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6 February 2020
Our reference: LEX 50190
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 23 December 2019, and received by Department of Human
Services, now known as
Services Australia, on the same day, for access under the
Freedom
of Information Act 1982 (the
FOI Act) to the following documents:
‘1. The annual number - from 1992 to 2018 - of client MOD C forms provided to the
Department to be reported by State or Territory. The Department's Compensation
Management System ought to have this information and the date could be when the
new client record was created or the MOD C form signed or similar date. The address
fields would have the State or Territory.
The Centrelink Compensation and Damages form (MOD C) needs to be completed in
the event that an applicant or their partner is entitled to receive compensation. This
form is part of the claim for payment documentation to be provided to Centrelink when
individuals apply for income support.
2. The annual number - from 1992 to 2018 - of finalised compensation records to be
reported by State or Territory. This is where an insurer or law firm has paid the amount
requested by the Department and the client's obligation has been finalised.
3. The annual number - from 1992 to 2018 - for all outstanding compensation recovery
records to be reported by State or Territory. This is where clients have not yet had any
compensation recovery payments made to the Department.
4. Any Fact Sheets or similar documents that are provided to law firms to explain how
the compensation recovery calculations are made.’
To allow for Services Australia’s reduced activity period over December and January, the due
date for Services Australia to provide you with a decision on your FOI request was extended
to 6 February 2020.
My decision
I have decided to refuse your request for access under section 24A of the FOI Act on the basis
that all reasonable steps have been taken to locate the documents you have requested and I
am satisfied that they do not exist. I am also satisfied that section 17 of the FOI Act does not
apply in that Services Australia cannot produce a document to satisfy these parts of your
request by the ordinary use of a computer. Please see
Attachment A for the reasons behind
my decision.
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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 Services Australia, 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.
Further assistance
Whilst Services Australia does not have any documents matching part 4 of your request, it may
assist you to review the following webpage as it provides general information for lawyers and
insurers when dealing with compensation matters:
https://www.servicesaustralia.gov.au/organisations/business/services/centrelink/centr
elink-compensation-information-lawyers-and-insurers
If you have any FOI questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. Yours sincerely
Elsa
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom Of Information Branch | Legal Services Division
Services Australia
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Attachment A
REASONS FOR DECISION
What you requested
‘1. The annual number - from 1992 to 2018 - of client MOD C forms provided to the
Department to be reported by State or Territory. The Department's Compensation
Management System ought to have this information and the date could be when the
new client record was created or the MOD C form signed or similar date. The address
fields would have the State or Territory.
The Centrelink Compensation and Damages form (MOD C) needs to be completed in
the event that an applicant or their partner is entitled to receive compensation. This
form is part of the claim for payment documentation to be provided to Centrelink when
individuals apply for income support.
2. The annual number - from 1992 to 2018 - of finalised compensation records to be
reported by State or Territory. This is where an insurer or law firm has paid the amount
requested by the Department and the client's obligation has been finalised.
3. The annual number - from 1992 to 2018 - for all outstanding compensation recovery
records to be reported by State or Territory. This is where clients have not yet had any
compensation recovery payments made to the Department.
4. Any Fact Sheets or similar documents that are provided to law firms to explain how
the compensation recovery calculations are made.’
What I took into account
In reaching my decision I took into account:
your request dated 23 December 2019;
documents that would fall within the scope of your request;
consultations with Services Australia officers about:
o the nature of the documents, should they exist;
o Services Australia's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the
Guidelines); and
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 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:
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(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
The Debt Management Branch is the relevant subject matter expert for your request (
Branch).
The Branch conducted searches of Services Australia's databases, as well as consulting with
the Chief Data Officer Division of Services Australia. The Branch did not identify any
documents that were relevant to parts 1-3 of your request as Services Australia has not
previously reported on the data you sought.
The Branch further advised that Services Australia does not provide fact sheets or similar
documents to law firms to explain how compensation recovery calculations are made, and
therefore, no documents exist for part 4 of your request.
On the basis of these searches, I am satisfied that in accordance with section 24A of the FOI
Act:
1. all reasonable steps have been taken to find the documents; and
2. the documents do not exist.
Section 17 of the FOI Act
As your request captures information of the type that usually involves the use of a computer
system and database (data/statistics request), I have considered whether section 17 of the
FOI Act applies. Section 17 of the FOI Act provides that:
(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.’
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Does section 17(1) of the FOI Act apply?
Pursuant to section 17(1) of the FOI Act, I considered whether Services Australia could
produce a written document which would demonstrate the information you have requested in
a discrete form, by the use of a computer or other equipment that is ordinarily available to
Services Australia for retrieving or collating stored information.
I consulted with the Branch about the possibility of creating such a report. Upon consultation,
I was advised that Services Australia has never reported on the requested data. Therefore in
order to obtain a document that would satisfy the request, the Branch would need to develop
discrete code and/or programme to generate the data requested.
The FOI Guidelines at 2.33 provides:
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 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 Services Australia 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.
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Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a freedom of information (FOI) 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 FOI 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 Services Australia; 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 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 Services Australia 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.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
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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 Services Australia’s
decision on your FOI request
Include your contact details
Set out your reasons for objecting to Services Australia'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.
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