FOI 38581
Request consultation notice due to existence of two practical refusal
reasons under section 24AB of the Freedom of Information Act 1982
Practical Refusal Consultation Notice of Famida (Position Number 62122449),
Information Law Section, Legal Services and Audit Branch, Department of Veterans’
Affairs
Applicant:
Penny (Right to Know)
Decision date:
29 October 2020
FOI reference number:
FOI 38581 & FOI 38604
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Penny,
Freedom of Information Requests: FOI 38581 & 38604
Purpose of this notice
1. I refer to your two (2) FOI requests made on the Department of Veterans’ Affairs (
the
Department) seeking access to documents under the
Freedom of Information Act 1982 (
FOI
Act).
2. The purpose of this notice it to:
a. Advise you that the Department has decided to combine your two (2) requests into
one single request, in accordance with section 24(2) of the FOI Act. The
Department’s reference number for the combined requests is
38581; and
b. Consult with you under section 24AB of the FOI Act, on the basis that I intend to
refuse your request due to the existence of two practical refusal reasons as defined
by section 24AA of the FOI Act. In particular:
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Your request does not provide such information as is reasonably necessary to
enable the Department to identify some of the documents you are requesting
(section 24AA(1)(a) of the FOI Act); and
Processing your request, as best the Department can understand the terms, is
likely to result in a substantial and unreasonable diversion of the Department’s
resources from its other operations (section 24AA(1)(b) of the FOI Act).
Authority to make decision
3. I, Famida (Position Number 62212449), Information Access 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
Freedom of Information Act 1982 (
FOI Act).
Combining your Requests under Section 24(2) of the FOI Act
1. On 12 October 2020 you made a request for access to documents in the possession of the
Department (FOI 38561). Your request sought access to:
‘… May I please access the current Labour Hire Contract in place between DVA (WA office)
and Adecco Group.
May I please access the current Labour Hire Contract in place between DVA (WA office) and
Hudson.
May I please view the V2 funding arrangement, specifically in relation to the hiring of V2
classified staff in the Perth DVA office during 2020.
May I please access the number of Labour Hire staff working specifically for - "Perth DRCA
PI team" or "perth PI - DRCA processing team" on the fol owing dates:
01/03/2019
01/06/2019
01/10/2019
01/11/2019
01/01/2020
01/03/2020
01/10/2020
01/11/2020 (or day of request processing)
May I please have access to the costs of labour hire staff in the Perth DVA office for
September 2020.
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A list of projects and dates of commencement and completion which required the need for
labour hire workforce within the WA DVA office.
Any other reason/justification for the need to utilise labour hire staff in the Perth Office and
the number used from 01/01/2020 to present…’
2. The Department acknowledged this FOI request on 13 October 2020.
3. Subsequently on 13 October 2020 you made a second FOI request for access to documents in
the possession of the Department (FOI 38604). This request sought access to:
‘In making this request I refer to the document "commonwealth contract terms" specifically
C.C.13 Specified Personnel paragraph 2.
I request any policy, regulation or guide which references to "commonwealth contract
terms" within the Department of Veterans' Affairs.
Any correspondence being email, Skype or telephone transcripts at the Perth office of the
department of Veteran affairs between senior personal, including aps 6 and above workers,
and external correspondence with labour hire companies ie. Adecco, Hudson in which
C.C.13 Specified Personnel of the commonwealth contract terms have been a basis for the
communication in regards labour hire employee.
This would include any correspondence which may not directly refer to the Commonwealth
contract terms but is written with the intent of executing rights as the "customer",
specifically C. C. 13 PARAGRAPH 2 and the replacement of specified personal.
minutes/correspondence/policy/procedure executed by DVA having reference to, one or
more of the below terms:
Commonwealth contract terms
C. C. 13
(b) is not a fit and proper person…’
4. The Department acknowledged this FOI request on 14 October 2020 and asked you to consider
revising the scope of your request, because the Department considered your request to be
voluminous and unclear in parts.
