If not delivered return to PO Box 7820 Canberra BC ACT 2610
28 November 2019
Our reference: LEX 48556
Ms Julie Middleton
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Ms Middleton,
Decision on your Freedom of Information Request
I refer to your request, dated 21 October 2019 and received by the Department of Human
Services (
department) on the same date, for access under the
Freedom of Information Act
1982 (
FOI Act) to the following documents:
1. ‘Annual revenue totals from 1992 to 2018 (both inclusive) received as a consequence
of the statutory refunds in relation to the Social Security Act 1991 (Cth).
2. To determine statistics for each state and territory, reconcile with the figures in point 1
and provide:
a) the annual totals of revenue received from law firms for each separate state
and territory;
b) the number of transactions that make up the totals in 2 (a). This will identify if
there are fewer claims in specific states. Reporting in relation to the MODC
forms would assist.
3. The annual revenue totals from 1996 to 2018 received as a consequence of the
statutory refunds in relation to the Health and Other Services (Compensation) Act
1995 (Cth).
4. From the figures provided in point 3, the annual totals for the revenue received from
law firms in the separate states and territories. These figures will show the recovery
rates per state and territory.
5. The annual figures in relation to points 1/2 and 3/4 that have been paid directly from
insurers or their claims’ managers.’
PAGE 1 OF 9
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My decision
I have decided to
refuse access to your request under section 24A(1)(b)(ii) of the FOI Act on
the basis that all reasonable steps have been taken to find the documents that you have
requested and I am satisfied that they do not exist.
I am further satisfied that section 17 of the FOI Act does not apply because the department
cannot produce documents, by the ordinary use of a computer, that would satisfy your
request.
Please see
Attachment A for the reasons behind my decision.
Processing charge
On 12 November 2019, the department notified you of a preliminary processing charge
of $60.00. This charge was based on an estimate calculated in accordance with section 9 of
the
Freedom of Information (Charges) Regulations 2019 (
Charges Regulations)
On 20 November 2019, you emailed the department to advise that a money order in the
amount of $60.00 had been sent to the department on 13 November 2019. The money order
was received by the department on 20 November 2019.
During the processing of your request, it became apparent that the documents that you
requested did not exist and could not be produced by the department through ordinary use of
a computer system. As such, the charge payable has been adjusted to nil in accordance with
section 10 of the Charges Regulations.
The department will refund the $60.00 preliminary charge that you paid. Please directly email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx and advise which of the following you would
prefer:
for the money order to be returned to you by express post. In this case, please
provide your postal address; OR
for the money to be returned to you by direct deposit into your bank account. In this
case, please provide the account name, BSB, and account number of your preferred
bank account, as well as your street address. Please note that this option may take
longer than returning the money order directly to you.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the department, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
reviews of decisions. See
Attachment B for more information about how to arrange a
review.
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Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Further assistance
If you have any questions regarding your freedom of information request please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely,
Riley Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
PAGE 3 OF 9
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
REASONS FOR DECISION
What you requested
1. ‘Annual revenue totals from 1992 to 2018 (both inclusive) received as a consequence
of the statutory refunds in relation to the Social Security Act 1991 (Cth).
2. To determine statistics for each state and territory, reconcile with the figures in point 1
and provide:
a) the annual totals of revenue received from law firms for each separate state
and territory;
b) the number of transactions that make up the totals in 2 (a). This will identify if
there are fewer claims in specific states. Reporting in relation to the MODC
forms would assist.
3. The annual revenue totals from 1996 to 2018 received as a consequence of the
statutory refunds in relation to the Health and Other Services (Compensation) Act
1995 (Cth).
4. From the figures provided in point 3, the annual totals for the revenue received from
law firms in the separate states and territories. These figures will show the recovery
rates per state and territory.
5. The annual figures in relation to points 1/2 and 3/4 that have been paid directly from
insurers or their claims’ managers.’
What I took into account
In reaching my decision I took into account:
your original request, dated 21 October 2019;
other correspondence with you;
consultations with departmental officers about:
o the nature of the documents;
o the department's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (
Guidelines); and
the FOI Act.
Reasons for my decision
I am authorised to make decisions under subsection 23(1) of the FOI Act.
Section 24A of the FOI Act
Section 24A of the FOI Act provides that:
(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.
PAGE 4 OF 9
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Part 1 of your request
In relation to part 1 of your request, the Debt Management Branch, which is the area of the
department responsible for compensation recovery under the
Social Security Act 1991,
undertook searches of its paper and electronic files. This Branch advised that it does not hold
documents setting out the annual total compensation recovered under the
Social Security
Act 1991.
Parts 2(a) and (b) of your request
As detailed above regarding part 1 of your request, the department does not hold documents
with annual totals of compensation recovered under the
Social Security Act 1991 from 1992
to 2018. I am further advised by the Debt Management Branch that the department does not
recover compensation charge amounts from law firms. Rather, compensation money is
typically recovered from an insurer or other compensation payer, or from the individual
Centrelink. As such, the department also does not hold documents relevant to part 2(b) of
your request, regarding the number of transactions in which compensation was recovered
from law firms.
