Our ref:
FOI20/095; CM20/6301
29 July 2020
Mr John Smith
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request FOI20/095 – Decision Letter
The purpose of this letter is to give you a decision about your request for access to documents which
you submitted to the Attorney-General's Department (the department) under the
Freedom of
Information Act 1982 (the FOI Act).
Your Request
On 3 July 2020, you requested access to:
A document that contains the total number of non-APS staff, fil ing 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 col eagues. If no such
document exists please advise.
On 7 July 2020, the department acknowledged your request.
A decision in relation to your request is due on 3 August 2020.
My Decision
I am an officer authorised under subsection 23(1) of the FOI Act to make decisions in relation to
freedom of information requests made to the department.
In making my decision, I have taken the fol owing into account:
the terms of your request,
advice provided to me by officers with responsibility for matters to which your request
relates,
the provisions of the FOI Act,
the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the Guidelines), and
the decision given by the Full Federal Court of Australia in the matter of
Collection Point Pty
Ltd v Commissioner of Taxation [2013] FCAFC 67 (
Collection Point).
Section 24A of the FOI Act relevantly provides that an agency or Minister may refuse a request for
access to a document if al reasonable steps have been taken to find the document and the agency is
satisfied that the document:
is in the agency’s possession but cannot be found; or
does not exist.
When considering a decision to refuse access under s 24A of the FOI Act, the Guidelines relevantly
provide at [3.89] that an agency or minister should take comprehensive steps to locate documents,
having regard to:
the subject matter of the documents,
the current and past file management systems and the practice of destruction or removal of
documents,
the record management systems in place,
the individuals within an agency or minister’s office who may be able to assist with the
location of documents, and
the age of the documents.
Section 17 of the FOI Act relevantly provides that where 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 the agency could produce a written document containing the information in discrete
form by the use of a computer or other equipment that is ordinarily available to the agency for
retrieving or collating stored information, 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.
To identify the document for your request, I arranged for staff in the department’s Business
Operations Branch to conduct searches of Aurion, the departmental system used to maintain
employee information, report on human resources information and maintain organisational
structures for the department. However, the staff were unable to identify the information in the
form you requested to access it.
In addition to the above, I sought advice from staff employed in the department’s Human Resources
Branch. The staff employed in the Human Resources Branch relevantly advised that it is not possible
to use only data from Aurion to create a document containing the information you requested to
access. This is because Aurion does not differentiate between people described as contractors who
meet the definition of ‘
non-APS staff, fil ing equivalent roles to actual APS’ and those falling into
another category. For example, consultants, auditors and security guards who are recorded on
Aurion as ‘contractors’ for administrative purposes.
The staff employed in the Human Resources Branch further advised that it may be possible to
produce the document you requested to access, but that this would require the examination of the
circumstances of every person categorised as contractor in Aurion. In particular, it would require
that every business area in the department examine Aurion data and advise if persons they engaged
and registered as a ‘contractor’ in the system meet the definition of ‘
non-APS staff, filling equivalent
roles to actual APS’. Subject to responses received from various business areas, this would further
require that a departmental officer amend Aurion data so that it could be produced into a discrete
document containing only the information you requested to access.
To determine whether the department is required by section 17 of the FOI Act to undertake the
steps above to produce the document you have requested to access, I have had regard to the matter
of
Collection Point. In that matter the Full Federal Court, relevantly, found that:
Section 17(1)(c)(i) is directed at ensuring that an agency wil 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 col ate or
retrieve stored information and to produce the requested document1.
1 [2013] FCAFC 67 [44].
Freedom of Information request FOI20/095 – Decision Letter Page 2 of 3
Having regard to the above, I am satisfied that the department is not be able to produce the
document you have requested, using a computer or other equipment that is ordinarily available, and
which is capable of functioning independently to collate or retrieve stored information and to
produce the requested document. I am also satisfied that that the document does not exist within
the department’s records holdings. I have therefore decided to refuse access pursuant to section
24A of the FOI Act.
Additional Information
Please note you can read more about the department’s employee profile in its annual reports, which
are available at www.ag.gov.au.
Your review rights under the FOI Act are set out at
Attachment A to this letter.
If you wish to discuss this decision, you can the FOI case officer for this matter, Sarah, who can be
reached on (02) 6141 6666 or by email to xxx@xx.xxx.xx.
Yours sincerely
Antony Catt
Director
Freedom of Information and Privacy Section
Attachments
Attachment A:
Review Rights
Freedom of Information request FOI20/095 – Decision Letter Page 3 of 3