Our ref: FOI-2022-10035
6 April 2022
Emailed to: email@example.com
I refer to your email dated 12 March 2022 in which you requested access to certain documents under
the Freedom of Information Act 1982
(the FOI Act). Your request was framed in the fol owing way:
‘…any documents in the possession of the Office of the Commonwealth
Ombudsman that show that consideration of the number of capped SES positions
in an agency should ever be a relevant consideration when evaluating the
classification for a group of duties to be performed in an Agency…’
This letter constitutes notice of my decision on your request for access. I am authorised to make
decisions on behalf of our Office under s 23 of the FOI Act.
We have searched our records for any documents we may hold which fal within the scope of your
request. Our searches did not identify any relevant documents.
Subsection 24A(1) of the FOI Act permits refusal of a request for access to a document where all
reasonable steps have been taken to find the requested document or documents and the agency or
Minister is satisfied that the documents do not exist. Having regard to the outcome of our searches
for any documents relevant to your request, I have decided to refuse your request under subsection
24A(1) of the FOI Act.
Under s 54 of the FOI Act, you may apply in writing to our Office for an internal review of my
decision. The internal review application must be made within 30 days of the date on which you were
notified of my decision.
Where possible, please attach reasons for why you believe review of the decision is necessary. The
internal review will be carried out by another Ombudsman officer within 30 days.
Review by the Australian Information Commissioner
Under s 54L of the FOI Act, 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 fol owing ways:
online at https://www.oaic.gov.au/freedom-of-information/reviews-and-
via email to firstname.lastname@example.org
by overland mail to GPO Box 5218 SYDNEY NSW 2001
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go to https://www.oaic.gov.au/freedom-of-
Complaints to the Information Commissioner
You may complain to the Information Commissioner about action taken by the Ombudsman in
relation to your FOI request.
While there is no particular form required to make a complaint, the complaint should be in writing
and set out the reasons for why you are dissatisfied with the way in which your request was
processed. It should also identify the Ombudsman’s Office as the agency about which you are
You may lodge your complaint in one of the fol owing ways
• online at:
• by overland mail to GPO Box 5218 SYDNEY NSW 2001
• by email to email@example.com.
If you require clarification of any of the matters discussed in this letter you should contact me using
the contact information set out at the foot of the first page of this letter.
Senior Legal Officer
ATTACHMENT A – Relevant FOI Act provisions
11A Access to documents on request
(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.
Other provisions of this Act are relevant to decisions about access to
documents, for example the fol owing:
(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
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.
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 conditional y 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 conditional y 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
in subsection 4(1).
24A Requests may be refused if documents cannot be found, do not exist or have not been
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.
54 Internal review—access refusal decision
(1) This section applies if an access refusal decision is made in relation to a request to an
agency for access to a document, other than a decision made personal y by the principal
officer of the agency or the responsible Minister.
(2) The applicant in relation to the request may apply under this Part for the review (the
) of the access refusal decision.
54L IC reviewable decisions—access refusal decisions
(1) An application may be made to the Information Commissioner for a review of a decision
covered by subsection (2).
(2) This subsection covers the fol owing decisions:
(a) an access refusal decision;
(b) a decision made by an agency on internal review of an access refusal decision (see
(c) a decision refusing to al ow a further period for making an application for internal
review of an access refusal decision (under section 54B).
Note 1: An application for the review of an access refusal decision made for the
purposes of paragraph (a) may be made regardless of whether the decision
was the subject of internal review.
Note 2: If no decision is made on internal review within 30 days, a decision to affirm
the original access refusal decision is taken to have been made (see
(3) The IC review application may be made by, or on behalf of, the person who made the
request to which the decision relates.