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
Phil ip Sweeney
Fax: +61 1300 729 000
By email: foi+request-7293-
www.asic.gov.au
xxxxxxxx@xxxxxxxxxxx.xxx.xx cc:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference: FOI 071-2021
8 June 2021
Dear Mr Sweeney
Freedom of Information Request No. 071-2021
Notice to Identify Documents under Section 24AB of the Act
I refer to your request received by this office dated 2 May 2021, seeking
access to documents under the
Freedom of Information Act 1982 (
FOI Act)
and your revised requested received on 2 June 2021 (
Request 1) which was in
response to my section 24AB noticed dated 19 May 2021.
Request 1 – dated 2 May 2021 (revised 2 June 2021)
Section 15(2)(b) of the FOI Act
I am writing to advise you that Request 1 stil does not satisfy the requirement
set out in section 15(2)(b) of the FOI Act which states that a request for access
to a document must ‘
provide such information concerning the document as
is reasonably necessary to enable a responsible officer of an agency… to
identify it’. As section 15(2)(b) has not been met ASIC may, in accordance
with section 24(1)(b) of the Act, refuse to process your application.
In its current form, it would be my intention to refuse access to the documents
sought in Request 1 on this practical refusal ground. However, to assist you to
make a valid request I make the following comments.
Request 1 seeks access to “copies of any correspondence from David Locke
(or AFCA) to ASIC dated from 26 March 2021 to the present.”
The use of the term ‘any correspondence’ has the effect of expanding the
scope of your request to encompass all and any correspondence received
by ASIC from Mr David Locke, AFCA or any its employees during the specified
timeframe whether the relevant document is specifically in relation to a
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particular entity, matter or individual or merely administrative or trivial. This
interpretation renders Request 1 hopelessly broad by capturing all
correspondence received by ASIC or any ASIC staff member no matter how
trivial the relevant correspondence may be.
For the reasons stated above, the Request in its current form does not
adequately identify the documents sought and it would therefore be my
intention to refuse your request given that a practical refusal reason exists
within the meaning of section 24AA(1)(b) of the FOI Act.
Section 24AA(1)(a) FOI Act
My preliminary assessment is that, subject to clarification of the matters raised
above, the scope of Request 1 is extremely broad and identifying documents
that are responsive the current interpretation of your request as revised on 2
June 2021 would substantially and unreasonably divert ASIC’s resources from
its other operations for the purposes of section 24AA(1)(a) of the FOI Act.
Taken at its broadest interpretation, Request 1 would require us to undertake
searches of every ASIC staff members’ inboxes, internal databases and
workflow systems to locate any correspondence from Mr David Locke, AFCA
and any of its employees in relation to any subject matter during the specified
timeframe. As you are aware, ASIC has an oversight role of AFCA. As such, it is
likely that there are numerous day to day communications between
members of ASIC and AFCA staff. To conduct a search across such a large
number of individuals would be excessively burdensome and, in my view,
would unreasonably interfere with ASIC’s day to day activities.
In view of the above, I consider that the work involved in conducting
searches to identify the material that is responsive to your request in its current
form would substantially and unreasonably divert ASIC’s resources from its
other operations. Accordingly, I consider that a practical refusal reason exists
within the meaning of section 24AA(1)(a)(i) of the FOI Act in relation to your
request.
The Office of the Australian Information Commissioner recommends that
agencies examine a representative sample of 10-15% of documents to assess
the complexity of the material against whether the work involved in
processing the request would constitute a substantial and unreasonable
diversion of resources from the agency’s other operations. In this instance, I
consider that the difficulty in conducting searches that are responsive to the
terms of your request further prevents us from quantifying the effort required
to process your request in its current form.
However, I can further advise that any request that captures information
relating to the affairs of any third parties would require extensive consultation
with these parties under sections 27 and 27A of the FOI Act and that this
consultation is likely to substantially add to the burden of processing your
request.
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Request 2 – dated 2 June 2021
I refer to your request dated 2 June 2021 (
Request 2) 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). I
note that Request 2 is a duplicate of your original request received on 2 May
2021. As such, I make the same comments I made in the section 24AB notice
dated 19 May 2021 (ref: FOI 071-2021).
Section 15(2)(b) of the FOI Act
I advise that Request 2 does not satisfy the requirement set out in section
15(2)(b) of the FOI Act.