5. Following the Department’s informal consultation email, on 21 October 2020, you agreed to
amend the scope of your FOI request 38604 as follows:
‘
Any correspondence being email, Skype or telephone transcripts at the Perth office of the
department of Veteran affairs between senior personal, including aps 6 and above workers
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internally as wel as external correspondence with labour hire companies contracted by the
DVA WA office ie. Adecco, Hudson in the last 10 months.
Also, the current/retired policies and procedure (in place over the last 12 months) in
relation to requesting Labour hire staff be replaced.
Costs of training new staff engaged in anyway by DVA WA office in the last 12 months.
The WHS current DVA policy in regards to leave requirements for all staff, specifically labour
hire personal not having access to leave entitlements, which could increase risk in regards
to a safe and healthy work place.
The financial reports/records in regards to DVA engaging in contracts with labour hire
services under a goods or services agreement for the last 12 months and the last financial
year.’
6. In accordance with section 24(2) of the FOI Act, the Department may treat two or more
requests as a single request if:
a) the requests relate to the same document or documents; or
b) the requests relate to documents, the subject matter of which is substantial y the
same.
7. Paragraph 3.123 of the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI ACT (
FOI Guidelines), notes that the most common circumstances that
requests wil be combined includes where multiple requests are made by a single applicant.
8. On 27 October 2020 the Department confirmed with you that you had made both requests
through the website Right to Know, under the first name Penny. You also noted that the
requests could be combined.
9. Your FOI requests seek access to documents relating to labour hire arrangements within the
Department’s Perth WA Office and the Department’s commercial dealings with Adecco Group
and Hudson Recruitment. As your two requests overlap and relate to a substantial y similar
subject matter, the Department has decided to combine these requests pursuant to section
24(2) of the FOI Act.
10. Your FOI requests will be actioned by the Department under the reference number FOI 38581.
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11. The terms of your revised and combined request reads as follows:
‘… May I please access the current Labour Hire Contract in place between DVA (WA office)
and Adecco Group.
May I please access the current Labour Hire Contract in place between DVA (WA office) and
Hudson.
May I please view the V2 funding arrangement, specifically in relation to the hiring of V2
classified staff in the Perth DVA office during 2020.
May I please access the number of Labour Hire staff working specifically for - "Perth DRCA
PI team" or "perth PI - DRCA processing team" on the fol owing dates:
01/03/2019
01/06/2019
01/10/2019
01/11/2019
01/01/2020
01/03/2020
01/10/2020
01/11/2020 (or day of request processing)
May I please have access to the costs of labour hire staff in the Perth DVA office for
September 2020.
A list of projects and dates of commencement and completion which required the need for
labour hire workforce within the WA DVA office.
Any other reason/justification for the need to utilise labour hire staff in the Perth Office and
the number used from 01/01/2020 to present…
Any correspondence being email, Skype or telephone transcripts at the Perth office of the
department of Veteran affairs between senior personal, including aps 6 and above workers
internally as wel as external correspondence with labour hire companies contracted by the
DVA WA office ie. Adecco, Hudson in the last 10 months.
Also, the current/retired policies and procedure (in place over the last 12 months) in relation
to requesting Labour hire staff be replaced.
Costs of training new staff engaged in anyway by DVA WA office in the last 12 months.
The WHS current DVA policy in regards to leave requirements for all staff, specifically labour
hire personal not having access to leave entitlements, which could increase risk in regards
to a safe and healthy work place.
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The financial reports/records in regards to DVA engaging in contracts with labour hire
services under a goods or services agreement for the last 12 months and the last financial
year.’
Power to refuse a request
4. Section 24 of the FOI Act provides that if the Department is satisfied that a practical refusal
reason exists in relation to a request, the Department must undertake a consultation
process with you, and if, after that consultation process, the Department remains satisfied
that the practical refusal reason still exists, the Department may refuse to give you access to
the documents subject to the request.
