FOI 45175 Statement of Reasons.pdf

FOI 45175
Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Christine (Position Number 62212985), Information
Law Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Mr Alan Ashmore
Decision date:
27 September 2021
FOI reference number: FOI 45175
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Ashmore
Freedom of Information Request: FOI 45175
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, Christine (Position Number 62212985), 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 13 August 2021, you made a request for access to documents in the possession of the
Veterans’ Review Board (VRB). Your request sought access to:
“…the number of appeals finalized by the VRB and the number that were varied in full or in
part for the following periods:
 1 January 2020 to 30 June 2020,
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  1 July 2020 to 31 December 2020, and
  1 January 2021 to 30 June 2021.”

5.
On 25 August 2021, the Department received a transfer of your FOI request from VRB, in
accordance with section 16(1) of the FOI Act.

6.
On 7 September 2021, the Department sought a 14-day extension of time from you to
process your request. On the same day, you agreed to this extension.

7.
As an extension of time was applied to process your request in accordance with section
15AA of the FOI Act, a decision on your request is due by 27 September 2021.

8.
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

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 documents follow.

10.  I have taken the following material into account in making my decision:

  the terms of your request;

  the section 16(1) transfer of your request from the VRB;

  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 relevant business areas of the Department.

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11.  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)

12.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

(a)
all 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.

13.  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.

14.  I consulted with the Department’s Reviews and Appeals Section of the Client Benefits
Division in relation to your request. The Department relies on the VRB Annual Report for
data concerning VRB appeals. The Review and Appeals Section acknowledged that the
Department has previously provided 6-month periodic data on VRB decisions, however this
is no longer a Departmental practice, and the Department does not hold the data for the
time periods specified in your request.

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15.  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.

16.  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

17.  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

18.  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.

19.  You can make your application for Internal Review in one of the following 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

20.  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 following 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
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21.  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

22.  If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the following 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,

Christine (Position Number 62212985)
Legal Officer
Information Law Section
Legal Services and Audit Branch

27 September 2021
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FOI 45175
Schedule 1

Summary of document searches

The Department conducted the following searches to identify files and documents that fall within scope of
your request (“relevant documents”).

The Review and Appeals Section of the Client Benefits Division undertook a thorough search for all relevant
documents in the possession of the Department. The documents do not exist after reasonable searches.

The Review and Appeals Section acknowledged that the Department has previously provided 6-month
periodic data on VRB decisions, however this is no longer a Departmental practice, and the Department
does not hold the data for the time periods specified in your request.

The Department relies on the VRB Annual Report for data concerning VRB appeals.
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FOI 45175
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 following:

(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
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).

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 conditionally exempt.
Note 2:
A conditionally 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 conditionally 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)  all 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 all 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 generally be given to a conditionally 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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