Our reference: FOIREQ19/00041
O Wendell
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information request – FOIREQ19/00041
Dear O Wendell
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (Cth) (the FOI Act) and received by the Office of the Australian Information
Commissioner (OAIC) on 15 February 2019.
You requested access to:
Under the FOI Act, and noting the OAIC's role in providing best practice Privacy Act
compliance for all Cth agencies, I seek a copy of the OAIC’s contract with Hotjar.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have decided to refuse your request for documents under s 24A of the FOI Act on the basis
that all reasonable steps have been taken to find the documents you requested, but no such
documents are held by the OAIC. This is because the OAIC uses Hotjar pursuant to a
subscription service, which operates according to terms of services found on Hotjar’s
webpage.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
your freedom of information request of 15 February 2019
the FOI Act, in particular s 24A
the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act (the FOI Guidelines), specifically [3.85]-[3.91]
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
searches conducted by relevant OAIC staff
Documents cannot be found or do not exist – s 24A
I have refused your request under s 24A(1) of the FOI Act on the basis that all reasonable
steps have been taken to find the documents you requested and no such documents held by
the OAIC exist.
Section 24A(1) provides as follows:
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.
Searches undertaken
The FOI Guidelines state at [3.89]:
Agencies and ministers should undertake a reasonable search on a flexible and common sense
interpretation of the terms of the request. What constitutes a reasonable search will depend on
the circumstances of each request and will be influenced by the normal business practices in
the agency’s operating environment or the minister’s office.
At a minimum, an agency or minister should take comprehensive steps to locate documents,
having regard to:
the subject matter of the documents
the current and past file management systems and the practice of destruction or removal of
documents
the record management systems in place
the individuals within an agency or minister’s office who may be able to assist with the
location of documents, and
the age of the documents.
To find the document you requested, the Director Corporate Services and the Director
Strategic Communications and Coordination conducted searches of the OAIC’s file
management system. No documents within the scope of your request were found.
As already noted, the OAIC utilises Hotjar on a subscription basis. The Terms of Service for
users of Hotjar constitutes Hotjar’s mutual agreement with all of its users. The OAIC does
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not hold a record of any agreement with Hotjar, including the Terms of Service which can be
found on Hotjar’s website
at https://www.hotjar.com/legal/policies/terms-of-service.
Conclusion
I am satisfied that all reasonable steps have been taken to find the documents you requested
and that the OAIC does not hold documents that fall within the scope of your request. As I
have already advised, Hotjar’s Terms of Service, can be found on its website under ‘Policies’.
As a result, I have decided to refuse your request under s 24A of the FOI Act on the basis that
no documents held by the OAIC exist.
Your review rights are outlined on the following page.
Yours sincerely,
Megan McKenna
FOI Officer
Legal Services
18 March 2019
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review will be conducted, to the extent possible, by an officer of the OAIC who
was not involved in or consulted in the making of my decision. If you wish to apply for an
internal review, you must do so in writing within 30 days. There is no application fee for
internal review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
reviewed.
Further Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If
you wish to apply for IC review, you must do so in writing within 60 days. Your application
must provide an address (which can be an email address or fax number) that we can send
notices to, and include a copy of this letter. A request for IC review can be made in relation to
my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable that
my decision be considered by the AAT, the Information Commissioner may decide not to
undertake an IC review.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email
to xxx@xxxx.xxx.xx, or by fax on
02 9284 9666.
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Accessing your information
If you would like access to the information that we hold about you, please
contac
t xxxxx@xxxx.xxx.xx. More information is available on th
e Access our
information page on our website.
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