FOI 20 11 Notice of Decision.pdf

FOI 20-11
4 October 2019

Phillip Sweeney
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Sweeney,
NOTICE  OF  DECISION  MADE  UNDER  SECTION  23  OF  THE  FREEDOM  OF
INFORMATION ACT 1982 (CTH) (FOI ACT) WITH REASONS UNDER SECTION 26

Applicant:

Phillip Sweeney
Decision-maker:
Evelyn Ong, an authorised officer of the Australian Prudential
Regulation Authority (APRA) for the purposes of subsection
23(1) of the FOI Act.
FOI Request:
“The documents I seek are:

(i)
a  copy  of  the  letter  provided  to  APRA  by  Nicholas
Brookes,  the  then  CEO  of  Corporate  Combined
Superannuation  (CCSL  Ltd)  {RSE  Licence  L0000758},
the  then  purported  corporate  trustee  of  this  regulated
superannuation fund (R 1004830); and

(ii)
copies of all the documents which were attached to this
letter signed by Mr Brookes.”

Decision:
Refuse  access  to  documents  based  on the  reason given  in
this Notice of Decision.

MATERIAL FACTS
1.
On 9 August 2019, you made the FOI request by email under the FOI Act.
2.
On 9 August 2019, APRA acknowledged receipt of the FOI request by email.
3.
On 6 September 2019, APRA requested a 30 day extension by email.
4.
On 6 September 2019, you consented to the extension by email.

EVIDENCE AND MATERIAL
5.
I relied on the following evidence and material in making my decision:
a.
the Applicant’s request received by APRA on 9 August 2019;
b.
acknowledgment email from APRA FOI to the Applicant dated 9 August 2019;
c.
correspondence between APRA staff between 26 August and 4 September 2019;
d.
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
e.
relevant sections of the FOI Act; and
f.
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).

REASONS
6.
APRA  has  conducted  all  reasonable  searches  of  its  records  in  order  to  identify  all
documents relevant to your FOI request (relevant documents).

7.
I have decided to refuse access to the relevant documents for the following reason:
Documents cannot be found, do not exist or have not been received.
8.
Based on the information before me, APRA has taken all reasonable steps to locate the
documents  relevant  to  the  request  and  I  am  satisfied  that  the  documents  cannot  be
found/do not exist. Accordingly, I refuse access under section 24A of the FOI Act.

RIGHTS OF REVIEW
Application for Internal Review of Decision
9.
Under section 54 of the FOI Act, you have the right to apply for an internal review of the
decision if you disagree with my decision. If you make an application for review, another
officer of APRA will be appointed to conduct the review and make a fresh decision on
the merits of the case.
10.  Under section 54B of the FOI Act, you must apply in writing for a review of the decision
within 30 days after the day the decision has been notified to you.
11.  You  do  not  have  to  pay  any  other  fees  or  processing  charges  for  an  internal  review,
except for providing access to further material in the document released as a result of
the review (for example, photocopying, inspection, etc).
12.  No  particular  form  is  required  to  apply  for  review,  although  it  is  desirable  (but  not
essential),  to  set  out  in  the  application,  the  grounds  on  which  you  consider  that  the
decision should be reviewed.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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13.  Application for an internal review of the decision should be addressed to:

FOI Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(02) 9210 3411
14.  If you make an application for internal review and we do not make a decision within 30
days  of receiving  the  application,  the  agency  is deemed to  have  affirmed  the  original
decision. However, under section 54D of the FOI Act, APRA may apply in writing to the
Information Commissioner for further time to consider the internal review.

Application for review by the Information Commissioner
15.  Under  section  54L  of  the  FOI  Act,  you  have  the  right  to  apply  to  the  Information
Commissioner for a review of the original decision or a review of a decision made on
review.
16.  Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the original decision or the decision made on internal
review.
17.  An  application  for  review  by  the  Information  Commissioner  may  be  lodged  in  the
following ways:
Online
Complete and lodge the online review form at:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/
Post
Director of FOI Dispute Resolution
GPO Box 5218, Sydney NSW 2001
Email
xxxxx@xxxx.xxx.xx
Facsimile
(02) 9284 9666
Delivered in person
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000

Application for review by Administrative Appeals Tribunal
18.  If the decision on review by the Information Commissioner is not to grant access to all
of  the  documents  within  your  request,  you  would  be  entitled  to  seek  review  of  that
decision by the AAT.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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19.  The AAT is an independent review body with the power to make a fresh decision. An
application to the AAT for a review of an FOI decision does not attract a fee. The AAT
cannot  award  costs  either  in  your  favour  or  against  you,  although  it  may  in  some
circumstances  recommend  payment  by  the  Attorney-General  of  some  or  all  of  your
costs. Further information is available from the AAT on 1300 366 700.

Complaints to the Information Commissioner
20.  You  may  complain  to  the  Information  Commissioner  concerning  action  taken  by  this
agency  in  the  exercise  of  powers  or the  performance  of functions  under the  FOI  Act.
There is no fee for making a complaint. The Commissioner will conduct an independent
investigation of your complaint.
21.  You may complain to the Information Commissioner either orally or in writing, by any of
the methods outlined above, or by telephone, on 1300 363 992.

Evelyn Ong
FOI Officer
Australian Prudential Regulation Authority
Date:  4 October 2019

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
4

FREEDOM OF INFORMATION ACT 1982
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.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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