LEX 50220 Decision Final Letter.pdf

If not delivered return to PO Box 7820 Canberra BC ACT 2610

17 February 2020

Our reference:  LEX 50220
Ms Julie Middleton

By email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Middleton,

Decision on your Freedom of Information Request

I refer to your request dated 1 January 2020 and received by Services Australia (formerly the
Department of Human Services) on the same day for access under the Freedom of
Information Act 1982 (the FOI Act) to the following documents:

'1. The annual number of Newstart recipients from 2007 with an assessed work
capacity of under 30 hours per week, who have been sent for an independent medical
assessment. That is, a Disability Medical Assessment, with Sonic HealthPlus or other
service provider.

2. Statistics for the annual number of Newstart recipients from 2007, who have been
assessed under the Centrelink Impairment Tables as having a:

a) mild impact (5 points)
b) moderate impact (10 points)
c) severe impact (20 points); or
d) extreme (30 points) impact

The figures of the above, will reconcile with the annual totals in point 1.

3. The annual number of Newstart recipients from 2007, who have been assessed as
having 20 or more points from the Impairment Table, who:

a) have been actively participating in a Program of Support (POS); and
b) have a Mutual Obligation Requirement to attend compulsory appointments with
Centrelink every 12 weeks. This would be an exemption from being in the POS'.

My decision

I have decided to refuse your request for access under section 24A(1)(b)(ii) 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 any part of your request by the  use of a computer that
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is ordinarily available to Services Australia for retrieving or collating stored information.
Please see Attachment A for the reasons behind my decision.

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

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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If not delivered return to PO Box 7820 Canberra BC ACT 2610

Attachment A

REASONS FOR DECISION
What you requested
'1. The annual number of Newstart recipients from 2007 with an assessed work
capacity of under 30 hours per week, who have been sent for an independent
medical assessment. That is, a Disability Medical Assessment, with Sonic HealthPlus
or other service provider.

2. Statistics for the annual number of Newstart recipients from 2007, who have been
assessed under the Centrelink Impairment Tables as having a:

a) mild impact (5 points)
b) moderate impact (10 points)
c) severe impact (20 points); or
d) extreme (30 points) impact

The figures of the above, will reconcile with the annual totals in point 1.

3. The annual number of Newstart recipients from 2007, who have been assessed as
having 20 or more points from the Impairment Table, who:

a) have been actively participating in a Program of Support (POS); and
b) have a Mutual Obligation Requirement to attend compulsory appointments with
Centrelink every 12 weeks. This would be an exemption from being in the POS'.
What I took into account
In reaching my decision I took into account:
  your request dated 1 January 2020;
  documents that would fall within the scope of your request;
  other correspondence with you;
  consultations with Services Australia officers about:
o  the nature of the documents;
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:
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(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.
The Programme Management & Assurance Branch (Branch) is the relevant subject matter
expert for your request. The Branch is responsible for:
  the delivery of a systematic, disciplined approach to the management of programmes
in the Division - from inception to delivery; and
  collaborating to build strategic partnerships and supporting capability development to
create high performance teams.

The Branch conducted searches of Services Australia's electronic and paper files and did not
identify any documents that were relevant to your request. I was advised that Services
Australia does not report on the statistics requested.

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
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(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 3.204 of the Guidelines provides:

Section  17  requires  an  agency  to  produce  a  written  document  of  information  that  is
stored  electronically  and  hot  in  discrete  written  form…  The  obligation  to  produce  a
written document arises if:
  The agency could produce a written document containing the information by
using a ‘computer or other equipment that is ordinarily available’ to the agency
for retrieving or collating stored information…
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?

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
the department for retrieving or collating stored information.

To address this, I consulted with the Branch about the possibility of creating such a report.
Upon  consultation,  I  was  advised  that  Services  Australia  does  not  have  any  ordinarily
available  computer  program  that  is  capable  of  creating  a  document  containing  the
information  you  have  requested  without  extensive  manual manipulation. In  order to  obtain
the  information  you  have  requested,  the  Branch  would  need  to  raise  a  new  SAS  extract
request  that  would  output  raw  data  which  would  then  need  to  be  manually  compiled  and
presented in a user-friendly format. This process would take multiple months to complete.

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.

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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:

Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to
produce a document unless the effective and comprehensive means of doing so are
ordinarily available to it for the specified purpose. In that context, the computer or
other equipment ordinarily available for the specified purpose must be capable of
functioning independently to collate or retrieve stored information and to produce the
requested document.’

‘…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 of the FOI Act does not apply to your request.
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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 (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 Services Australia 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 agency 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.
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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 Services
Australia decision on your FOI request
  Include your contact details
  Set out your reasons for objecting to the agency'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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