Reply to: GPO Box 4889, Sydney NSW 2000
Andy Johnson
Our reference:
1-KSCATOD
By Email Only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
31 March 2020
Dear Mr Johnson
Decision regarding your Freedom of Information request
I refer to your request dated 19 August 2019 seeking access under the
Freedom of
Information Act 1982 (
FOI Act) to documents held by the Australian Taxation Office (
ATO).
I am an officer authorised under section 23 of the FOI Act to make decisions regarding
access to documents.
Decision
I have decided to refuse you access to the requested documents pursuant to paragraph
24(1)(b) of the FOI Act
Reasons for decision
Following a ‘request consultation process’, I consider that the ‘practical refusal reason’ still
exists because the work involved in processing your request as you have proposed to revise
it would substantially and unreasonably divert the ATO’s resources from its other operations
(subparagraph 24AA(1)(a)(i)).
Request consultation process
Before a decision can be made to refuse a request for documents for a ‘practical refusal
reason’, an agency or Minister is required by paragraph 24(1)(a) of the FOI Act to undertake
a ‘request consultation process’ in accordance with section 24AB.
On 18 March 2020 I sent you a notice (
the Notice) advising of my intention to refuse you
access to the documents requested on the basis that a ‘practical refusal reason’ existed.
The scope of your FOI request was initially for the following documents:
1.
A copy of all reports / documents delivered by consulting firm McKinsey & Company
to the ATO since 1990. In addition, I would like to request a copy of each invoice paid
to McKinsey for each report (including $ fees paid, rate card applied, and other
commercial terms).
In the Notice, I advised you that publically available information on Austender showed details
of agreements since 1999. There are 3 agreements detailed on the Austender website that
fall within the scope of your request. In order to complete your request in respect of just one
Freedom of Information – Andy Johnson
Page 1 of 5
of those agreements, not less than 13 staff members across five separate business areas
would be required to be diverted from their usual work activities.
I noted that searches would be required to be conducted across numerous electronic
formats and systems in order to ensure that all documents were retrieved. I also identified
that the engagement of McKinsey was on an ongoing basis, and for each agreement their
engagement occurred across several months.
The Notice invited you to narrow your request and, to assist you in doing so, I suggested that
you:
revise the time frame over which you seek documents (eg. to seek only
documents over the past 3 years;
restrict your request to copies of final reports and invoices only;
revise or reduce the categories of documents sought for the request (eg. seek
only one type of document, such as invoices, or limit your request to one of the
particular agreements named on the Austender website);
exclude draft documents and email correspondence; and/or
otherwise simplifying the request.
Those suggestions were intended as a starting point, and I advised that they may not, by
themselves, sufficiently reduce the scope of your request so as to remove the practical
refusal reason.
In the request consultation process, you proposed to revise the scope to:
“We can restrict the request to only cover the last 24 months and only include reports
written by the firm.”
Practical refusal reason
Subparagraph 24AA(1)(a)(i) of the FOI Act provides that a ‘practical refusal reason’ exists if
the work involved in processing the request would ‘substantially and unreasonably divert the
resources of the agency from its other operations’.
In determining whether processing your proposed revised request would
substantially and
unreasonably divert the ATO’s resources, subsection 24AA(2) of the FOI Act requires me to
have regard to the resources that would have to be used for the following:
identifying, locating or collating the documents within the filing systems of the ATO;
deciding whether to grant, refuse or defer access to a document including resources
used for examining the document and consulting with any person or body in relation
to the request;
making a copy, or an edited copy, of the documents; and
notifying you of any decision on the request.
Your request is substantial and complex
Freedom of Information – Andy Johnson
Page 2 of 5
While you have made an effort to reduce the scope of your request, I find that your proposed
revised request remains
substantial and complex for the following reasons:
Limiting the request to the last 24 months only reduces the requirement for the ATO
to search its archives. As shown on the Austender Website, and advised in the
Notice 3 separate agreements all fall within your revised proposed scope.
I have consulted with the Business line again to obtain a conservative estimate of the
volume of pages for one agreement noting that there are three agreements that still
fall within the scope of this request.
