23 Marcus Clarke Street
Canberra ACT 2601
GPO Box 3131
Canberra ACT 2601
Our ref:
1004021
tel: (02) 6243 1111
Contact officer:
FOI Team
fax: (02) 6243 1199
Contact phone:
02 6243 1244
www.accc.gov.au
9 December 2019
Ms Julie Middleton
Sent via email to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Middleton
I refer to your email of 8 November 2019 in which you have requested access, under
the Freedom of Information Act 1982 (Cth), to:
‘copies of the fol owing reports produced by:
1. Cumpston Sarjeant Pty Ltd, which was commissioned by the Law Council of
Australia; and
2. Finity Consulting, which was commissioned by the Insurance Council of
Australia.’
Document publicly available
Your request seeks access to two separate reports, the first being a report by
Cumpston Sarjeant Pty Ltd (point 1 of your request). The Cumpston Sarjeant Pty Ltd
report is publicly available and can be found on The Parliament of New South Wales
website:
https://www.parliament.nsw.gov.au/committees/DBAssets/InquirySubmission/Body/4
2488/Submission%202%20-%20attachment%201.pdf
Decision
In relation to the report by Finity Consulting (point 2 of your request), I have decided
to refuse your request, under s.24A(1) of the Act on the basis that the document
cannot be found.
I am authorised under s.23 of the Act to make this decision.
Reasons for decision
Section 24A(1) of the Act relevantly provides as fol ows:
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.
Therefore, we may refuse a request for access to a document if we take al
reasonable steps to find that document and we are satisfied that the document
cannot be found.
The document in question was created in 2005. At that time, the ACCC’s records
were predominately kept on hardcopy files. The 2005 ACCC insurance monitoring
work was undertaken by the Transport and Prices Oversight branch. This branch no
longer exists within the ACCC and former staff who worked directly on the ACCC 5th
Public liability and professional indemnity insurance monitoring report no longer work
in the organisation.
The ACCC took the following step to locate the document:
A thorough search by the relevant line area of our databases, internal ACCC
website and external ACCC website to locate any information or documents that
relate to your request. This search included attempting to identify where the
document may have been located.
Confirmation from the relevant line area that the branch/team that undertook the
public liability insurance work was based in the then ACCC Melbourne office and
that no hard copy files which could relate to the document are held in the current
ACCC Melbourne office.
Based on the nil results of these steps, I conclude that the requested document
cannot be found within the records of the ACCC. It is possible that the document has
been lawful y destroyed in accordance with the Archives Act 1983.
Although we could not locate a copy of the report, we did locate a summary of the
report, which can be found on the Australasian Legal Information Institute website:
http://classic.austli .edu.au/au/journals/PrecedentAULA/2005/79.html
We suggest that you may wish to approach Finity Consulting directly, to enquire
about a copy of the ful report. Contact details can be found on their website:
https://www.finity.com.au/contact-us.
Rights of review
Your rights of review are set out in Attachment A.
Yours sincerely
Rebecca Fenech
FOI & LSD Compliance Manager
ACCC Legal Group
Sent by email 9/12/2019
2
ATTACHMENT A
Extract from the Freedom of Information Act
SECT 24 Power to refuse request--diversion of resources etc.
(1) If an agency or Minister is satisfied, when dealing with a request for a
document, that a practical refusal reason exists in relation to the request
(see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB);
and
(b) if, after the request consultation process, the agency or Minister is
satisfied that the practical refusal reason stil exists--the agency or
Minister may refuse to give access to the document in accordance
with the request.
(2) For the purposes of this section, the agency or Minister may treat 2 or
more requests as a single request if the agency or Minister is satisfied
that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is
substantial y the same.
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
(i ) 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 al reasonable steps to receive the document
in accordance with those contractual measures.
3
SECT 24AA When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in
relation to a request for a document if either (or both) of the fol owing
applies:
(a) the work involved in processing the request:
(i) in the case of an agency--would substantial y and
unreasonably divert the resources of the agency from its other
operations; or
(i ) in the case of a Minister--would substantial y and unreasonably
interfere with the performance of the Minister's functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b)
(identification of documents).
(2) Subject to subsection (3), but without limiting the matters to which the
agency or Minister may have regard, in deciding whether a practical
refusal reason exists, the agency or Minister must have regard to the
resources that would have to be used for the fol owing:
(a) identifying, locating or col ating the documents within the filing
system of the agency, or the office of the Minister;
(b) deciding whether to grant, refuse or defer access to a document to
which the request relates, or to grant access to an edited copy of
such a document, including resources that would have to be used
for:
(i) examining the document; or
(i ) consulting with any person or body in relation to the request;
(c) making a copy, or an edited copy, of the document;
(d) notifying any interim or final decision on the request.
(3) In deciding whether a practical refusal reason exists, an agency or
Minister must not have regard to:
(a) any reasons that the applicant gives for requesting access; or
(b) the agency's or Minister's belief as to what the applicant's reasons
are for requesting access; or
(c) any maximum amount, specified in the regulations, payable as a
charge for processing a request of that kind.
SECT 24AB What is a request consultation process?
(1) This section sets out what is a request consultation process for the
purposes of section 24.
Requirement to notify
4
(2) The agency or Minister must give the applicant a written notice stating
the fol owing:
(a) an intention to refuse access to a document in accordance with a
request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the
Minister (the contact person ) with whom the applicant may consult
during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the
applicant may consult with the contact person is 14 days after the
day the applicant is given the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation
period in accordance with the notice, the agency or Minister must take
reasonable steps to assist the applicant to revise the request so that the
practical refusal reason no longer exists.
(4) For the purposes of subsection (3), reasonable steps includes the
fol owing:
(a) giving the applicant a reasonable opportunity to consult with the
contact person;
(b) providing the applicant with any information that would assist the
applicant to revise the request.
Extension of consultation period
(5) The contact person may, with the applicant's agreement, extend the
consultation period by written notice to the applicant.
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of
the fol owing, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the
end of the consultation period if:
(a) the applicant does not consult the contact person during the
consultation period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in
subsection (6) before the end of the consultation period.
5
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under
subsection (2) and ending on the day the applicant does one of the things
mentioned in paragraph (6)(b) or (c) is to be disregarded in working out
the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take al
reasonable steps to notify an applicant of a decision on the applicant's
request within 30 days after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to
undertake a request consultation process once for any particular request.
6
