FOI

Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Jo, 62210326, Information Law Section, Legal Services
and Audit Branch, Department of Veterans’ Affairs

Applicant:

The National Advocate

Decision date:

7 November 2019

FOI reference number:
FOI 31280

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear The National Advocate,
Freedom of Information Request: FOI 31280
Decision

1. The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has not been able to identify documents relevant to your request.

2. For this reason, I have made a decision to refuse your request under section 24A of the
Freedom of Information Act 1982 (FOI Act), as the documents are not in the possession of
the Department.

Authority to make this decision

1.
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.

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Summary

2.
On 2 October 2019, you made a request for access to documents in the possession of the
Department. Your request sought access to:

Can you please provide the Minister's diary covering all days in September in 'weekly
agenda' format.

3.
As no extensions of time have been applied to process your request, a decision on your
request was due by 1 November 2019.

4.
In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request.

5.
I would like to apologise for the delay in acknowledging receipt of your request and issuing
this decision to you and any inconvenience it may have caused.

Material taken into account

3.  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
refuse access to the documents fol ows.

4.  I have taken the following material into account in making my decision:

  the terms of your request

  the types of documents that are in the possession of the Department

  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. I also considered section 24A of the FOI Act (Requests may be refused
if documents cannot be found, do not exist or have not been received) relevant to my
decision and

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).

5.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 1.

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Reasons for decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

6.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

(a)
al  reasonable steps have been taken to find the document; and

(b)
the agency is satisfied that the document:
  (i)  is in the agency's possession but cannot be found; or

(ii)  does not exist.

7.  I am satisfied that all reasonable steps have been taken to find information relevant to your
request, having regard to:

•  the terms of your request

•  the subject matter of the documents

•  the current and past file management systems and the practice of orderly
destruction or removal of documents and

•  the Department’s record management systems and practices.

8.  The Minister’s diary is a document held by the Minister’s office and is not in the possession
of the Department, or a document that the Department has access to. For this reason, the
Department has been unable to locate any documents fal ing within the scope of your
request.

9.  If you would like to request a copy of the Minister’s diary, you may wish to submit an FOI
request to the Minister’s Office directly. The Minister’s Office can be contacted at:

Post:  PO Box 6022
House of Representatives
Parliament House
Canberra ACT 2600
Email:  xxxxxxxx@xxx.xxx.xx

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10.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A of the FOI Act.

Your rights of review

6.
If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (OAIC). In
accordance with section 54E(b) of the FOI Act, Internal Review is not available as the
Department did not finalise your FOI request within the prescribed statutory timeframe.

OAIC review

7.
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 fol owing 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

8.
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

Contact us

9.
If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the following details:
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

Yours sincerely,

Jo (Position Number 62210326)
Assistant Director
Information Law Section | Legal Services and Audit Branch
7 November 2019
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FOI
Schedule 1

Schedule of relevant provisions in the FOI Act

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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 fol owing:
  (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.
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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 fol owing:
(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).

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 conditional y
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 conditional y exempt.
Note 2:  A conditional y 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)).
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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 conditionaly 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).

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.
(see section 11A).

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) al 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.
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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 al reasonable steps to receive the document in accordance
with those contractual measures.

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 shal :
  (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 VI ) may be made.

(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
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exempt document.
(see section 11A).

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Document Outline