FOI 43595 Statement of Reasons.pdf

FOI 43595

Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Famida (Position Number 62212449), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs

Applicant:

Penny (Right to Know)

Decision date:

29 July 2021

FOI reference number:
FOI 43595

Sent by email:                            xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Penny,
Freedom of Information Request: FOI 43595
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 cannot be found and likely do
not exist.

Authority to make this 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).

Summary

4.  On 31 May 2021, you made a request for access to documents in the possession of the
Department. Your request sought access to:

“…May I please view a copy of the procurement documentation/out to market/tender  in
regards to seeking call centre staff services within the department (in the last 3 months).

May I please have a copy of the call centre staff services duties/description/role information
outlining the service requirements of call centre staff (in the last 3 months). .”

Informal Consultations
5.  On 7 June 2021, the Department engaged with you in an informal consultation regarding the
scope of your Freedom of Information (FOI) request. In this correspondence, it was noted
that the tendering and labour hire processes of the Department are undertaken separately
by each individual business area. We clarified that the job descriptions for these positions
would also differ depending on the needs of the different Departmental business areas. Due
to this, we sought to clarify the following aspects of your request:

a.  Whether your FOI request is specific to one or more Departmental business area(s); or

b.  Whether you are requesting information relevant to higher-level procurement and
labour hire processes.

6.  I note that a response to this consultation was not provided to the Department.

7.  On 10 June 2021, the Department sent you a follow-up email to seek clarification on your
request in regards to our prior correspondence of 7 June 2021. I note that a response was
not provided.

Consultations with Internal Business Areas
8.  The Information Law Team considered it appropriate to consult with all divisions across the
Department in relation to your request, as you did not clarify which business area you were
seeking information about. These internal consultations are outlined in Schedule 1 of this
decision.

Extension of Time and Charges

9.  As an extension of time was applied to process your request in accordance with section
15AB of the FOI Act, a decision on your request is due by 30 July 2021.

10.  I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the Freedom of Information (Charges) Regulations 2019.

Material taken into account

11.  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.

12.  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. I also considered section 24A of the FOI Act (Requests may be refused
if documents cannot be found, do not exist or have not been received) relevant to my
decision;

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines); and

  searches undertaken by all divisions of the Department.

13.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

14.  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 in the agency's or Minister's possession but cannot be found; or

(ii)  does not exist.

15.  I am satisfied that al  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.

16.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request. A description of the searches undertaken to locate the
documents which you are seeking to access is at Schedule 1.

17.  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.

Your rights of review

18.  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

19.  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.

20.  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

21.  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

22.  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

23.  If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Law, Legal Services and Audit Branch
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Phone: 1800 838 372
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

Yours sincerely,

Famida (Position Number 62212449)
Information Access Officer
Information Law Section
Legal Services and Audit Branch

29 July 2021

FOI 43595
Schedule 1

Summary of document searches

The Department conducted the fol owing searches to identify documents that would fall within scope of
your request (relevant documents).

The Department undertook an initial consultation process across all divisions of the Department. The
purpose of these consultations were to ascertain the business areas of the Department best placed to assist
in conducting reasonable searches in response to your request. We sought to ascertain the following:

1)  Which divisions and business areas of the Department use call center staff services; and

2)  Which divisions and business areas of the Department had gone to tender or had undertaken
labour-hire processes for cal  center staff services in the last three months.

The outcome of this consultation process indicated that call centre staff services are used by business areas
in two divisions of the Department. This includes the Client Engagement and Support Services Division
(CESS) and the Mental Health and Wellbeing Services Review Division (MHWSRD).

However, it was also concluded that no divisions in the Department had undertaken tendering or labour
hire processes for call centre staff in the three months prior to the receipt of your FOI request on 31 May
2021. As a result of these findings, we understood that the Department does not hold any documents
which would fal  within the scope of your request.

In order to verify this, the Department conducted further consultations with the fol owing business areas of
the Department in relation to your request:

•  CESS
•  MHWSRD
•  The People Services Branch (PSB)

The relevant business areas conducted searches for the documents described in your request on the
Department’s electronic and physical file management systems. At the conclusion of these searches, no
documents matching the scope of your request could be located.

Specifically, the relevant business areas advised that they had searched the Department’s databases,
divisional inboxes and individual mailboxes of relevant staff members. Despite these efforts, neither CESS,
MHWSRD nor PSB were able identify or locate any documents relevant to the scope of your request.

I am satisfied that reasonable searches have been completed in response to this FOI request, and that no
relevant documents could be identified. For this reason, I am refusing your request under sections
24A(1)(b)(i) and 24A(1)(b)(ii) of the FOI Act, on the basis that the documents you are requesting cannot be
found and likely do not exist.

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FOI 43595
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).

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
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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.
(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 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.

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 the 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 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
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(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.

(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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