LEX 50869

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reasons for decision of Sara (Position Number 62214764),
Information Access Officer, Information Access Unit, Client Access and Rehabilitation Branch,
Department of Veterans’ Affairs

Applicant:

Mr Alan Ashmore

Decision date:

30 August 2022

FOI reference number:
LEX 50869

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Ashmore,
Freedom of Information Request: LEX 50869
Decision

1.  The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified one (1) document bundle relevant to your request.

2.  I have made a decision to grant full access to one (1) document bundle relevant to your
request.

3.  I have made a decision to refuse access to parts 1-4 of your request, for the time period
2015-2016, on the basis that documents do not exist.

4.  The document bundle that I have chosen to grant access to in part is set out in Schedule 1,
together with applicable exemption provisions. Where I have decided to grant access in part,
I have provided access to an edited copy of the document, modified by deletions in
accordance with section 22(2) of the Freedom of Information Act 1982 (Cth) (FOI Act).

Authority to make decision

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5.  I, Sara (Position Number 62214764), Information Access Officer, Information Access Unit,
Client Access and Rehabilitation Branch, 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

6.  On 18 July 2022, you made a request for access to documents in the possession of the
Department. Your request sought access to the fol owing information, which the
Department understood to be in relation to DVA fraud investigations (reference numbers
added):

‘…(1) Number of current cases on hand at year end.
(2) Number of cases referred to DPP and/or AFP.
(3) Number of convictions.
(4) Value of fraud recovered ($)…’

7.  On 25 July 2022, the Department acknowledged your request via email.

8.  As an extension of time was applied to process your request in accordance with section
15AA, a decision on your request is due by 16 September 2022.

9.  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.

Material taken into account

10.  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
grant partial access to the document fol ow.

11.  I have taken the following material into account in making my decision:

  the terms of your request on 18 July 2022;

  the types of information and documents that are in the Department’s possession;

  the content of the document that fal  within the scope of your request;

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  the availability of information relevant to your request, including the practicality and
time required in which the Department may create a document under section 17 of
the FOI Act;

  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 the following provision of the FOI Act relevant to my
decision:

-  Section 15  Request for Access
-  Section 17  Requests involving use of computers etc
-  Section 22   Access to edited copies with exempt or irrelevant material deleted

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).

12.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

13.  I have decided to grant full access to one (1) document bundle within the scope of your
request, subject to the fol owing exemptions in accordance with the FOI Act:

Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)

14.  The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.

15.  Some of the documents subject to your request contain irrelevant information.

16.  Where pages, or parts of pages, do not relate to your request for specific fraud statistics, I
have removed those pages, or parts of pages, as out of scope.

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17.  On this basis, I have prepared the documents for release by removing the irrelevant material
in accordance with section 22 of the FOI Act. The material that has been edited for release is
marked within the documents as wel  as at Schedule 1.

18.  I have decided to refuse access to parts 1-4 of your request, for the time period 2015-2016,
in accordance with the fol owing provision in the FOI Act:

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

1.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

a.  al  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.

2.  I am satisfied that al  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.

3.  Despite reasonable searches being undertaken, the Department has been unable to identify
documents relevant to your request for 2015-2016.

4.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A(1)(b)(i ) of the FOI Act, on the basis that documents
do not exist.
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Requests involving use of computers etc. (section 17)
5.  In making my decision to refuse this part of your request, I also considered the application of
section 17 of the FOI Act and whether a document could be created to meet the terms of
this part of your request.

6.  Subject to section 17(1)(c)(i), I have determined that the department is not in a position to
create a written document, via the use of a computer or other equipment that is ordinarily
available to the department for the purposes of retrieving or col ating stored information.

Access to documents

19.  The document bundle released to you in accordance with the FOI Act is enclosed.

Additional information

20.  In addition to the document bundle produced in response to this request, I have also
identified the fol owing publicly available material which may be of interest to your
enquiries. I note that this material is not classified as a document of the department for the
purposes of the FOI Act and therefore does not form part of this access decision:

a.  Annual Report 2020-21
https://www.transparency.gov.au/annual-reports/department-veterans-
affairs/reporting-year/2020-21
See “Management and accountability” > “Fraud prevention and control”

b.  Annual Report 2019-20
https://www.dva.gov.au/documents-and-publications/annual-reports
See Annual Report page 65 – “Fraud prevention and control”

c.  Annual Report 2018-19
https://www.dva.gov.au/documents-and-publications/annual-reports
See Annual Report page 86 – “Fraud prevention and control”

d.  Annual Report 2017-18
https://www.dva.gov.au/documents-and-publications/annual-reports
See Annual Report page 93-94 – “Fraud and noncompliance”

e.  Annual Report 2016-17
https://www.dva.gov.au/documents-and-publications/annual-reports
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See Annual Report page 136 – “Fraud and non-compliance”

f.  Annual Report 2015-16
https://www.dva.gov.au/documents-and-publications/annual-reports
See Annual Report page 115 – “Fraud and non-compliance statistics”

Information Publication Scheme

21.  The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.

22.  I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request wil  be published on the Department’s
FOI Disclosure Log which can be accessed at http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.

Your rights of review

23.  If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step to resolve any concerns you may have.

Internal review

24.  Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review wil  be carried out by another officer within 30
days.

25.  You can make your application for Internal Review in one of the fol owing ways:

Post:
Information Access Unit,
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

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OAIC review

26.  Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC 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:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx

27.  More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/

Contact us

28.  If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the fol owing details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

Yours sincerely,

Sara (Position Number 62214764)
Information Access Officer
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs

30 August 2022
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LEX 50869
Schedule 1

Schedule of documents

Applicant:

Mr Alan Ashmore

Decision date:

30 August 2022

FOI reference number:
LEX 50869

Document  Date of
Document description
Page
Decision  Exemption
reference  document
number
provision
1
Various  Document bundle: fraud statistics
1-8
Full access
s 22

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LEX 50869
Schedule 2

Schedule of relevant provisions in the FOI Act
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.

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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 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 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 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
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.

17
Requests involving use of computers etc
(1)
Where:
(a)
a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
10

(b)
It appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba)
it does not appear from the request that the applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
the agency could produce a written document containing the information in
discrete form by:
(i)
the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii)  the making of a transcript from a sound recording held in the agency;

the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if the agency had such a document in its possession.
(2)
An agency is not required to comply with subsection (1) if compliance would substantially
and unreasonably divert the resources of the agency from its other operations.

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Access to edited copies with exempt or irrelevant matter deleted
Scope

(1)
This section applies if:

(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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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 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.

24A  Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1)  An agency o r Minister may refuse a request for access to a document if:
  (a)  al 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.

Document not received as required by contract

(2)  An agency may refuse a request for access to a document if:
  (a)  in order to comply with section 6C, the agency has taken contractual measures to ensure
that it receives the document; and

(b)  the agency has not received the document; and

(c)  the agency has taken all reasonable steps to receive the 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 conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally 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;
12

(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 (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) 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).

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Document Outline