8 August 2020
Mr John Smith
BY EMAIL: firstname.lastname@example.org
In reply please quote:
Dear Mr Smith
Decision on Internal Review – Freedom of Information Act 1982
I refer to your correspondence dated 10 August 2020 in which you requested that the
Department of Home Affairs (the Department) review its decision on access to documents
dated 7 August 2020 under the Freedom of Information Act 1982
(the FOI Act).
Scope of original request
The scope of your original request for access to documents under the FOI Act was as
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 colleagues.
Original Decision on access dated 7 August 2020
The Department conducted reasonable searches and found no documents that fell within
the scope of your original request. As such, a decision was made under section 24A of the
Act to refuse access to the documents sought.
Request for Internal Review
On 10 August 2020, you requested the Department to review its decision dated 7 August
2020. In your request, you stated:
I seek internal review of this decision on the ground that the document should be
produced under s17(1) of the act.
On 27 August 2020, after consultation with FOI Reviews, you agreed to revise the scope
of your internal review to be the:
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'total number of number of non-APS staff employed by the Department' on today's
'total number of number of non-APS staff employed by the Department' on today's
date fulfil ing roles equivalent to actual APS officers'
'please include a list of position titles of all non-APS staff at the department. You
may omit repeated position titles. Please indicate the number of non-APS staff that
hold that title.'
I have interpreted this request to be for information relating to non-APS staff employed by
the Department in contractor roles current at 27 August 2020.
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate departmental records.
In accordance with section 54C(3) of the FOI Act, I have made a fresh decision on your
In reaching my decision, I have considered the following:
• the scope of your request
• the Department’s original decision of 7 August 2020 and the evidence gathered for
• your revised internal review scope of 27 August 2020
• your submissions in relation to your reasons for requesting an internal review
• the documents falling within the scope of your request
• advice from departmental officers with responsibility for matters relating to the
information to which you sought access
• the FOI Act, and
• the Australian Information Commissioner’s guidelines relating to the
interpretation, operation and administration of the FOI Act (the FOI guidelines).
Internal Review Decision
I have decided to:
release one document in full
refuse access to one document in full under section 24A of the FOI Act on the basis
that the document does not exist.
Reasons for Internal Review Decision
I have reviewed the documents that fall within the scope of this request and I have
considered the submissions made by you in relation to your reasons for requesting an
The Department has undertaken additional reasonable searches for documents within the
scope of your request. These searches included additional consultation with the
responsible business area. During these searches, an additional one document was
identified as relevant to the scope of the revised internal review request. This document
relates to parts one and three of your revised internal review request. I have decided to
release this document to you in full.
My decision in relation to part 2 of your request is stated below.
Section 17(1) and 24A assessment
You have requested access to the 'total number of number of non-APS staff employed by
the Department' on today's date fulfil ing roles equivalent to actual APS officers'.
On 27 August 2020, the responsible business area advised that it does not hold
information as to the 'total number of number of non-APS staff employed by the
Department' fulfil ing roles equivalent to actual APS officers'.
The business area had earlier advised that that there would be no correlation between the
'total number of non-APS staff employed by the Department' reported by the Department
and the 'number of non APS staf fil ing equivalent roles to actual APS staff'. This is
because the contractor positions, and the number of them, are not necessarily otherwise
equivalent to APS roles.
Section 17 of the FOI Act is relevant to consideration of whether a practical refusal
reasons exists in relation to the information you have requested.
17 Requests involving use of computers etc.
(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
(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
(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
(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 have carefully considered whether Section 17(1)(c)(i) of the FOI Act is relevant to your
The FOI Guidelines relevantly explain [3.207] that in In Collection Point Pty Ltd v
Commissioner of Taxation] the Full Federal Court …
‘held that 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.’ This wil be a question
of fact in the individual case, and may require consideration of ‘the agency’s
ordinary or usual conduct and operations’. For example, new software may be
ordinarily available to an agency that routinely commissions or otherwise obtains
such software, but not to an agency that does not routinely do such things’.
On the basis of the advice provided by the responsible business area, I am satisfied that
the information you seek is not held by the Department in discrete form, and could not be
produced via ordinarily available use of the Department’s computer systems. I am
therefore satisfied that section 17(1)(c) of the FOI Act does not apply to your access
As I am satisfied that section 17(1)(c) of the FOI Act does not apply to your access
request, I have considered whether section 24A applies to your access request.
24A Requests may be refused if documents cannot be found, do not exist or
have not been received
(1) An agency or Minister may refuse a request for access to a document
(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
(ii) does not exist.
In the case of your access request, I am satisfied that the information to which you seek
access is not held by the Department in discrete form or could be produced via ordinary
use of its computer systems. I am therefore satisfied that the document you seek does not
exist. For this reason, I have decided to refuse your access request under section
24A(1)(b)(ii) of the FOI Act.
The schedule of the document that fall within the scope of your Internal Review at
sets out the decision on access and, where appropriate, refers to
various sections of the FOI Act.
A copy of the FOI Act is available at https://www.legislation.gov.au/Details/C2017C00251.
If you are unable to access the legislation through this website, please contact our office
for a copy.
Your Review Rights
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC)
for a review of this decision. You must apply in writing within 60 days of this notice. For
further information about review rights and how to submit a request for a review to the
OAIC, please see Fact Sheet 12 "Freedom of information – Your review rights", available
online at https:/ www.oaic.gov.au/freedom-of-information/foi-review-process.
10 Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which
it is considered that the action taken in relation to the request should be investigated and
identify the Department of Home Affairs as the relevant agency.
Authorised Decision Maker
Department of Home Affairs