LEX 48652
Internal review decision made under the Freedom of Information Act 1982
Internal review decision and reasons for decision of Joanna (Position Number 62329542),
Information Access Officer, Information Access Unit, Client Access Rehabilitation Branch,
Department of Veterans’ Affairs
Applicant:
Ms
Verity Pane
Date of primary decision:
21 March 2022
Primary decision reference number:
LEX 47867
Internal review decision date:
22 April 2022
Internal review reference number:
LEX 48652
Sent by email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pane,
Freedom of Information Internal Review Request: LEX 48652
1.
The purpose of this letter is to give you a decision about your request for internal review under the
Freedom of Information Act 1982 (
FOI Act).
2.
I have made a decision to affirm the original decision.
Authority to make this decision
3.
I, Joanna (Position Number 62329542), Information Access Officer, Information Access Unit, am an
officer authorised by the Secretary of the Department of Veterans’ Affairs (
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 to review decisions about access to documents under section 54C.
Summary
4. On 9 February 2022, you made a request for access to documents in the possession of the department.
Your request sought access to:
I seek copy of the Secretary's Estimates briefings (often referred to as the Estimates book) for the
Estimates appearances in June 2021 and October 2021 These are the documents the Department
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prepares for the Secretary to read and take with her, to refer to if necessary, during her Estimates
appearances.
5. On 3 March 2022, the department gave you notice under section 24AB(2) of the FOI Act of its intention
to refuse access because a practical refusal reason existed in relation to your request, as it was too
voluminous and complex to process. The department gave you an opportunity to consult and invited you
to revise the scope of your request to remove the practical refusal reason.
6. On 11 March 2022, you responded to the consultation notice, noting that you did not wish to reduce the
scope of your application. You also stated the following:
As to the other issues you raise about requiring extensive third party consultations with individuals
litigating against DVA, along with a ridiculous claim as also requiring separate consultations with
every family member of theirs (not party to the litigation), that would be privileged material you
would claim exemption on anyway.
As I didn't request identifying personal information of private individuals, including litigants in legal
action against DVA, that would be an agreed variation of irrelevant material - Names and other
identifying information of private individuals, other than corporate or public officials carrying out
their official functions, is exempt under s 22.
7. A decision was due to be made by 21 March 2022, taking into account time the department has to make
a decision when a consultation process is carried out under section 24AB of the FOI Act.
8. On 21 March 2022, you were provided with a decision which refused your request under section 24(1)
of the FOI Act because a practical refusal reason was found to exist under section 24AA of the FOI Act.
9. On 23 March 2022, you requested an internal review of the primary decision. However, in requesting an
internal review, you quoted the incorrect LEX number. The department was not in a position to confirm
which matter your application for internal review was made in relation to, until receipt of
correspondence from you on 13 April 2022. By that correspondence, the department confirmed that
you were requesting an internal review of LEX 47867. Notwithstanding the delay, the department has
processed your internal review on the basis that it was received on 23 March 2022.
10. As no extensions of time have been applied to process this internal review, a decision on your request is
due by 22 April 2022.
11. I have decided not to impose a charge in relation to this request, in accordance with regulation 3(1) of
the
Freedom of Information (Charges) Regulations 1982.
Decision
12.
I have made a decision to affirm the original decision made by Information Access Officer, Andrew
(Position Number 62329538) to refuse your application under section 24(1) of the FOI Act, on the basis
that a practical refusal reasons exists.
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13.
I have based my decision on the following documents:
a. Completed search minute in relation to LEX 47867 (dated 25 February 2022),
b. Request Consultation Notice due to existence of a practical refusal in relation to LEX 47867 (dated
3 March 2022), and
c. Decision and Statement of Reasons in relation to LEX 47867 (dated 21 March 2022).
14.
Provisions of the FOI Act that I have relied upon to decide this internal review decision are outlined in
Schedule 1.
Remarks on primary decision
15.
On 21 March 2022, Information Access Officer, Andrew (Position Number), made the decision to refuse
your request under section 24(1) of the FOI Act because a practical refusal reason existed under section
24AA of the FOI Act. He was satisfied that the work involved in processing your request would
substantially and unreasonably divert the resources of the department from its other operations as
specified in section 24AA(1)(a)(i) of the FOI Act.
16.
In conducting this internal review, I have reviewed the search requests and consultations undertaken
with the relevant business unit. I have reviewed the search minute completed by the business unit,
which outlines that 135 documents (equally to approximately 1,381 pages) as being within the scope
of the application. The search minute provided by the business unit also highlights the sensitivity of
the documents, and that consultation would be required with each business area or owner of each
brief.
17.
A Senior Executive Staff member of the relevant business unit has certified that reasonable searches
were conducted to locate the documents within the scope of your request, and I accept this
certification.
18.
Based on this initial enquiry with the business unit and sampling some of the documents within scope,
the deciding officer estimated approximately 11.25 hours would be required to undertake an initial
review of the documents.
19.
However, once an initial review of the documents was completed, given the sensitivities of the
documents requested, this meant that for the department to make a full and proper decision of the
documents, extensive consultation would be required with each business unit involved in each
particular document. It is understood there would have been eleven (
11) business units.
20.
