14 February 2019
Our reference: 2019/472
Mr Arthur Jordan
By email: foi+request‐5112‐[email address]
Dear Mr Jordan
Freedom of Information Request – Notice of Decision
I refer to your email of 15 January 2019, requesting an internal review of Comcare’s decision dated
15 January 2019 (the primary decision) made under the Freedom of Information Act
(1982) (FOI Act)
for access to:
I seek any documents, notes or computer lists showing the number of clients who have been
issued top‐up hearing aids (not on the Free to Client list) and where the cost has been fully
subsidized for hearing loss and/or tinnitus claims by Public Servants and/or Defence
Contractors (if applicable) for the Financial Year ending 30 Jun 18.
I do not require any personal information which may be redacted, just a list of the number of
people issued top‐up hearing aids which are not on the Free to Client list but have had the
cost fully subsidized by Comcare.
You have written:
I do not consider that Comcare has made a thorough attempt to supply the information
sought. The information sought should be very easy to find. If you were required to supply
this information by a Senator before Senate Estimates, you would take the request on notice
and supply the information within 28 days. Comcare also has a list of all hearing aids on the
Free to Client (FTC) list. This list had been previously supplied to me via Comcare. I can
provide a copy if required. A quick search via your IT systems would indicate if all hearing
aids supplied are, or are not, on this list. I have been given estimates by staff members at
Comcare so this information appears to be well known and/or easily found and retrieved.
It therefore appears that Comcare is easily able to comply with Section 17 and could
produce a written document containing the information by using a computer or other
equipment that is ordinarily available’ to the agency for retrieving or collating stored
I would suggest that the following steps would easily produce the requested information:
1. Search for names of hearing aids issued during the relevant period.
2. Compare that list against the FTC list in the possession of Comcare.
3. Any hearing aids that appear on the FTC list can be ignored, leaving a very small number
of the top‐up hearing aids issued to Claimants.
4. This would produce the list sought by me showing the "Number of people issued top‐up
hearing aids not on the Free to Client (FTC) for the FY 2017‐2018."
If you follow these easy steps, it will not cause any inconvenience to Comcare and will
enable me to obtain the information sought. Please advise if you require me to provide you
a copy of the FTC list previously provided to me by your Agency.
Summary of Decision
I have decided to affirm the primary decision to refuse access under section 24A of the FOI Act on
the basis that all reasonable steps have been taken to locate the documents you have requested and
I am satisfied that they cannot be located or do not exist.
I have also decided that Comcare cannot produce a document under section 17 of the FOI Act to
satisify your request.
Please see Attachment A for the reasons behind my decision.
If you disagree with any part of the decision you can ask for a review. You can ask for an external
review by the Office of the Australian Information Commissioner. See Attachment B for more
information about how arrange a review.
If you have any questions please email [Comcare request email] or phone me on the number below.
REASONS FOR DECISION
The reasons for my decision are discussed below.
In reaching my decision I have considered:
your original request dated 19 November 2018
your internal review request of 15 January 2019
the documents that fall within the scope of your request
consultations with Comcare officers about:
o the nature of the documents
o Comcare’s operating environment and functions
guidelines issued by the Australian Information Commissioner under section 93A of the FOI
Act (the Guidelines
the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 54C of the FOI Act. I did not make the original
decision in relation to your request. I have reviewed the original decision and made a fresh decision
on your request.
Your request for internal review indicated that you consider that a quick search via IT systems would
indicate if all hearing aids supplied are, or are not, on this list. You state that this information
appears to be well known and easily found/retrieved. You have provided step‐by‐step instructions
on how your request could be finalised.
Section 24A of the FOI Act
Section 24A of the FOI Act provides that:
(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.
The Claims Management Team (Team) conducted searches of their electronic records, including
shared drives and emails. The Team did not identify any documents matching the description in your
request. I undertook further consultations with the Branch and was informed that there are no
documents that fall within the scope of this part of your request.