5. However, before I make a decision to refuse your request you have an opportunity to revise
your request to remove the practical refusal reasons. This is called a ‘request consultation
process’. You have 14 days to respond to this notice in one of the ways set out below. As
mentioned below, you can request more time to consider and respond to this notice. Please
let me know if you would like additional time to respond.
When does a practical refusal reason exist (section 24AA of the FOI Act)
6. The practical refusal reasons applicable to your request are that:
a. Your request does not provide such information as is reasonably necessary to enable
the Department to identify some of the documents you are requesting (section
24AA(1)(a) of the FOI Act); and
b. Processing your request, as best the Department can understand the terms, is likely to
result in a substantial and unreasonable diversion of the Department’s resources from
its other operations (section 24AA(1)(b) of the FOI Act).
7. Under section 24AA(2) of the FOI Act, the Department must have regard to the resources
that would have to be used for:
• identifying, locating or col ating the documents within the filing system of the
agency;
• deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document (including
resources that would have to be used for examining the document or consulting
with any person or body in relation to the request);
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• making a copy or an edited copy, of the document; and
• notifying any interim or final decision on the request.
8. Further, the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (
FOI Guidelines) identify matters that may be relevant when deciding whether
processing the request will unreasonably divert an agency’s resources from its other
functions. These include:
• the staffing resources available to the agency for FOI processing;
• the impact that processing a request may have on other work in the agency,
including FOI processing;
• whether an applicant has cooperated in framing a request to reduce the processing
workload;
• whether there is a significant public interest in the documents requested; and
• other steps taken by an agency or minister to publish information of the kind
requested by an applicant.
9. I consider that al of the above factors have a bearing on your request. The reasons why a
practical refusal reasons exists in relation to your request are set out below.
Why I intend to refuse your request
Identification of documents
10. Section 24AA(1)(b) of the FOI Act provides that a practical refusal reason exists in relation to
a request for a document if the request does not satisfy section 15(2)(b) of the FOI Act. This
section says that a request must provide such information concerning the requested
documents as is reasonably necessary to enable a responsible officer of the agency to
identify those documents.
11. I consider that the scope of your request is framed too broadly and in such a way that the
Department is unable to sufficiently or confidently identify the full extent of documents
capture by your request. This is because your request broadly seeks access to various suites
of documents including policy material, procurement and resourcing information and
internal correspondence. Further I do not consider that your request sufficiently identifies
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the specific kinds, types or dates of the documents that you are seeking access to. It is also
unclear if your request is made for any and all documents falling within these broad terms,
or whether instead you are requesting relevant material that relates to a specific event or
decision of the Department.
12. As far as I can identify the terms of your request as it currently stands, I have consulted with
relevantly identified business areas. They have advised that your request would require a
more narrowed and defined scope of request prior to undertaking a document retrieval
exercise. At present there is difficulty understanding the true extent of documents that you
are requesting and whether your request stems from or relates to a specific event, or
whether you have intended to request a very broader scope of material. This confusion
arises from the parts of your request seeking access to broader policy documents such as
your request for ‘
any policy, regulation or guide which references to "commonwealth
contract terms" within the Department of Veterans' Affairs’ or your request for the ‘
Costs of
training new staff engaged in anyway by DVA WA office in the last 12 months’ together with
the parts of your request which appear to relate to a specific event, such as ‘
the number of
Labour Hire staff working specifically for - "Perth DRCA PI team" or "perth PI - DRCA
processing team" on the fol owing dates….’.
13. Without further clarification, your request as it currently stands, does not enable the
Department to confidently identify all relevant business areas and to undertake reasonable
and effective searches of the Department’s records.
Request is substantial
14. Section 24AA(1)(a) of the FOI Act provides that a practical refusal reason exists in relation to
a request for a documents, if the work involved in processing the request would
substantial y and unreasonably divert the resources of the department from its other
operations.
