Our ref:
FOI20/118; CM20/6789
21 August 2020
Mr John Smith
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request FOI20/118 – Decision Letter
The purpose of this letter is to give you a decision about access to documents that you requested under the
Freedom of Information Act 1982 (the FOI Act).
Your Request
On 23 July 2020, you requested access to:
A document that contains:
1. the total number of labour hire staff procured throughout the APS, that are fulfil ing
functionally equivalent roles to actual APS employees throughout your department,
2. the amount spent on labour hire staff procured throughout your department, for the 19/20
financial year, and
3. the amount spent on labour hire staff procured throughout your department, for the 19/20
financial year; that are fulfil ing functionally equivalent roles to actual APS employees in your
department.
On 6 August 2020, the department acknowledged your request.
A decision in relation to your request is due on 22 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 Attorney-General’s Department (the department).
I have identified one document that falls within the scope of part two of your request. I did this by making
inquiries of staff likely to be able to identify relevant documents and arranging for comprehensive searches of
relevant departmental electronic and hard copy holdings.
I have identified no documents in the department’s possession which fall within parts one and three of the
scope of your request.
In making my decision regarding access to the relevant document falling within the scope of part two of your
request, I have taken the following material into account:
the terms of your request
the content of the one document identified as falling within the scope of your request
the provisions of the FOI Act, and
the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the Guidelines).
In addition to the above, and in making my decision that there are no documents in the department’s
possession falling within parts one and three of the scope of your request, I have had regard to 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).
I have decided to grant access to the one document identified as falling within the scope of part 2 of your
request. I have also decided to refuse access to parts one and three of your request pursuant to section 24A of
the FOI Act.
Additional Information
Your review rights under the FOI Act are set out at
Attachment A to this letter.
The Schedule of Documents at
Attachment B sets out brief information about the document within the scope
of part two of your request and my decision in relation to access to that document.
The Statement of Reasons at
Attachment C sets out the reasons for my decision to refuse access to parts one
and three of your request.
The documents to which I have decided to grant full or partial access under the FOI Act are at
Attachment D.
Questions about this decision
If you wish to discuss this decision, the FOI case officer for this matter is xxxxx, 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
Attachment B:
Schedule of Documents
Attachment C:
Statement of Reasons
Attachment D:
Documents
Freedom of Information request FOI20/118 – Decision Letter
Page 2 of 6
Attachment A - FOI Review Rights
If you are dissatisfied with the decision of the Attorney-General’s Department (the department), you may
apply for internal review or Information Commissioner review of the decision.
The department encourages applicants to consider seeking internal review as a first step as it may provide a
more rapid resolution of your concerns.
Internal review
Under section 54 of the
Freedom of Information Act 1982 (FOI Act), applications for internal review must be
made in writing within 30 days of the date of the decision letter. Applications for internal review must be
lodged by email or post.
email:
xxx@xx.xxx.xx
post:
Freedom of Information and Privacy Section
Strategy and Governance Branch
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
An officer of the department other than the officer who made the original decision will complete the internal
review within 30 days of receipt of your request.
Providing reasons you believe internal review of the decision is necessary will facilitate the completion of the
internal review.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review this
decision. An application for review by the Information Commissioner must be made in writing within 60 days
of the date of the decision letter, and can be lodged in one of the fol owing ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 5218, SYDNEY NSW 2001
in person: Level 3, 175 Pitt Street, SYDNEY NSW 2000
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website.
Go to http://www.oaic.gov.au/freedom-of-information/foi-reviews.
FOI Review RIghts
Page 3 of 6
Attachment C – Statement of Reasons – FOI20/118
This document, when read in conjunction with the decision letter above, provides information about
the reasons I have decided to refuse access to parts one and three of your request under the
Freedom of Information Act 1982 (FOI Act).
Section 24A - Requests may be refused if documents cannot be found, do not exist or have not
been received
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 section 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.
Staff employed in the department’s Human Resources Branch have relevantly advised that it is not
possible to create a document containing the information described at parts one and three of your
request using Aurion, the departmental system used to maintain employee information, report on
human resources information and maintain organisational structures for the department. This is
because Aurion does not differentiate between people described as contractors who meet the
definition of ‘labour hire staff… that are fulfilling functionally equivalent roles to actual APS
employees’ 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 documents for parts one and three of your request, but that this would require the
examination of the circumstances of every person categorised as a 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
‘labour hire staff… that are fulfilling functionally equivalent roles to actual APS employees’. Subject
to responses received from various business areas, this would further require that a departmental
Statement of reasons – FOI20/118
p 5 of 6
officer amend Aurion data so that it could be produced into discrete documents containing only the
information you requested to access at parts one and three of your request.
To determine whether the department is required by section 17 of the FOI Act to undertake the
steps above to produce the documents 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 document. 1
Having regard to the above, I am satisfied that the department is not able to produce the documents
you have requested for parts one and three of your request, 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 to parts one and three of your request pursuant to section 24A of the FOI Act.
1 [2013] FCAFC 67 [44].
Statement of reasons – FOI20/118
p 6 of 6
