Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
5 August 2019
Fax: +61 1300 729 000
www.asic.gov.au
Phillip Sweeney
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
Freedom of Information Request No. FOI 152-2019
I refer to your request dated 30 July 2019 under the
Freedom of Information Act 1982 (
FOI
Act) in which you seek access to documents in the possession of the Australian Securities and
Investments Commission (
ASIC).
Your request seeks access to the following:
‘The documents I seek are copies of any emails or copies of file notes of phone
conversations with reporter James Frost of the Australian Financial Review in relation
to proceedings in the Federal Court of Australia (NSW) before Justice Yates
{NSD1654/2018) and/or the Interested Person, Phillip Charles Sweeney.
The search period is from 2 May 2019 to the present.’
I am the authorised decision-maker for the purposes of section 23 of the Act and this letter
gives notice of my decision.
Decision
The relevant ASIC teams have undertaken searches for documents that fall within the scope
of your request and have not found any responsive documents. My decision is to therefore
refuse your request for access to documents under s 24A of the FOI Act on the basis that all
reasonable steps have been taken to find these documents and I am satisfied that no such
documents exist. The reasons for my decision are set out below.
Information considered
In reaching my decision, I have considered the following:
• the FOI Act, in particular s 24A;
• the responses from the relevant ASIC teams;
• the Australian Information Commissioner’s FOI Guidelines issued under
s 93A of the FOI Act (
FOI Guidelines); and
• the terms of your request.
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Section 24A of the FOI Act
Section 24A of the FOI Act relevantly provides:
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.
I have requested that the Media Unit, Financial Services Enforcement team and the Chief Legal
Office conduct searches of ASIC’s records for documents within the scope of your request.
They have advised that they have not located any documents falling within scope. My decision
is to therefore refuse your request for access to documents under s 24A of the FOI Act on the
basis that all reasonable steps have been taken to find these documents and I am satisfied
that no such documents exist. The reasons for my decision are set out below.
For these reasons, I am satisfied that all reasonable steps have been taken to locate the
documents relevant to your request and I am satisfied that the documents do not exist. I have
therefore decided to refuse your request pursuant to s 24A(1)(b)(ii) of the FOI Act.
Review rights
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this decision,
apply in writing to ASIC for an internal review of my decision under section 54B of the FOI
Act. This review is an independent process conducted by a Senior Freedom of Information
Officer at ASIC. This request should be addressed to me or to the Senior Manager, Freedom
of Information, GPO Box 9827, Brisbane QLD 4001 or by email to
xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified of this decision, apply
in writing to the Office of the Australian Information Commissioner (OAIC) for a review of
my decision under section 54N of the FOI Act. You may contact the OAIC by post at GPO
Box 5218 Sydney NSW 2001, by email
at xxxxxxxxx@xxxx.xxx.xx or by telephone on 1300
363 992.
Right to complain
3. You may lodge a complaint with the OAIC in relation to the conduct of ASIC in the handling
of this request. You may contact the OAIC as set out above.
If you have any questions or wish to discuss, please contact me o
n xxxxxxx.xxxxx@xxxx.xxx.xx
or (03) 9280 4156.
Yours sincerely
Jessica Zhang
Freedom of Information Officer
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(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
