ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2021/317
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Trav S
DECISION BY: Petra Gartmann
Assistant Secretary
Legal Policy Branch
Trav S
By email to:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email of 14 December 2021 in which you made a request (the
FOI request)
under the
Freedom of Information Act 1982 (the
FOI Act) to the Department of the Prime
Minister and Cabinet (the
Department) in the following terms:
1. Please refer to the Federal Court decision in ‘Taggart and Civil Aviation Authority
(FOI) [2016] AATA 327’. As you will understand the Court ruled that the non-
substantive information in emails such as the subject line, address block, salutation,
classification, closing words and signature block are not exempt under section 42 of
the FOI Act.
2. Despite being made aware of the Court's ruling your department has failed to
recognise, or act upon, the ruling in 3 recent internal review requests.
3. Acting in accordance with section (2)(b) of the FOI Act we respectfully request
access to the document authorising your department to ignore Federal Court rulings
related to access to documents in accordance with the FOI Act.
4. Disclosure will promote Australia's representative democracy by contributing
towards increased public participation in government processes, with a view to
promoting better-informed decision-making.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Decision
I have decided to refuse your request under section 24A(1) of the FOI Act, on the basis that
the Department has taken all reasonable steps to locate the documents you have requested,
and those documents do not exist.
In making this decision, I have had regard to the following:
• the terms of your request;
• my own knowledge of the subject matter of your request
• the outcome of searches;
• the FOI Act; and
• the Guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
FOI Guidelines).
Reasons
Subsection 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.
The FOI Guidelines provides that
‘reasonable steps’ would amount to include all appropriate
or suitable search actions that relate to the circumstances surrounding the documents
requested, this is defined to include:
3.88 The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’
in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by
reason, not extravagant or excessive, moderate and of such an amount, size or number as is
judged to be appropriate or suitable to the circumstances or purpose.
Based on my own knowledge of the subject matter, and searches undertaken relevant to the
scope of the request, I am satisfied that all reasonable steps have been taken to identify any
documents relevant to the FOI request, and that the documents requested do not exist.
I have therefore decided to refuse the request under subsection 24A(1) of the FOI Act.
Processing and access charges
I have decided not to impose processing charges in respect of the applicant’s request.
Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
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Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions
in relation to this decision. Making a complaint about the way the Department has handled an
FOI request is a separate process to seeking review of the Department’s decision.
Further information about how to make a complaint is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-
complaint/. Yours sincerely
Petra Gartmann
Assistant Secretary
Legal Policy Branch
10 January 2022
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Document Outline
