FOI 37926
Statement of reasons made under the Freedom of Information Act 1982
Decision and reason for decision of Molly (Position Number 62213164), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Jason (Right to Know)
Decision date:
24 September 2020
FOI reference number:
FOI 37926
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Jason (Right to Know)
Freedom of Information Request: FOI 37926
1.
The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has not been able to identify a document relevant to your request.
2.
For this reason, I have made a decision to refuse your request under section 24A of the
Freedom of Information Act 1982 (
FOI Act), as the document does not exist. I have further
refused your request subject to section 17 of the FOI Act, on the basis that the requested
document is unable to be created via the use of a computer system that is ordinarily
available to the Department.
Authority to make this decision
3.
I, Molly (Position Number 62213164), Legal Officer, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
Summary
4.
On 20 August 2020, you made a request for access to documents in the possession of the
Department. Your request was made in the fol owing terms:
‘…copy of the "FOI Manual" (which may be known under another name) under Part II of the
Freedom of Information Act….’
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5.
Fol owing informal consultation, on 23 August 2020 you revised your request as fol ows:
‘…PDF copy of the complete FOI Manual, that provides FOI team with guidance on the steps
for handling FOI requests…’
6.
On 25 August 2020 during the course of informal consultation, the Department advised you
that:
‘The Department can proceed to process your request on the clarified scope below.
However, in the interest of transparency, we advise that the Department does not currently
have a complete FOI Manual at this point in time. Some valuable and comprehensive
resources and guidance materials the Department refers to regularly in managing its FOI
work are publicly available. Of importance, are the useful FOI resource materials and FOI
Guidelines issued by the Office of the Australian Information Commissioner at
https://www.oaic.gov.au/freedom-of-information/ and also the Department of the Prime
Minister and Cabinet's FOI Handbook which can be found at
https://www.ag.gov.au/sites/default/files/2020-03/FOI%20Guidance%20Notes%20-
%20PDF.pdf.‘
7.
As no extensions of time have been applied to process your request, a decision on your
request was due by 21 September 2020. The Department did intend to notify this decision
on 21 September 2020, however was unfortunately able to finalise a decision within this
time period. We apologise for this inconvenience.
8.
The Department will notify the OAIC of this error and request a small extension of time
under section 15AC of the FOI Act, so that the decision is not considered deemed refused.
This extension of time wil not impact on the decision issued to you, or your review rights.
Material taken into account
9.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
refuse access to the requested documents fol ows.
10. I have taken the following material into account in making my decision:
• the terms of your request and as revised;
• the types of information and documents that are in the Department’s possession;
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• searches undertaken by relevant business areas of the Department;
• consultation with relevant Department officers in relation to your request;
• the availability of information relevant to your request, insofar as it determines the
practicality and ease in which the Department can create a document under section 17
of the FOI Act;
• Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth;
− Section 11B Public interest exemption – factors
− Section 15 Request for Access
− Section 17 Requests involving use of computers etc. (e.g. request for the
Department to create a document)
− Section 24A Requests may be refused if documents cannot be found, do not
exist or have not been received
• the guidelines issued by the Office of the Australian Information Commissioner (
OAIC)
under section 93A of the FOI Act.
11. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
12. I have decided to refuse your request in accordance with the fol owing provision in the
FOI Act:
Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)
13. Section 24A(1) of the FOI Act provides that 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 i
n the agency's or
Minister's possession but cannot be found; or
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(ii) does not exist.
14. I am satisfied that all reasonable steps have been taken to find information relevant to your
request, having regard to:
• the terms of your request and as revised;
• the subject matter of the documents;
• the Department’s current and past file management and record practices; and
• the individuals and areas within the Department who may be able to assist with the
location of the information you seek access to.
15. Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request. I am satisfied that the requested document does not
exist. A description of the searches undertaken to locate the documents which you are
seeking to access is at
Schedule 1.
Your rights of review
16. If you are dissatisfied with my decision, you may apply for Internal Review or request the
Office of the Australian Information Commissioner (
OAIC) to review my decision. We
encourage you to seek Internal Review as a first step as it may provide a more rapid
resolution of your concerns.
Internal review
17. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The Internal Review wil be carried out by another officer within
30 days.
18. You can make your application for internal review in one of the following ways:
Post: Legal Services and Assurance Branch, Department of Veterans’ Affairs
GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx
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OAIC review
19. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by the OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online: www.oaic.gov.au Post: Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile: (02) 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
In person: Level 3, 175 Pitt Street, Sydney NSW 2000
20. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
http://oaic.gov.au/freedom-of-information/foi-resources/freedom-
of-information-fact-sheets/foi-factsheet-12-your-review-rights
Contact us
21. If you wish to discuss this decision, please do not hesitate to contact me using the fol owing
details:
Post: Legal Services and Assurance Branch, Department of Veterans’ Affairs
GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely
Molly (Position Number 62213164)
Legal Officer
Information Law Section
Legal Services and Audit Branch
24 September 2020
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FOI 37926
Schedule 1
Summary of document searches
The Department conducted the fol owing searches to identify files and documents that fal within
scope of your request (
relevant documents).
I consulted with the fol owing relevant business area of the Department in relation to your
request:
• The Legal Services and Audit Branch (
the Branch)
The Branch conducted searches for the documents described in your request. Searches were
undertaken of both the Department’s electronic and physical file management systems. At the
conclusion of these searches, no documents matching the description of your request were
located.
As communicated to you in the Department’s email on 25 August 2020, the Branch advised the
Department does not currently have a complete FOI Manual at this point in time. The Department
refers to publicly available FOI resources and guidance materials including the FOI resource
materials and FOI Guidelines issued by the Office of the Australian Information Commissioner at
https://www.oaic.gov.au/freedom-of-information/ and also the Department of the Prime Minister
and Cabinet's FOI Handbook which can be found at
https://www.ag.gov.au/sites/default/files/2020-03/FOI%20Guidance%20Notes%20-%20PDF.pdf. The Department considers that this approach ensures that the Department maintains reference to
the most up to date and accurate FOI guidance material.
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FOI 37926
Schedule 2
Schedule of relevant provisions in the FOI Act
3 Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11 Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response
to a request (see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on
balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of
Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the
document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
17 Requests involving use of computers etc
(1)
Where:
(a)
a request (including a
request in relation to which
a practical refusal reason exists)
is made in accordance with the requirements o
f subsection 15(2) to an
agency;
(b)
It appears from the
request that the desire of th
e applicant is for information that
is not available in discrete form in writte
n documents of the
agency; and
(ba)
it does not appear from the
request that th
e applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
th
e 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 th
e agency;
th
e 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 th
e agency had such a
document in its possession.
(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.
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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
24A
Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) An
agency or Minister may refuse
a request for access to
a document if:
(a) all reasonable steps have been taken to find th
e document; and
(b) th
e agency or Minister is satisfied that th
e document:
(i) is in the
agency's or
Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An
agency may refuse
a request for access to
a document if:
(a) in order to comply with
section 6C, th
e agency has taken contractual measures to
ensure that it receives th
e document; and
(b) th
e agency has not received th
e document; and
(c) th
e agency has taken all reasonable steps to receive the
document in accordance with
those contractual measures.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note: Access must general y be given to a conditional y exempt document unless it would be
contrary to the public interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
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(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
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Document Outline
