12 August 2021
Scott Chapman
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
ACMA file reference ACMA2021/376
Dear Scott
Request for access to documents under the Freedom of Information Act
1982
I refer to your Freedom of Information Act (
FOI Act) request dated and received
on 13 July 2021 in which you sought access to the “…document(s) that the
ACMA issued to [Vodafone, Telstra and Optus], to correct the performance and
conduct issues of the offending participants in the industry… [in reference to]
the non-compliance issue brought to the ACMA’s attention on 7 June 2021”.
I confirm that I am an authorised decision maker within the meaning of section
23 of the FOI Act.
On 21 July 2021, the ACMA wrote to you:
1. confirming receipt of your FOI request
2. advising that you may be liable to pay charges in accordance with
section 29 of the FOI Act, and
3. seeking confirmation about the scope of your request.
Your response dated 21 July 2021 confirmed that the ACMA understood the
scope of your request and the documents you are seeking.
You will see below that I have decided to refuse your FOI request on the basis
that there are no documents which fall within the scope of your request, as that
request can only cover documents that existed at the time you made the
request.
Material considered
I have taken the following material into account in making my decision on
access:
1. your request
2. the FOI Act, and
3. the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act.
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Decision on access
I have decided to refuse your request for documents identified in your FOI
request in accordance with subparagraph 24A(1)(b)(ii) of the FOI Act.
Subsection 24A(1) of the FOI Act relevantly provides:
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 the Minister’s possession but cannot be
found, or
ii.
does not exist.
I have decided to refuse your request on the basis that no documents falling
within the scope of your request existed as at the date of your request (13 July
2021).
Reasons for my decision
The findings on material questions of fact and the material on which those
findings were based are set out below.
I have conducted searches of the ACMA’s electronic file management systems
for any documents that the ACMA gave to Vodafone, Telstra, and Optus to
correct the performance and conduct issues brought to the ACMA’s attention on
7 June 2021 in relation to a public consultation for a mobile phone base station
located at 33-45 Centreway, Mount Waverley, Victoria.
I have also undertaken consultation with staff in the Monitoring and Compliance
section of the ACMA who confirmed that no such documents had been created
at the time of your request which would fall within the scope of your request.
Having consulted with relevant staff and undertaken a review of the material
held by the ACMA on or before the date of your FOI request of 13 July 2021, I
am satisfied that all reasonable steps have been taken to find any documents
that might fall within the scope of your request.
Document provided outside the scope of the FOI request
I note that on 5 August 2021, the ACMA wrote to you to finalise your complaint
about Optus’ proposal to install a mobile phone base station on the rooftop of
the AGL Building at Pinewood Shopping Centre Centreway Mount Waverly
Victoria 3149.
In that correspondence, we provided you with a copy of a letter we sent to
Optus also dated 5 August 2021.
We consider that the letter given to Optus would have fallen within the scope of
your FOI request had that document existed at the time you made the FOI
request. However, as it did not, we have instead chosen to provide it to you as
part of our response to you on the outcome of your complaint.
Liability to pay changes
I can confirm that no charges are payable in relation to your request.
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Your rights of review
Please find enclosed the ACMA’s Information Sheet entitled Freedom of
Information Act 1982 – Rights of Review.
Please contact me by telephone on (03) 9963 6782 or by email at
xxxxxxx.xxxxxxx@xxxx.xxx.xx if you have any questions.
Yours sincerely
Melissa Moroney
Manager, Monitoring and Compliance
Phone 03 9963 6782
Email
xxxxxxx.xxxxxxx@xxxx.xxx.xx
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