Part 3 Regarding part 3 of your request, the Medicare and Veterans Health Branch, which is the
area of the department responsible for compensation recovery under the
Health and Other
Services (Compensation) Act 1995, conducted searches of its files. This Branch advised that
it was unable to locate a document setting out the annual total compensation recovered
under the
Health and Other Services (Compensation) Act 1995 from 1996 to 2018. This
Branch advised that annual total compensation recovered for each year is publicly available
in the annual reports of the Health Insurance Commission or the Department of Health (for
financial year 1996/97 to 2004/05), Medicare Australia (for 2005/06 to 2010/11), or the
Department of Human Services (for 2011/12 onwards).
For your assistance, please find the department’s annual reports since 2011/12 on our
website at:
humanservices.gov.au/organisations/about-us/annual-reports, and previous
Medicare
Australia
and
Health
Insurance
Commission
annual
reports
at:
humanservices.gov.au/organisations/about-us/annual-reports/annual-report-archive. Archived annual reports may also be available through the National Library of Australia,
including through their website at
nla.gov.au. Part 4 As detailed above regarding part 3 of your request, the department does not hold any
documents with annual totals of compensation recovered under the
Health and Other
Services (Compensation) Act 1995, including any documents showing the annual totals
broken down by whether they were received from a law firm.
Part 5
As detailed above, the department does not hold any documents detailing annual totals of
compensation recovered under the
Social Security Act 1991 or the
Health and Other
Services (Compensation) Act 1995, including any documents breaking down these figures by
the party from which compensation was recovered.
On the basis of these searches, I am satisfied that in accordance with section 24A(1)(b)(ii) of
the FOI Act:
1. all reasonable steps have been taken to find the documents; and
2. the documents do not exist.
PAGE 5 OF 9
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Section 17 of the FOI Act
Section 17 of the FOI Act relevantly provides:
(1) Where:
(a) a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is
not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the 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 written 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 the 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 the agency from its other
operations.
Paragraph 3.207 of the Guidelines provides:
‘…the reference in s 17(1)(c)(i) to a ‘computer or other equipment that is ordinarily
available’ means ‘a functioning computer system including software, that can produce
the requested document without the aid of additional components which are not
themselves ordinarily available … [T]he computer or other equipment … must be
capable of functioning independently to collate or retrieve stored information and to
produce the requested document.’
Does section 17(1) of the FOI Act apply?
The Debt Management Branch and Data Analytics Innovation Branch each advised that the
department holds some data relevant to part 1 of your request in its Enterprise Data
Warehouse.
Pursuant to subsection 17(1) of the FOI Act, I considered whether the department could
produce a written document relevant to part 1 of your request by the use of a computer or
other equipment that is ordinarily available to the department for retrieving or collating stored
information.
I made further enquiries with the department’s Data Analytics Innovation Branch, which is the
area of the department responsible for extracting data and producing reports from the
department’s Enterprise Data Warehouse. This Branch advised that Centrelink
compensation recovery data has been stored in the Enterprise Data Warehouse since mid-
2015. The Data Analytics Innovation Branch further advised that the department is currently
only able to extract a monthly report of Centrelink compensation recovery data from this
database, and that it would not be possible to extract annual figures through the ordinary use
of the existing computer program used to do this.
PAGE 6 OF 9
Department of Human Services
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The Data Analytics Innovation Branch advised that extracting annual figures would require
the department to produce a new computer program, or for the department to manually
collate monthly figures and produce a new document. The Data Analytics Innovation Branch
further advised that, even if the department were to create a new computer program to
satisfy your request, it would not be able to provide annual figures prior to financial year
2015/16.
The Guidelines at paragraph 2.33 provide:
The right of access under the FOI Act is to existing documents, rather than to
information. The FOI Act does not require an agency or minister to create a new
document in response to a request for access, except in limited circumstances where
the applicant seeks access in a different format or where the information is stored in
an agency computer system rather than in discrete form (see Part 3 of these
Guidelines). A request may nevertheless be framed by reference to a document that
contains particular information.
In
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67, the Full Federal
Court considered the application of section 17 of the FOI Act and found, at paragraph 51:
‘…the need for a new computer program to enable the computer ordinarily available
to the agency for retrieving or collating stored material to produce the requested
document is a fact capable of meaning that the agency cannot, by the use of a
computer ordinarily available, produce the requested document.’
Accordingly, I am satisfied that a document cannot be created by the use of a computer that
is ‘ordinarily available’ to the agency for retrieving or collating stored information and, as
such, I am satisfied that section 17(1) of the FOI Act does not apply to your request.
PAGE 7 OF 9
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a freedom of information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of a freedom of information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (
department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 8 OF 9
If not delivered return to PO Box 7820 Canberra BC ACT 2610
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available
at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request
Include your contact details
Set out your reasons for objecting to the department's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act,
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 9 OF 9
Department of Human Services
