If not delivered return to PO Box 7820 Canberra BC ACT 2610
31 January 2019
Our reference: LEX 41703
Posty
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Posty
Decision on your Freedom of Information Request
I refer to your request, dated 1 January 2019 and received by the Department of Human
Services (
department) on the same day, for access to documents under the
Freedom of
Information Act 1982 (
FOI Act) made in the following terms:
I request the total of the number of times any member of the public has asked for
access to each non-website published successful documents on the FOI disclosure
log other than the original successful applicant.
My decision
I have decided to
refuse access to your request for documents under section 24A of the FOI
Act on the basis that all reasonable steps have been taken to locate the document you have
requested and I am satisfied that it does not exist.
Furthermore, I am satisfied that the document cannot be produced under section 17 of the
FOI Act, by using a computer system ordinarily available to the department.
Please see
Attachment A for the reasons behind my decision.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the department, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
reviews of decisions. See
Attachment B for more information about how to arrange a
review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Molly
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
PAGE 1 OF 6
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
REASONS FOR DECISION
What you requested
I request the total of the number of times any member of the public has asked for
access to each non-website published successful documents on the FOI disclosure
log other than the original successful applicant.
What I took into account
In reaching my decision I took into account:
• your request dated 1 January 2019;
• consultations with departmental officers about:
o the nature of the requested document;
o the department's operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
Guidelines); and
• the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
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.
I consulted with the team responsible for FOI statistical reporting (
Team) within the
Employment Law & FOI Branch (
Branch) regarding the document described in your request.
The Team conducted searches of all Branch drives and mailboxes. The Team did not identify
any documents matching the description in your request.
The Team advised me that the document you have requested is not in existence. This is
because the department does not record the data outlined in your request in a discrete
format. Whilst the Branch records data relating to the total number of disclosure log requests
received by the department, this data is not connected to each specific disclosure log
document. As such no report exists which specifies the total number of times any member of
the public have asked for a access to each disclosure log document listed on the
department’s website (which is not available for direct download).
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As such, the department does not hold any documents which provide the total number of
times any member of the public has asked for access to documents listed on the disclosure
log.
On the basis of these investigations and in accordance with section 24A of the FOI Act I am
satisfied that:
1. all reasonable steps have been taken to find the document you requested; and
2. the document does not exist.
Section 17 of the FOI Act
Section 17 of the FOI Act provides that:
(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.
(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.
Paragraph 3.207 of the Guidelines, citing the Full Federal Court’s decision in
Collection Point
Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 (
Collection Point) 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.
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Department of Human Services
Does section 17 of the FOI Act apply?
In processing your revised request, the department considered whether, pursuant to section
17 of the FOI Act, a written document could be produced which would satisfy your request in
a discrete form, by the use of a computer or other equipment that is ordinarily available to the
department for retrieving or collating stored information.
I consulted with the Team, which confirmed that, in this instance, the department cannot
produce discrete written documents which satisfy your request.
A new record is created on the Team’s database for each disclosure log request received by
the department. As a single request may seek documents in relation to more than one
disclosure log matter, the Team would be required to manually review each record and tally
the total number of requests for each disclosure log document.
As cited by in paragraph 3.207 of the Guidelines referred to above, the Full Court of the
Federal Court in
Collection Point explains, at [44] that:
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. (Emphasis added).
As the department would be required to manually tally review individual records to tally the
number of requests made for each disclosure log document, I am satisfied that section 17 of
the FOI Act does not apply to your request. This is because the department cannot produce
a written document in discrete form by the use of a computer that is capable of functioning
independently to collate the information you requested.
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Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a freedom of information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an FOI decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (the
department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
• made in writing
• made within 30 days of receiving this letter
• sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 5 OF 6
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
• If you are applying online, the application form the 'Merits Review Form' is available
at
www.oaic.gov.au.
• If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request
• Include your contact details
• Set out your reasons for objecting to the department's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act,
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 6 OF 6
Department of Human Services
Document Outline
