FOI
Statement of reasons issued under the Freedom of Information Act 1982
Decision and reason for decision of Jo (Position Number 62210326), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Mr Alan Ashmore
Decision date:
14 October 2019
FOI reference number:
FOI 30922
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Ashmore,
Freedom of Information Request: FOI 30922
Decision
1.
The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and, in accordance with section 17 of the
Freedom of Information Act 1982 (Cth)
(
FOI Act), I have made a decision to create and grant access to two (2) documents and to
defer access to one (1) document that meets the scope of your request.
2.
The documents that I have chosen to grant access to are set out in
Schedule 1.
Authority to make decision
3.
I, Jo (Position Number 62210326), Assistant Director, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department, in accordance with section 23(1) of the
FOI Act.
Summary
4.
On 15 September 2019, you made a request for access to documents in the possession of
the Department. Your request sought access to:
1
The information I am seeking is:
The percentage of high impact errors for the period 1 April 2019 to 30 June 2019
for the following:
MRCA Initial Liability Claims,
DRCA Initial Liability Claims,
MRCA Permanent Impairment,
DRCA Permanent Impairment, and
The average number of work elements per case for each of the above.
5.
As no extensions of time have been applied to process your request, a decision on your
request is due by 15 October 2019.
6.
I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the
Freedom of Information (Charges) Regulations 2019.
Material taken into account
7.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant full access to two (2) documents and to defer access to one (1) document follows.
8.
I have taken the following material into account in making my decision:
the terms of your request
the types of information and documents that are in the Department’s possession
the content of the documents that fall within the scope of your request
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth.
Section 17 of the FOI Act which provides that an agency may produce a written
document of information that is stored electronically and not in a discrete written
form.
2
Section 21 of the FOI Act which provides that an agency may defer access to a
document in certain circumstances
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).
9.
A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Deferment of access (section 21)
10.
Document 2 is an extract from the Department’s Annual Report, which is not yet publicly
available.
11.
Section 46 of the
Public Governance, Performance and Accountability Act 2013 (
PGPA Act)
provides that Commonwealth entities must prepare and provide an Annual Report to the
entity’s responsible Minister for presentation to the Parliament.
12.
In addition, section 17ABA of the
Public Governance, Performance and Accountability Rule
2014 (
PGPA Rule) requires that as soon as practicable after the annual report for an entity
has been presented to Parliament, the Annual Report must be published online.
13.
Under section 21(1)(c) of the FOI Act, an agency is able to defer the provision of access to a
document:
(a) if the publication of the document concerned is required by law – until the
expiration of the period within which the document is required to be published; or
(b) if the document concerned has been prepared for presentation to Parliament or for
the purpose of being made available to a particular person or body with the
intention that it should be so made available – until the expiration of a reasonable
period after its preparation for it to be so presented or made available; or
(c) if the premature release of the document concerned would be contrary to the
public interest – until the occurrence of any event after which or the expiration of
any period of time beyond which the release of the document would not be
contrary to the public interest.
14.
In this instance, the Department’s Annual Report has been prepared for the Minister for
Veterans and Defence Personnel, the Hon Darren Chester MP, to table in Parliament.
3
15.
The Department’s Annual Report will be tabled in Parliament in mid-October 2019.
Following this, the Department will then publish the Annual Report on its website in
accordance with the requirement in section 17ABA of the PGPA Rule.
16.
Accordingly, until both of these events have occurred, under section 21(1) of the FOI Act, the
Department is able to defer access of the Annual Report. I also consider it would be contrary
to the public interest to release information in the Annual Report to you before it is tabled in
Parliament or published on the Department’s website given that these processes are
required by law to occur.
17.
Accordingly, I find that access to Document 2 should be deferred until it has been tabled in
Parliament and published on the Department’s website.
18.
Once the deferred access period has expired, Document 2 will be release to you in full.
Access to documents
19.
Documents 1 and 3, which are being released to you in accordance with the FOI Act, are
enclosed.
20.
Document 2 will be released to you following the deferred access period.
Information Publication Scheme
21.
The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
22.
I am of the view that details of your request should be made available on the Department’s
disclosure log. As such details of your request will be published by the Department on its
disclosure log, which can be accessed at
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log . Please note that the Department does not publish details of
FOI applicants, it is only details of the FOI request and the documents released in response
to the request.
Your rights of review
23.
If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a more rapid
resolution of your concerns.
4
Internal review
24.
Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.
25.
You can make your application for Internal Review in one of the following ways:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
OAIC review
26.
Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the following ways:
Online:
www.oaic.gov.au
Post:
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
In person:
Level 3, 175 Pitt Street, Sydney NSW 2000
27.
More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
http://oaic.gov.au/freedom-of-information/foi-resources/freedom-
of-information-fact-sheets/foi-factsheet-12-your-review-rights
5
Contact us
28.
If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the details above.
Yours sincerely,
Jo (Position Number 62210326)
Assistant Director
Information Law Section
Legal Services and Audit Branch
21 October 2019
6
FOI
Schedule 1
Schedule of documents
Applicant:
Mr Alan Ashmore
Decision date:
21 October 2019
FOI reference number:
FOI 30922
Document Date of
Document description
Page Decision Exemption
reference document
number
provision
1
N/A
Data regarding average number of work element*
1
Release
N/A
in full
2
N/A
Extract from Annual Report*
5
Deferred
s 21
access
3
N/A
Quarter 4 data
1
Release
N/A
in full
*Document created under section 17 of the FOI Act.
7
FOI
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
8
Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditionally exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
11B
Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include whether access to
the document would do any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and
3A);
(b)
Inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(b)
access to the document could result in any person misinterpreting or
misunderstanding the document;
(c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;
(d)
access to the document could result in confusion or unnecessary debate.
Guidelines
9
(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
17
Requests involving use of computers etc
(1)
Where:
(a)
a request (including
a request in relation to which
a practical refusal reason exists)
is made in accordance with the requirements o
f subsection 15(2) to
an agency;
(b)
It appears from the
request that the desire of th
e applicant is for information that
is not available in discrete form in writt
en documents of the
agency; and
(ba)
it does not appear from th
e request that th
e 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 writt
en 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 th
e 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 th
e agency from its other operations.
10
21 Deferment of access
(1) An agency which, or a Minister who, receives a request may defer the provision of access to the
document concerned:
(a) if the publication of the document concerned is required by law—until the expiration
of the period within which the document is required to be published; or
(b) if the document concerned has been prepared for presentation to Parliament or for the
purpose of being made available to a particular person or body or with the intention
that it should be so made available—until the expiration of a reasonable period after its
preparation for it to be so presented or made available; or
(c) if the premature release of the document concerned would be contrary to the public
interest—until the occurrence of any event after which or the expiration of any period
of time beyond which the release of the document would not be contrary to the public
interest; or
(d) if a Minister considers that the document concerned is of such general public interest
that the Parliament should be informed of the contents of the document before the
document is otherwise made public—until the expiration of 5 sitting days of either
House of the Parliament.
(2) Where the provision of access to a document is deferred in accordance with subsection (1), the
agency or Minister shall, in informing the applicant of the reasons for the decision, indicate, as
far as practicable, the period for which the deferment will operate.
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
11
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
12
