuse your request
in accordance with section 24A of the FOI Act on the basis that the documents you seek access to
either cannot be found or do not exist.

Material taken into account

9.
In accordance with Section 26(1)(a) of the FOI Act, the findings on any material question of fact,
referring to the material on which those finding were based and the reasons for my decision to
refuse access to documents follow.

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10.
I have taken the following material into account in making my decision:

  the terms of your primary request;

  the terms of your request for an internal review;

  the types of documents that are in the possession of the Department;

  Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provision of the FOI Act relevant to my
decision:

-  Section 24A  Requests may be refused if documents cannot be found, do not exist or have
not been received ; and

  the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (FOI Guidelines).

11.
A full extract of all FOI Act provisions used to make my decision are provided in Schedule 1.

Reasons for Decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

12.
Section 24A(1) 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

(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.

13.
I am satisfied that all reasonable steps have been taken to find information relevant to your request,
having regard to:

  the terms of your request;

  the subject matter of the documents;

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  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 you seek access to.

2.
Despite the reasonable searches undertaken, the Department has been unable to identify documents
that fall within the scope of your request. A description of the searches undertaken to locate the
documents which you are seeking to access is at Schedule 2.

3.
For these reasons, I am refusing your request for access to documents as described in your request in
accordance with section 24A of the FOI Act.

Your rights of review

14.
Under section 54L of the FOI Act, if you are dissatisfied with my decision, 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.

15.
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

Contacts

16.
If you wish to discuss this decision, please do not hesitate to contact the Information Law Section
using the following details:

Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx

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Yours Sincerely,

Position Number 62209913
Director
Information Law Section | Legal Services & General Counsel Branch
Legal Assurance and Governance Division

1 November 2018
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FOI
Schedule 2

Schedule of relevant provisions in the FOI Act

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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.

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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.

(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).
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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).

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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.

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 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.
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 with section 6C, the agency has taken contractual measures to
ensure that it receives the document; and
(b)
the agency has not received the document; and
(c)
the agency has taken all reasonable steps to receive the document in accordance
with those contractual measures.
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FOI
Schedule 2

Summary of document searches

The Department conducted the following searches to identify files and documents that fall within scope of
your request (“relevant documents”).

1.  Search of group drives for electronic documents

A search of the Department’s electronic files did not identify any relevant documents.

2.  Department notification of FOI request

An email notification of the FOI request was circulated to relevant areas in the Department
requesting that they conduct a search of their respective areas to identify whether documents
relevant to the request exist. No relevant documents within the timeframe specified in your
request were identified.

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