They have identified that for one agreement, from a preliminary search at least 13
separate reports were prepared and delivered to the ATO from McKinsey. For the
reports identified, it is identified that from a sample, at least 120 pages would be
caught within the scope of the request. Further searches, would still be required to
identify any additional reports provided by email.
Notwithstanding the volume of documents, the nature of the documents themselves
is complex. In respect of one of the agreements, the ATO engaged McKinsey for
data analytics work, and risk analysis directly related to taxation compliance activity.
The development of analytics underpinning compliance is by its nature, sensitive
information.
The documents are therefore likely to attract exemptions or conditional exemptions;
particularly those relating to personal privacy of third parties, and documents that
may prejudice the administration of the taxation law.
Your proposed revisions have had little impact on mitigating the need to carefully
consider several exemption provisions, which, overall, add to the time and FOI
resources required to process your request, and the complexity I referred to in the
Notice.
The technical nature of the documents will still require ATO specialists to be diverted
from their duties, in order to explain analytics or technical information conveyed, so
that appropriate exemptions may be determined
The volume of documents caught by the revised scope would only be slightly reduced and
the complexity of the request as a whole remains unchanged under the revised scope.
Your request diverts resources from the ATO’s other operations
Despite your proposal to revise your request, I have found that the business line resources
that would be diverted from their normal operations to process your request, remain almost
the same as for the initial scope of your request. That is:
Aside from the necessity to search through the archives, the number of personnel to
be consulted remains unchanged.
The personnel involved would span across numerous business lines, and would still
need to be diverted from their regular duties, to search extensively for documents
spanning a long period of time, as well as to advise extensively in relation to the
majority of documents and any proposed exemptions.
Further, the requirement to consult with a third party, extensively in respect of the
documents still remains.
Freedom of Information – Andy Johnson
Page 3 of 5
As foreshadowed in the Notice, technical content would need to be reviewed by the
officers with appropriate speciality.
Your request is unreasonable
I further note that the considerations outlined in the Notice, with respect to FOI resources
required to process your request, remain the same. That is, based on your proposed
revisions:
Information available on Austender identifies key aspects of the ATO’s engagement
of McKinsey. This remains a broad request, in circumstances where publically
available information provides guidance as to the ATO’s engagement of McKinsey.
Relevant material
In reaching my decision, I have relied on the following evidence and authorities:
your FOI application;
consultation with the relevant ATO business area;
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner (
OAIC) under
section 93A of the FOI Act.
Your review rights
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. I encourage you to seek internal review as a first step,
as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the ATO for an internal review of
my decision. The internal review application must be made within 30 days of the date of this
letter, quoting our reference number at the top of this letter, and be lodged in one of the
following ways:
email:
xxx@xxx.xxx.xx
post:
Australian Taxation Office, General Counsel, GPO Box 4889, Sydney
NSW 2001.
Where possible, please attach reasons why you believe review of the decision is necessary.
The internal review will be carried out by another officer within 30 days. If you have not been
informed of the outcome of the review within that time, you may apply to the OAIC under
section 54L of the FOI Act.
Information Commissioner Review
Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by the OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the following ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
Freedom of Information – Andy Johnson
Page 4 of 5
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 5218, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
Your application must include a copy of this letter (and any attachments), an address where
notices can be sent to you (eg. your email address) and particulars of the basis on which you
dispute the decision.
Visit the OAIC website,
www.oaic.gov.au/freedom-of-information/foi-reviews, for more
information about Information Commissioner review.
Complaints
Any complaint about the processing of your FOI request can be forwarded to the OAIC. The
complaint needs to be in writing and identify the agency against which the complaint is
made. There is no particular form required to make a complaint, however using the online
form is preferable.
online:
https://forms.business.gov.au/aba/landing.htm?formCode=ICCA_1
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 5218, Sydney NSW 2001
in person: Level 3, 175 Pitt Street, Sydney NSW
The OAIC can be contacted on 1300 363 992 for the cost of a local call.
For more information
If you have any questions in respect of your request, please email the contact officer on
xxx@xxx.xxx.xx.
Yours sincerely
L.Carley
Principal Lawyer
General Counsel
Australian Taxation Office
Freedom of Information – Andy Johnson
Page 5 of 5