Request 2 seeks access to “
any correspondence from David Locke (or AFCA)
to ASIC that would confirm that David Locke has complied with his duty to
report systemic misconduct to ASIC”. I am unable to identify or characterise a
document(s) that may “confirm that David Locke has complied with his duty
to report systemic misconduct to ASIC”. It does not specifically identify the
document(s) you are seeking and is subjective in nature. In its current form, I
find it difficult to identify the document(s) you are seeking given the broad
and ambiguous nature of your request.
Your request is extremely broad in nature and encompasses any
correspondence ASIC would have received from AFCA, its employees or
David Locke without a specified timeframe.
For the reasons stated above, the Request in its current form does not
adequately identify the documents sought and it would therefore be my
intention to refuse your request given that a practical refusal reason exists
within the meaning of section 24AA(1)(b) of the FOI Act.
You may also wish to consider withdrawing Request 2 as it is a duplicate of
your original request received on 2 May 2021.
Section 24(2) of the FOI Act
The two FOI requests to which this notice relates are described in the
attached schedule. The requests seek access to documents that relate to the
below
A. Correspondence from David Locke, AFCA or AFCA employees.
Section 24(2) of the FOI Act states that in deciding whether a practical refusal
reason exists, two or more requests may be treated as a single request if the
requests relate to the same document or documents, or the subject matter is
substantially the same for the requests.
In my view the two FOI requests described in the attached schedule may be
treated as a single request because the subject matter of the requests is the
same or substantially the same.

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I am satisfied that the two requests relate to subject matter of which is
substantially the same for all requests. Accordingly, I have, for the purposes of
this notice, treated the two requests described in the attached schedule as a
single request. As ASIC received the first request on 2 May 2021, ASIC wil treat
the Request as being received on 2 May 2021.
Request consultation process
The purpose of this letter is to provide you with an opportunity to revise your
request so that the practical refusal reasons no longer exist before a final
decision is made. Should you wish to submit a revised request please take into
consideration the issues raised in this notice to ensure that they are
addressed.
Timeframe
The statutory timeframe for notifying an applicant of a decision on a request
for access under the FOI Act is 30 days from the day the agency receives the
request. Please note that in accordance with section 24AB(8) of the FOI Act,
the time for processing your request is suspended from the day that you
receive this letter, and resumes on the day after ASIC receives from you one
of the following:
• written notification that you wish to withdraw the request;
• a revised written request addressing the matters raised above; or
• written notification that you do not wish to revise your request.
If you choose to do one of the following actions above mentioned, you must
do so
within 14 days of the date of this letter (the
consultation period). If I
have not heard from you by the end of the consultation period, your request
wil be taken to be withdrawn in accordance with section 24AB(7) of the FOI
Act.
Should you wish to provide written notification to withdraw the request this
must also be done within the consultation period. A written notification of
withdrawal is effective at the time of the withdrawal. Section 24AB(7) provides
that a withdrawal is effective at the end of the consultation period if the
applicant does not take any action.
During the consultation period you may wish to seek assistance in reframing
your request. If you have any questions or wish to discuss, please contact me
at 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
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Schedule of Phillip Sweeney requests 2 May 2021 to 2 June 2021
Request Date of Request Documents sought in Request
No.
1.
2 May 2021
“I am seeking copies of any correspondence
(revised 2 June
from David Locke (or AFCA) to ASIC dated
2021)
from 26 March 2021 to the present.”
2.
2 June 2021
“The Treasury is conducting a Review of the
Australian Financial Complaints Authority and
the terms of reference include "1.2 Are AFCA's
processes for the identification and
appropriate response to systemic issues arising
from complaints effective"?
Evidence has been provided to David Locke
of a systemic issue that relates to a majority of
National Australia Bank's Australian Staff who
were unlawfully transferred from a top-10
performing "not-for-profit" staff superannuation
fund into the poor performing "for-profit" MLC
Super Fund.
This transfer was in contravention of the
governing rules of the fund and in
contravention of superannuation laws.
David Locke has a duty to report this systemic
misconduct to ASIC (as well as APRA).
The document (or documents I seek) are
copies of any correspondence from David
Locke (or AFCA) to ASIC that would confirm
that David Locke has complied with his duty
to report systemic misconduct to ASIC.”