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
Tel: +61 1300 935 075
Fax: +61 1300 729 000
www.asic.gov.au
Phil ip Sweeney
By email: foi+request-6566-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference:
FOI 148-2020
1 September 2020
Dear Mr Sweeney
Freedom of Information Request No. 148-2020
Acknowledgement of Request
I refer to your request dated 3 August 2020 under the
Freedom of Information Act 1982
(
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 fol owing:
“The document I seek is a copy of a determination of the Tribunal that made a
ruling on my “payout” or final average salary {FAS} as al eged by Mr Day in his
letter of 5 September 2018.”
I am the authorised decision-maker for the purposes of section 23 of the FOI Act and
this letter gives notice of my decision.
Decision and reasons for the decision
In your request dated 3 August 2020, you provide a series of assertions of opinion and
general commentary relating to your previous dealings with ASIC. I do not consider any
of these statements as relevant to the determination of your request. This type of
information is not required under the FOI Act and impedes on ASIC’s processing of your
request efficiently. Please see the Office of the Information Commissioner’s
how to
make an FOI request webpage for further information.
I have taken the fol owing material into account in making my decision:
• the FOI Act (specifical y section 24A);
• the functional responsibilities of ASIC and the Superannuation Complaints
Tribunal (
SCT);
• the guidelines (
FOI Guidelines) issued by the Office of the Australian Information
Commissioner (
OAIC) under section 93A of the FOI Act; and
• the terms of your request.
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The reasons for my decision are set out below.
I have conducted a search in response to your request and have found no documents
falling within the scope of your request were identified. As a result, your request is
refused in line with paragraph 24A(1)(b)(i ) of the FOI Act, which provides:
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 if:
(a) al 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.
The right of access under section 11 of the FOI Act is to a ‘document of an agency.’
This is defined in the section 4 of the FOI Act as:
“a document is
a 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; or
(b) in order to comply with section 6C, the
agency has taken
contractual measures to ensure that it receives the
document.”
The subject matter of the document you are seeking does not fall within the specific
functional responsibilities of ASIC. A document that could fall within the scope of your
request is not a document created by ASIC and is not in the possession of ASIC. Section
6C of the FOI Act is not relevant to this document. As your request is in relation to your
complaint to the SCT regarding your payout or final average salary, this falls more
appropriately with the SCT’s remit.
Therefore, as the subject matter of your request does not fall within the functional
responsibilities of ASIC, your request has been refused pursuant to section 24A(1)(b)(i )
of the FOI Act.
It is open to you to apply under the FOI Act directly to the SCT for documents in relation
to your complaint to the SCT. Details of how to lodge an FOI request with the SCT can
be found here:
https://sct.gov.au/pages/legislation/making-an-application-under-
the-foi-act
Review rights
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this
decision, apply in writing to ASIC for an internal review of my decision under section
54B of the FOI Act. This review is an independent process conducted by a Senior
Freedom of Information Officer at ASIC. This request should be addressed to me or
to the Senior Manager, Freedom of Information, GPO Box 9827, Brisbane QLD 4001
or by email to
xxxxxxxxxx@xxxx.xxx.xx.
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2. 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
xxxxxxxxx@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 set out above.
If you have any questions, please contact me a
t xxxxxxx.xxxx@xxxx.xxx.xx.
Yours sincerely,
Krystal Fung
(Authorised decision maker pursuant to subsection 23(1) of the FOI Act)
For the Australian Securities and Investments Commission
