Ref: LEX-20327
Mr John Smith
Via email:
John Smith <xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
Dear Mr Smith,
Freedom of Information request – Internal Review Decision
I refer to your request, received by the Department of Agriculture, Water and the Environment
(
department) on 28 July 2020 for internal review of the department’s decision under the
Freedom of Information Act 1982 (
FOI Act) dated 28 July 2020 (
Primary Decision) for access to
information regarding the number of non-APS staff working in roles that are substantially
identical to other APS employees.
My decision
I have decided to affirm the Primary Decision as I am satisfied that all reasonable steps have
been taken to locate the documents you have requested and I am satisfied that they do not exist.
Furthermore, I am satisfied that the department does not collect relevant data on non-APS staff
to undertake a detailed analysis to provide the requested data under section 17 of the FOI Act.
The reasons for my decision are set out in
Attachment A.
You can ask for a review of my decision
You may apply directly to the Office of the Australian Information Commissioner (
OAIC) to
review my decision. An application for review by the Information Commissioner must be made
in writing within
60 days after the day you are notified of this decision. You can also make a
complaint to the Information Commissioner if you have concerns about how the department
handled your request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC website www.oaic.gov.au or phone the OAIC on 1300 363 992.
Further assistance
If you have any questions, please email xxx.xxxxxxxxxxx@xxx.xxx.xx.
Yours sincerely
Neal Mason
First Assistant Secretary
People Division
26 August 2020
T +61 2 6272 3933
18 Marcus Clarke Street
GPO Box 858
awe.gov.au
F +61 2 6272 5161
Canberra City ACT 2601
Canberra ACT 2601
ABN 34 190 894 983
Attachment A
REASONS FOR DECISION
Background summary and what you requested
You made an FOI request to the department on 3 July 2020 for the following:
‘A document that contains the total number of non-APS staff, filling equivalent roles to actual APS
staff in your department.
Typically these employees are ostensibly employed through labour hire agencies, and fulfil
functionally equivalent roles to their colleagues.
If no such document exists please advise.’
On 10 July 2020, the department wrote to you providing you with the following data:
Non-APS staff
1,015
APS employees (including SES)
7,246
Notes on the data:
Non-APS staff includes contractors, service providers and consultants that require
access to the Department’s building and IT systems. Data does not include
contractors employed in the former Department of Environment and Energy.
Figures are head count. Data includes staff working for Parks Australia
On 10 July 2020, you wrote back to the Department with the following information:
‘I still would like to continue with my FOI request however; as the information you have generously
provided under adminstrative [sic]
release does not contain a key detail that I am interested in.
I would like to know how many of those 1,015 Non-APS staff; are working in roles that are
substantially identical to other APS employees.
As an example to explain what I mean; at the Administrative Appeals Tribunal, there are APS
employees that are employed as 'tribunal service officers'. However, there are also non-APS staff
that while being employed as contractors; fulfil exactly the same tasks as their colleages [sic]
, have
the same job description, manager, etc (except they work under a non-APS contract).
I am hoping to find out how many working at your department are working under that specific type
of arrangement.
For example; if a person was employed as a contractor cleaner, but there was no equivalent APS
cleaner role at the organisation, then they would be excluded from that headcount.’
On 28 July 2020, the original decision maker decided to refuse your request for access to
documents under section 24A of the FOI Act on the basis that all reasonable steps had been
taken to locate the documents you requested and the decision maker was satisfied that they do
not exist.
On 28 July 2020, you requested an internal review of the decision dated 10 July 2020.
What I took into account
In reaching my decision, I took into account:
your original request dated 3 July 2020 and the additional information you provided on
10 July 2020;
the original decision dated 28 July 2020;
your internal review request dated 28 July 2020;
information about:
o
the nature of the documents; and
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 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:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
In accordance with section 24A of the FOI Act, I am still satisfied that all reasonable steps have
been taken to find the documents and the documents do not exist.
On the basis of these searches, I am satisfied, in accordance with section 24A of the FOI Act, that
all reasonable steps have been taken to find the documents and the documents do not exist.
Section 17 of the FOI Act
(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.
I am satisfied that the department does not collect relevant data on non-APS staff to undertake a
detailed analysis to provide the requested data under section 17 of the FOI Act. For the
department to collect the relevant data you have sought, the department would need to
independently review each contract and service agreement for over 1,000 individual contracts
to determine the role the individual has been contracted to perform.
I am satisfied that the work involved in collecting this data and preparing a written document
with the information sought would substantially and unreasonably divert the resources of the
department from its other operations.
