Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
17 August 2020
Tel: +61 1300 935 075
Fax: +61 1300 729 000
Mr Phil ip Sweeney
www.asic.gov.au
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Sweeney
Request for internal review – Notice of decision IR 123-2020
I refer to your request dated 12 July 2020 under the
Freedom of Information Act
1982 (the
FOI Act) in which you seek access to documents in the possession of
the Australian Securities and Investments Commission (
ASIC).
Your request seeks access to the following:
“a copy of the title page of any law dictionaries in the possession of ASIC
that wil identify the name and edition of that or those law dictionaries”
By letter dated 11 August 2020 you were advised of ASIC’s decision (the
Decision) in relation to your request.
On 11 August 2020 you requested a review of the Decision under s 54B of the
FOI Act.
Decision
I am an authorised decision maker for the purposes of section 23(1) of the FOI
Act.
I have taken the following material into account in making my decision:
• the FOI Act (specifically sections 4 and 15);
• the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (
the FOI Guidelines);
• the notice dated 11 August 2020 prepared by the original decision
maker; and
• Your email of 11 August 2020.
I have reviewed the material related to this matter and have decided to
affirm the Decision of 11 August 2020 for the reasons set out below.
2
Reasons for Decision
Section 15(1) of the FOI Act specifically provides a right of access for applicants
to documents of an agency by providing that:
‘a person who wishes to obtain access to a document of an agency or
an official document of a Minister may request access to the
document.’
To assist in determining the extent to which material can be categorised as a
document of the agency, reference is made to section 4 of the FOI Act which
provides a list of terms and the meanings which they are given under the FOI
Act.
Section 4(1) provides that a document is the
document of an agency if:
(a) the document is in the possession of the agency, whether created in
the agency or received in the agency;
Section 4(1) further provides that a
document includes:
(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(ii ) any paper or other material on which there are marks, figures,
symbols or perforations having a meaning for persons qualified to
interpret them;
(iv) any article or material from which sounds, images or writings
are capable of being reproduced with or without the aid of any
other article or device;
(v) any article on which information has been stored or recorded,
either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate;
but does not include:
(d) material maintained for reference purposes that is otherwise publicly
available; or
(e) Cabinet notebooks.
As shown, the definition of a document as provided in section 4(1) of the FOI
Act specifically excludes material that is maintained for reference purposes
and is otherwise publicly available from the definition of a document of an
agency.
I note that the Information Commissioner has specifically indictated in the FOI
Guidelines at 2.32, that
‘material maintained for reference purposes that is
otherwise publicly available (such as library reference material) and Cabinet
notebooks are not ‘documents’.’
3
I have therefore concluded that your request is for material that is specifically
excluded from the definition of a
document of the agency and therefore falls
outside of the scope of the FOI Act.
On the basis of the above I
affirm the decision of the primary decision maker.
Review rights
I provide you with the following information as required by section 26 of the FOI
Act.
If you are dissatisfied with my decision you may within 60 days after the day on
which you have been notified of this decision, apply in writing to the Office of
the Australian Information Commissioner (OAIC) for a review of my decision
under section 54N of the FOI Act. You may contact the OAIC by post at GPO
Box 5218 Sydney NSW 2001, by email at xxxxx@xxxx.xxx.xx or by telephone
on 1300 363 992.
Right to complain
You may lodge a complaint with the OAIC in relation to the conduct of ASIC
in the handling of this request. You may contact the OAIC as described above.
Yours faithfully,
Justin Frank
(Authorised decision-maker pursuant to sub-section 23(1) of the FOI Act)