15. Your combined request is made of twelve (12) different parts and requests access to a broad
and extensive scope of documents, falling across policy, employment, procurement and
statistic analysis areas of the Department.
16. As noted above, to determine the extent and scope of your request, I have undertaken an
initial consultation process with relevantly identified business areas. Following this
consultation, I understand that, to the extent that the Department can identify the terms of
your request, your request would likely capture a significant number of documents and
involve an extensive search and retrieval process across a number of different Departmental
areas.
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17. Additional y, in the absence of further guidance and clarification to the questions of scope
noted above, the Department considers that a significant number of storage locations and
documents would need to be reviewed to identify and produce documents fal ing within
scope of your request. Parts of your request would also require the extraction of
Department data and, where appropriate the creation of documents in accordance with
section 17 of the FOI Act.
18. Fol owing these initial enquiries and in consideration of the time already spent by a number
of the Department’s business areas in reviewing and considering the terms of your request, I
estimate that a minimum of 100 hours of processing time would be required to respond to
your request. The reasons for this are as follows:
a. You have requested access to a broad, and largely undefined, scope of documents;
b. You have not included relevant date periods or other sufficient identifying
information to assist the Department in identifying the documents you are
requesting;
c. Searches will need to be undertaken across multiple business areas of the
Department;
d. Parts of your request require the extraction, review and manipulation of data and
the consideration of whether a document can be created to meet the terms of your
request;
e. Relevant business areas have advised on the complexities and substantial amount
of work required to finalise your FOI request as it currently stands. In particular, the
relevant business areas have advised that without further clarification or definition
of the scope, the search time for your FOI requests would be substantial,
specifically:
i. One relevant business area advised that searches in relation FOI 38604
alone would take a number of days to complete and would need to be
actioned across several different areas of the Department; and
ii. Another relevant business areas that it would take approximately 60 hours
to search and retrieve documents in relation to only one out of the seven (7)
parts of FOI 38581.
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f. Due to the broad and undefined nature of your FOI request as it currently stands,
the relevant business areas are unable to provide an accurate estimate of the
number of documents or pages of material fal ing within the scope of your request.
g. As part of the FOI decision making process, the relevant business areas would need
to review and advise the relevant FOI decision maker on the sensitivities contained
within these documents. I consider that that the requested documents wil require
the consideration of exemption under the FOI Act. At an absolute minimum, I
consider that the FOI officer will have to have regard to sections 22 (irrelevant
material), 47, 47G, 47C (deliberative material), 47E (operations of an agency) and
section 47F (personal privacy) of the FOI Act;
h. It is likely that the FOI Officer would have to organise and engage in a number of
third party consultations under sections 27 and 27A of the FOI Act in relation to
third party business and personal information; and
i. The FOI officer wil then be required to take time to draft a decision on access in
respect of the requested material, including the preparation of a document bundle
and a statement of reasons.
19. Taking these factors into account, I have concluded the request as it currently stands is
substantial and that processing your request would constitute a substantial and
unreasonable diversion of the Department’s resources.
Request is unreasonable
20. I have also considered whether the processing of your request would constitute an
unreasonable diversion of the Department’s resources. I have decided that the minimum
processing time of 100 hours is, at face value, an unreasonable burden for FOI requests.
Specifically, I have taken the fol owing factors into consideration:
a. The Department’s need to process multiple FOI requests from multiple applicants
at any given time, and the impact that processing your request would have on the
Department’s ability to respond to other FOI applicants. Specifically, the
Department’s Information Law Team would be required to divert a substantial
amount of staff resources to process your request, meaning that less resources
were available for its other functions (including the processing of other applicant’s
FOI requests);
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b. The current staffing and resources constraints experienced by the Department’s
Information Law team; and
c. The relevant business areas needs to undertake their designated duties in addition
to the processing of your request. The relevant business areas have advised that
the work required to col ate and review the documents fal ing within scope of your
request would substantial y affect their business as usual work and would divert a
significant amount of their time and resources.
