Our reference: FOI 2122-063
Decision date: 7 February 2022
Applicant name: Mr Trent Morrison-Francis
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Morrison-Francis,
Freedom of Information request FOI 2122-063
I refer to your correspondence received by the Department of Social Services
(the Department) on 7 January 2022, in which you requested access to documents under
the Commonwealth
Freedom of Information Act 1982 (FOI Act).
Decision
The Department has undertaken a reasonable search of its records and has not been able
to identify documents relevant to your request.
For this reason, I have made a decision to refuse your request under section 24A of the
FOI Act, as the documents do not exist.
Authority to make this decision
I 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
On 7 January 2022 you made a request for access to documents in the possession of the
Department. Your request was framed in the following terms:
‘…any documents that your department holds in relation to any "Exemptions" or "Wavers"
as defined by the Webster Dictionary or social y accepted definitions of the words in the
country of Australia to comply with any legislation that your office has powers, authority or
manages under legislation for its management as a superannuation provider.
To remove any doubt we are asking for all schemes that Commonwealth Superannuation
Corporation manages including
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CSS
ABN: 19 415 776 361
RSE: R1004649
DFRDB
ABN: 39 798 362 763
Military Super
ABN: 50 925 523 120
RSE: R1000306
ADF Super
ABN: 90 302 247 344
RSE R1077063
ADF Cover
ABN: 64 250 674 722
The period for the request relates to all documents created on or after the 01st January
2017 by either your office and or the Commonwealth Superannuation Corporation (where
practicable if your office is not the creator of the documents).’ On 14 January 2022 the Department contacted you by email to acknowledge receipt of
your request. The Department noted that your request had been sent twice and that it
would proceed to treat the two enquiries as a single request. In addition, the Department
sought clarification regarding the scope of your request, noting that the Department is not
a superannuation provider and does not manage the Commonwealth Superannuation
Corporation.
No response was received from you, therefore the Department proceeded with the existing
terms of your scope.
As no extensions of time have been applied to process your request, a decision is due to
you on Monday 7 February 2022.
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.
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Material taken into account
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.
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 relevant business areas of the Department.
A full extract of all FOI Act provisions used to make my decision are provided in
Appendix 1.
Reasons for decision
Requests may be refused if documents cannot be found, do not exist or have not
been received (section 24A)
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 t
he document; and
(b)
t
he agency o
r Minister is satisfied that t
he document:
(i) is in the
agency's o
r Minister's possession but cannot be found; or
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(ii) does not exist.
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.
The Department has undertaken searches in its relevant electronic records management
system, however, despite the reasonable searches undertaken, the Department has been
unable to identify documents relevant to your request.
The Department is not a superannuation provider, nor does it manage the Commonwealth
Superannuation Corporation, or any of the schemes managed by the Commonwealth
Superannuation Corporation.
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
Information about your rights to seek a review of this decision are at
Attachment A.
Should you have any enquiries concerning this matter please do not hesitate to contact the
FOI team by email at xxx@xxx.xxx.xx.
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Yours sincerely,
A. McKenzie
Director (A/g)
Freedom of Information Section
Government and Executive Services Branch
7 February 2022
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Appendix 1
Schedule of relevant provisions used in making this decision
Excerpts from the
Freedom of Information Act 1982 (Cth)
3
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 legal y 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:
(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
conditional y 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 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 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 Appendix 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) A
n agency o
r Minister may refus
e a request for access t
o a document if:
(a) all reasonable steps have been taken to find t
he document; and
(b) t
he agency o
r Minister is satisfied that t
he document:
(i) is in t
he agency's or
Minister's possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) A
n agency may refus
e a request for access t
o a document if:
(a) in order to comply wit
h section 6C, the
agency has taken contractual measures to
ensure that it receives the
document; and
(b) t
he agency has not received t
he document; and
(c) t
he agency has taken al reasonable steps to receive t
he 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 shal 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 conditional y 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 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
(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 (i ); including (where applicable) particulars
of the manner in which an application for internal review (Part VI)
and IC review (Part VI ) 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).
Document Outline