The Claims Management team advised that free to client services are encouraged and some
employees choose this option. Those that still request other models of hearing aids may have these
reimbursed based on quotations provided by the employee on a case by case basis. In some cases,
Comcare will pay for other models. However, this data is unable to be captured from our system.
On the basis of these searches, I am satisfied that in accordance with section 24A of the FOI Act:
1. all reasonable steps have been taken to find the documents; and
2. the documents do not exist.
Section 17 of the FOI Act
Section 17 of the FOI Act relevantly provides that:
(a) a request … is made in accordance with the requirements of subsection 15(2) to an agency;
(c) the agency could produce a written document containing the information in discrete form
(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 requested 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.
Paragraph 3.185 of the Guidelines provides:
‘…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 collate or retrieve
stored information and to produce the requested document.’
The Technology Team has clarified that the data you have requested is not held in a way that would
allow it to be collated into a document and presented at the level of detail that you seek. The
Technology Team attempted to retrieve information based on payments made in relation to hearing
aids. However, the Technology Team were unable to create a document that indicated whether a
purchased hearing aid was on the Free to Client list.
I have been advised that to carry out your request, staff would need to manually review each
electronic case individually. This involves a number of steps including:
1. Review each claim number listed on the spreadsheet of hearing aid payments made. The
spreadsheet does not have the make or model of the hearing aid, only who the provider
was, for example Australian Hearing Services or Audio Clinic.
2. The electronic claim file would need to be opened to find the original copy of the invoice and
then someone would need to check the make and model of the hearing aid purchased.
3. These details would need to be manually extracted and then compared to the list of top‐up
hearing aids to see if that model was on the top‐up list.
The decision of the Federal Court in Collection Point Ptd Ltd v Commissioner of Taxation
720 [Collection Point] (affirmed by the Full Court of the Federal Court in Collection Point Pty Ltd v
Commissioner of Taxation
 FCAFC 67) makes clear that where manual input is required to
produce a written document, then a computer is not being used in a manner that is ‘ordinarily
available’ to the agency because of the extraordinary step that is required to be taken. In
considering the obligations of the Australian Taxation Office (ATO), the Court held [at 44]:
Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to produce a
document unless the effective and comprehensive means of doing so are ordinarily available
to it for the specified purpose. In that context, the computer or other equipment ordinarily
available for the specified purpose must be capable of functioning independently to collate
or retrieve stored information and to produce the requested document.
In applying the reasoning in Collection Point I am therefore satisfied that Comcare cannot produce a
document containing data relevant to your request, as to do so Comcare would be required to
manually search, collate and compare data that is individually stored in individual files. There is no
functioning computer that can operate indpendently to produce a document to satisfy your request.
Based on the above, I am satisfied that section 17 of the FOI Act does not apply to your request, as
Comcare cannot use an ordinarily available computer system to produce a written document
containing the information you have requested.
I have decided to affirm the original decision to refuse your request under section 24A of the FOI Act
as no document matching the terms of your request exists and I am satisfied that section 17 of the
FOI Act does not apply to your request.
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The Freedom of Information Act 1982
(FOI Act) gives you the right to apply for a review of this
decision. Under section 54L of the FOI Act, you can apply for a review of this decision by:
an internal review officer within Comcare; or
the Information Commissioner.
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can lodge your
application in one of the following ways:
GPO Box 5218, Sydney NSW 2001
Email: [email address]
If a person has sought an internal review and no result of that review is provided within 30 days,
then the applicant may apply to the Information Commissioner to review the matter.
An application form is available on the website at www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are objecting to (if one was provided), and your contact
details. You should also set out why you are objecting to the decision. Complaints to the Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by Comcare in relation to your request. The Ombudsman will
consult with the Australian Information Commissioner before investigating a complaint about the
handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
1300 362 072 (local call charge)
Your enquiries to the Australian Information Commissioner can be directed to:
1300 363 992 (local call charge)
No particular form is required to make a complaint to the Ombudsman or the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify
Comcare as the relevant agency.