21. Specifically, the Department wishes to draw your attention to the current pressures it is
facing in the relation to the processing of its FOI requests. The Department is currently
managing both the impact of COVID-19 on different business areas and significant resourcing
pressures being experienced by both the Department’s Information Law Team and the
National Information Access Processing Team.
22. As the Department focuses its efforts on managing the impact of COVID-19 on its critical
services and employees, other non-critical services may not be delivered within expected
timeframes. During this time, business areas that would ordinarily have capacity to
undertake searches and assist in the processing of FOI requests have not always been readily
available to provide that assistance.
23. Additionally, the Department’s Information Law team and National Information Access
Processing Teams process a high volume of Information Access related requests every day
and are regularly the third highest recipient of FOI requests across the Commonwealth.
These workload demands are impacting on the manner and timeframe in which the
Department can process FOI requests. This increased workload and resourcing constraints
also means that broad and significant FOI requests such as yours, would place an even
greater burden on the Department’s resources at this time.
Ways you can revise the scope of your request
24. You now have an opportunity to revise your request so that the grounds for a practical
refusal are removed.
25. Revising your request can mean narrowing the scope of the request to make it more
manageable or explaining in more detail the documents you wish to access. For example, by
providing more specific information about exactly what documents you are interested in, we
wil be able to pinpoint the documents more quickly and avoid using excessive resources to
process documents you are not interested in.
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26. For example, you may want to consider:
a. providing further clarification about the information/specific documents you are
seeking access to;
b. restricting and clarifying the date range of documents sought;
c. narrowing the scope of documents to a more specific subject matter;
d. restricting your request for emails/documents sent to or received by specific
individuals and/or sections;
e. removing your request for skype messages;
f. removing your request for statistical data; and/or
g. reducing the number of different items you are requesting at the same.
27. Please note that even if you do modify your request, it is possible that a practical refusal
reason under section 24AA may stil exist and/or the Department may need further time to
process your revised request. This will depend on the revision you agree to make. As far as is
reasonably practicable, we are happy to provide you with further information to assist you in
revising your request so that it removes the practical refusal grounds.
Next steps
28. Before the end of the consultation period, which is
close of business 12 November 2020
(being 14 days from receiving this notice), you must do one of the following, in writing:
• withdraw the request;
• make a revised request; or
• indicate that you do not wish to revise the request.
29. During this period, you can ask me for help to revise your request. If you revise your request
in a way that adequately addresses the practical refusal grounds outlined above, we will
recommence processing it.
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30. If you indicate you do not wish to revise your request, the Department wil proceed to make
a decision on whether to refuse the request on the grounds that processing your request wil
result in a diversion of the Department’s resources under section 24(1) of the FOI Act.
31. If you do not respond in one of these ways within 14 days (by
COB 12 November 2020), the
request wil be taken to have been withdrawn pursuant to section 24AB(7) of the FOI Act.
32. If you need more time to respond, please contact the Information Law Section via the below
contacts, within the 14 day period to discuss your need for an extension of time.
Suspension of processing time
33. Please note under section 24AB(8) of the FOI Act, the time for processing your FOI request is
suspended from the day you receive this notice until the day you do one of the things listed
above.
34. An extract of the provisions of the FOI Act that are relevant to this notice are set out at
Schedule 1.
Contact us
35. 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,
Famida (Position Number 62212449)
Information Access Officer
Information Law Section
Legal Services and Audit Branch
29 October 2020
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FOI 38581
Schedule 1
Schedule of relevant provisions in the FOI Act
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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.
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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Power to refuse request--diversion of resources etc.
