FOI 38006
Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Mol y (Position Number 62213164), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Julie (Right to Know)
Decision date:
2 October 2020
FOI reference number:
FOI 38006
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie
Freedom of Information Request: FOI 38006
Decision
1. The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has not been able to identify documents 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 documents do not exist.
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 3 September 2020, you made a request for access to documents in the possession of the
Department. Your request was made in the following terms:
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‘…I wish to obtain access to official information held by the Department of Veterans' Affairs
under the Freedom of Information Act 1982. The official information sought is not available
in discrete form, in the written documents of the agency, therefore I request the agency to
produce a written document containing the information in discrete form by use of computer
to retrieve and collate the stored official information sought.
I request access to such a compiled document that provides the fol owing information in the
layout requested:
From a FOI decision here on Right to Know it appears the Information Law section of the
Department of Veterans' Affairs is made up of 9 positions, being an EL2 (position number
62209913), two EL1 (position numbers 62210326 & 62210022), two APS6 (position numbers
62210358 & 62214719), an APS5 (position number 62214547), an APS4 (position number
62210105), an APS 3 (position number 62214718), and a contractor (position number
62212962). It is possible there have been slight changes to the position establishment of
Information Law since, but this is likely to still be current.
In either case, for all positions within the Information Law section that were fil ed during the
period March to July inclusive, for 2020 and 2019, using the official records of duty (that is,
staff member was recorded as on duty, and was not on personal leave or sick leave, in the
Department's human management / pay systems), provide the cumulative number of
available staff days for the periods of scope:
Table...................March 2020 - July 2020..................March 2019 - July 2019 Available
Unavailable
Again, as stated, an available staff day is count of each work day (so excludes weekends and
public holidays) each fil ed position was available for duty (not on personal leave or sick
leave). For example, on one work day there are three fil ed positions and all three are
available for work, then the count for the day would be three (and if there were three fil ed
position but only two were available for work and one was on sick leave for that day, the
count for the day would be 2 available, 1 unavailable), and so on. Flexi-time is ignored, as it is
merely a transfer of days worked…’
5. As no extensions of time were applied to processing your request, a decision on your
request is due by 5 October 2020. I note that 5 October 2020 is a public holiday which
means this decision is due by 6 October 2020.
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Material taken into account
6. 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 documents follows.
7. I have taken the following material into account in making my decision:
the terms of your request;
the types of documents that are in the possession of the Department;
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 Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines); and
searches undertaken by relevant business areas of the Department
8. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
9. 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)
10. Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:
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(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 o
r Minister’s possession but cannot be found; or
(ii) does not exist.
11. 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;
• the subject matter of the documents;
• the current and past file management systems and the practice of orderly
destruction or removal of documents;
• the Department’s record management systems and 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.
12. Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request. I am satisfied that this is because 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.
13. For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A of the FOI Act.
Requests involving use of computers etc (section 17)
14. As I consider that the requested documents do not exist, I have also turned my mind as to
whether the Department could create a document in response to your request with regard
to section 17 of the FOI Act.
15. Section 17(1) provides that where:
(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 the
Department;
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(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 Department;
(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 Department 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 shal deal with the request as if it were a request for access to a written
document.
16. Additional y, section 17(2) of the FOI Act provides that the Department is not required to
comply with subsection 17(1) of the FOI Act if compliance would substantially and
unreasonably divert the resources of the Department from its other operations.
17. After consultation with the relevant business area of the Department, I consider that the
Department is unable to create a document in response to your request via the use of a
computer system that is ordinarily available to the Department. The relevant business area
advised that the creation of such a document would require the manual extraction and
manipulation of data, meaning that the Department is unable to produce a document in
response to your request at this time via the use of an ordinarily available computer system.
18. A description of the consultation that I undertook with the relevant business area and my
findings of fact in relation to the application of section 17 of the FOI Act are also provided at
Schedule 1.
19. For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A of the FOI Act, on the basis that the requested
documents do not exist. I have also decided that the Department cannot produce the
requested documents in accordance with section 17 of the FOI Act.
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Your rights of review
20. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) 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
21. 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 will be carried out by another officer within 30
days.
22. You can make your application for Internal Review in one of the fol owing ways:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
OAIC review
23. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by 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
24. 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
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Contact us
25. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Post:
Legal Services and Audit 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
2 October 2020
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FOI 38006
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 People Services Branch (the
Branch) in relation to your request.
The Branch undertook searches for documents meeting the description of your request in several
of the Department’s storage locations including personal emails, positional mailboxes, and various
interdepartmental information holding systems.
As a result of these searches, the Branch advised that documents relevant to your request could
not be located.
The Branch advised that would require manual data extraction and manipulation across both the
People Service Branch and the Legal Services and Audit Branch. Specifically, to produce the
records for APS staff alone the Department would be required to:
• Run multiple APS staffing occupancy and leave reports for the date periods listed in your
request.
• Crosscheck the names of each APS staff member captured by those reports with other
Departmental records.
• Analyse leave reports to work out which days APS staff were unavailable and produce a
calendar view of the requested date periods to take account of weekends and public
holidays.
Further the Branch advised that is unable to run reports on Contractors in the same was as is it
able to for APS employees. This means that multiple teams would be required to undertake a
manual review of contractor records to source and provided the requested information.
Ultimately requiring the production of a bespoke document.
Accordingly, I consider that the request document and is not available for creation via the use of a
computer system ordinarily available to the Department.
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FOI 38006
Schedule 2
Schedule of relevant provisions in the FOI Act
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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:
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(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
fol owing:
(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).
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 conditionaly 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).
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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, 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.
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Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for example, by
providing an electronic address to which notices may be sent by electronic
communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a current
telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the agency
or Minister.
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Requests involving use of computers etc
(1)
Where:
(a)
a request (including
a request in relation to whic
h 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 the
applicant is for information that is
not available in discrete form in writte
n documents of th
e agency; and
(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)
th
e agency could produce a writte
n 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 col ating 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 writte
n document
so produced and containing that information and, for that purpose, this Act applies as if the
agency had such
a document in its possession.
(2)
A
n agency is not required to comply with
subsection (1) if compliance would substantially and
unreasonably divert the resources of th
e agency from its other operations.
23 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.
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(see section 11A).
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 refus
e a request for access to a
document if:
(a) all reasonable steps have been taken to find th
e 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.
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, the
agency has taken contractual measures to ensure that it
receives th
e document; and
(b) the
agency has not received the
document; and
(c) the
agency has taken al reasonable steps to receive the
document in accordance with those
contractual measures.
26 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 shall:
(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 conditional y 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