When undertaking internal consultations with a business unit, time is required to work with the
business unit to fully understand the context of each document and determine whether certain
information should be released. A period of 7 days is usually given to internal business units to consider
information that may be released and provide information to the Information Access Unit to assist us
in making a decision as to whether documents should be released or not. I note that the original
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deciding officer estimated the consultation process would take approximately 44 hours (being 4 hours
per business unit). I believe this estimate to be conservative, as in practice business units can
sometimes take longer to respond to our requests for consultations, particularly when sensitive
information is involved.
21.
Only after the context of a document is fully understood can the FOI decision maker determine
whether any exemptions under the FOI Act are applicable to information within the documents or the
documents as a whole. Therefore, time would need to be taken to consider the responses of business
units, and whether information can be removed. The original FOI decision maker, after having looked
through various documents within the scope of the application, noted that the following provisions “at
a minimum” were likely to be considered in a decision for your request:
a. Section 22 – Access to edited copies with exempt or irrelevant matter deleted
b. Section 42 – Legal Professional Privilege
c. Section 45 – Documents containing material obtained in confidence
d. Section 47C – Public interest conditional exemptions – deliberative processes
e. Section 47E – Public interest conditional exemptions – certain operations of agencies
f. Section 47H – Public interest conditional exemptions – research.
22.
Considering whether an exemption applies, whether conditional or not, involves an evaluation process
for each specific piece of information, and whether a certain test can be met for such an exemption to
apply. Taking into consideration the fact that the deciding officer would have had to consider the
responses of 11 internal business units and then go on to review the 1,381 pages of information, whilst
considering whether the various tests in relation to the above provisions apply, this would have been
a significant task. The original deciding officer estimated such a task would be likely to take more than
100 hours of processing time.
23.
The deciding officer also identified that personal information of third-party individual’s information
was contained in some of the documents within the scope of the application. In its consultation notice
to you on 3 March 2022, the department estimated it would take approximately 50 hours to consult
such individuals. However, as noted above, you advised the department on 11 March 2022 that you
agreed to the removal of personal information of “
private individuals, including litigants in legal action
against DVA” under section 22 of the FOI Act. I accept that this does reduce the time required to
consult with third party individual. However, time would still need to be taken to remove any
identifying information of the third parties pursuant to section 22 of the FOI Act.
24.
In assessing the resources of the department, the original deciding officer considered the following:
a. The staffing resources available to the department, and
b. The impact that processing the request may have on other work in the department, including
FOI processing.
25.
The Information Access Unit team is made up of 37 staff members, who are a mix of full time and part
time employees. Approximately 7 of those team members are responsible for the administrative role
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of registering applications and responding to general enquiries, leaving the remaining 30 staff
members responsible for managing cases and making FOI decisions. Each staff member has
approximately 15 to 20 matters which they are responsible for, each which have a statutory timeframe
that needs to be met. If an unreasonable amount of time were to be spent processing one application,
this would impact the department’s response to other applicants.
26.
I have also considered the public interest in the documents within the scope of the request, as the FOI
decision maker did at paragraph 22 of his original decision. I agree that the disclosure of the documents
may promote the objects of the FOI Act, inform debate on matters of public importance and promote
effective oversight of public expenditure. However, this does not outweight the unreasonableness of
the department processing the application, in addition to the fact that it is not clear what information
would be released (if released) at this point, nor how the release would prejudice the flow of the
department (given the context of the document).
27.
After reviewing the determinations of the original deciding officer, I am satisfied the correct and
preferable decision was made to refuse your request under section 24(1) of the FOI Act because a
practical refusal reason still exists under section 24AA of the FOI Act.
Your rights of review
28.
Under section 54L of the FOI Act, if you are dissatisfied with my decision, you may apply to the
Australian Information Commissioner to review my decision. An application for review by the
Information Commissioner 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.
29.
More information about your review rights under the FOI Act is published by the Office of the
Australian Information Commissioner:
Reviews and complaints - Home (oaic.gov.au).
Contacts
30.
If you wish to discuss this decision, please do not hesitate to contact the Information Access Unit using
the following details:
Post: Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
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Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Joanna (Position Number 62329542)
Information Access Officer
Information Access Unit
22 April 2022
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LEX 48652
Schedule 1
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:
(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).
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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).
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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
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(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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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 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.
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Power to refuse request--diversion of resources etc.
(1) If an
agency or Minister is satisfied, when dealing with a
request fo
r a document, that
a
practical refusal reason exists in relation to the
request (see
section 24AA), th
e agency or
Minister:
(a) must undertake a
request consultation process (see
section 24AB); and
(b) if, after the
request consultation process, th
e agency or Minister is satisfied that
the
practical refusal reason still exists--the
agency or Minister may refuse to give access to
the
document in accordance with
the request.
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(2) For the purposes of this section, the
agency or Minister may treat 2 or more
requests as a
single
request if the agency or Minister is satisfied that:
(a) the
requests relate to the same
document or
documents; or
(b) the
requests relate t
o documents, the subject matter of which is substantially the same.
54C
Internal review—decision on internal review
Scope (1) This section applies if an application for internal review of an access refusal decision or an
access grant decision (the original decision) is made in accordance with this Part.
Decision (2) The agency must, as soon as practicable, arrange for a person (other than the person who made
the original decision) to review the decision.
(3) The person must make a fresh decision on behalf of the agency within 30 days after the day on
which the application was received by, or on behalf of, the agency.
Notice of decision (4) Section 26 extends to a decision made under this section
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