(1)
If an agency or Minister is satisfied, when dealing with a request for a document, that a
practical refusal reason exists in relation to the request (see section 24AA), the agency or
Minister:
(a)
must undertake a request consultation process (see section 24AB); and
(b)
if, after the request consultation process, the agency or Minister is satisfied that
the practical refusal reason still exists--the agency or Minister may refuse to give
access to the document in accordance with the request.
(2)
For the purposes of this section, the agency or Minister may treat 2 or more requests as a
single request if the agency or Minister is satisfied that:
(a)
the requests relate to the same document or documents; or
(b)
the requests relate to documents, the subject matter of which is substantial y the
same.
24AA When does a practical refusal reason exist?
(1)
For the purposes of section 24, a practical refusal reason exists in relation to a request for a
document if either (or both) of the fol owing applies:
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(a)
the work involved in processing the request:
(i)
in the case of an agency--would substantial y and unreasonably divert the
resources of the agency from its other operations; or
(ii) in the case of a Minister--would substantially and unreasonably interfere
with the performance of the Minister's functions;
(b)
the request does not satisfy the requirement in paragraph 15(2)(b) (identification
of documents).
(2)
Subject to subsection (3), but without limiting the matters to which the agency or Minister
may have regard, in deciding whether a practical refusal reason exists, the agency or
Minister must have regard to the resources that would have to be used for the following:
(a)
identifying, locating or collating the documents within the filing system of the
agency, or the office of the Minister;
(b)
deciding whether to grant, refuse or defer access to a document to which the
request relates, or to grant access to an edited copy of such a document, including
resources that would have to be used for:
(i)
examining the document; or
(ii)
consulting with any person or body in relation to the request;
(c)
making a copy, or an edited copy, of the document;
(d)
notifying any interim or final decision on the request.
(3)
In deciding whether a practical refusal reason exists, an agency or Minister must not have
regard to:
(a)
any reasons that the applicant gives for requesting access; or
(b)
the agency's or Minister's belief as to what the applicant's reasons are for
requesting access; or
(c)
any maximum amount, specified in the regulations, payable as a charge for
processing a request of that kind.
24AB What is a request consultation process?
Scope
(1)
This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2)
The agency or Minister must give the applicant a written notice stating the following:
(a)
an intention to refuse access to a document in accordance with a request;
(b)
the practical refusal reason;
(c)
the name of an officer of the agency or member of staff of the Minister (the
contact person ) with whom the applicant may consult during a period;
(d)
details of how the applicant may contact the contact person;
(e)
that the period (the consultation period ) during which the applicant may consult
with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3)
If the applicant contacts the contact person during the consultation period in accordance
with the notice, the agency or Minister must take reasonable steps to assist the applicant
to revise the request so that the practical refusal reason no longer exists.
(4)
For the purposes of subsection (3), reasonable steps includes the fol owing:
(a)
giving the applicant a reasonable opportunity to consult with the contact person;
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(b)
providing the applicant with any information that would assist the applicant to
revise the request.
Extension of consultation period
(5)
The contact person may, with the applicant's agreement, extend the consultation period by
written notice to the applicant.
Outcome of request consultation process
(6)
The applicant must, before the end of the consultation period, do one of the fol owing, by
written notice to the agency or Minister:
(a)
withdraw the request;
(b)
make a revised request;
(c)
indicate that the applicant does not wish to revise the request.
(7)
The request is taken to have been withdrawn under subsection (6) at the end of the
consultation period if:
(a)
the applicant does not consult the contact person during the consultation period in
accordance with the notice; or
(b)
the applicant does not do one of the things mentioned in subsection (6) before the
end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8)
The period starting on the day an applicant is given a notice under subsection (2) and
ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c)
is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take al reasonable steps to notify an applicant of a
decision on the applicant's request within 30 days after the request is made.
No more than one request consultation process required (9)
To avoid doubt, this section only obliges the agency or Minister to undertake a request
consultation process once for any particular request.
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Document Outline