8 September 2022
JH
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 22/07/01317-R1
File Number:
OBJ2022/20468
Dear JH
Freedom of Information Act 1982: internal review decision
I refer to correspondence received by the Department of Home Affairs (the Department)
on 2 August 2022, in which you requested an internal review of an access refusal decision
under section 54 of the
Freedom of Information Act 1982 (the FOI Act).
The decision under review is the Department’s original decision dated 1 August 2022, in
which the Department responded to the access request you made on 27 July 2022.
The Department has decided to
vary its original decision on your request. Further details
of the decision are provided at paragraphs 7 to 8 below.
1
Scope of original request received 27 July 2022
The scope of your original request was as follows:
Consistent with the Freedom of Information Act 1982, I request the incoming
government briefs provided from the Department to its respective Ministers since 21
May 2022.
I am not seeking drafts of the above documents.
2
Original decision on access dated 1 August 2022
Documents within scope
The Department identified the following four documents as falling within the scope of your
request:
the Incoming Government Brief delivered to the Minister for Home Affairs – 312 pages
the Incoming Government Brief delivered to the Minister for Immigration, Citizenship
and Multicultural Affairs – 197 pages
the Incoming Government Brief delivered to the Minister for Emergency Management
– 122 pages
the Australian Border Force (ABF) Incoming Government Brief – 34 pages.
Casselden Place, 2 Lonsdale Street, Melbourne
GPO Box 241, Melbourne VIC 3001 Telephone: 131 881 www.homeaffairs.gov.au
Original access decision
The Department’s original decision was to find that the documents within the scope of the
request have been published by the Department and are therefore publicly available. The
Department accordingly found that the FOI does not apply to these documents, by the
operation of section 4(1)(d) of the FOI Act.
3
Request for internal review received 2 August 2022
On 2 August 2022, you requested the Department review its access decision of 1 August
2022. The terms of your review request were as follows:
I am writing to request an internal review of Department of Home Affairs's handling
of my FOI request 'Incoming Government Briefs'.
My application has not had reasonable searches conducted by the decision maker
and the decision maker has not shown how they have considered whether the
redactions in the publicly available document are still relevant, particularly those
which rely on a public interest test.
I request that this decision be reviewed by another decision maker.
On 5 August 2022, the Department contacted you to clarify the scope of your review
request, in particular the nature of the documents you claimed the documents the
Department had failed to locate. The Department did not receive a response from you to
this correspondence.
4
Scope of internal review
I have considered your claims made in your request for internal review that the decision
maker had not shown that they had considered whether the redactions applied to the
documents published by the Department were still relevant.
I consider that the obligation of the Department to grant access to documents, as provided
by sections 11 and 11A of the FOI Act, applies only to documents of an agency as defined
by section 4 of the FOI Act. Accordingly, decision makers are not required to consider
whether exemptions should apply to documents when those documents are not
‘documents of an agency’ as defined by section 4 of the FOI Act. The original decision-
maker did not therefore assess – and was not required to assess – whether the
documents published by the Department were subject to exemptions. The decision to
apply exemptions to the documents prior to their publication by the Department was not
made by the decision-maker for this request, but for the decision-maker for a previous
request made to the Department.
I therefore consider that the decision of the Department to have previously applied
exemptions to documents within the scope of the request prior to their publication by the
Department is not a reviewable access refusal decision as defined by section 54A of the
FOI Act.
Accordingly, and based on the terms of your internal review in paragraph 3 above, I
consider you are seeking review of:
the searches conducted by the Department in its original decision
the Department’s decision, following those searches, to identify the four documents
indicated at paragraph 2 above as falling within the scope of your request.
5
Authority to make decision
I am authorised under section 23 the FOI Act to make decisions to release and to refuse
access to exempt documents and to conduct internal reviews.
6 Information
considered
I have considered:
the terms of your original request
the submission made by you in support of your request for internal review
the documents within the scope of the request
the searches undertaken in the original decision
the FOI Act; and
Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines).
7
Internal review decision
I have decided to vary the original decision of the Department dated 1 August 2022.
I have set aside the original decision to refuse the request under section 4(1)(d) of the FOI
Act and replaced it with a decision to refuse the request under section 24A of the FOI Act.
I have provided the reasons for my decision below.
8
Reasons for internal review decision: searches for documents within scope of
request
Section 24A of the FOI Act provides that the Department must take all reasonable steps to
locate documents within the scope of the request, and may refuse access to documents if,
following these searches, it is satisfied that the documents cannot be found or do not
exist.
Searches for documents within scope of request
The searches undertaken by the Department for documents within the scope of your
request were as follows:
a request for the relevant business area of the Department, Executive and
International Group, to conduct searches for documents
searches by this business area of held on HP TRIM Content Manager (TRIM), the
Department’s electronic records management system.
Whether all reasonable steps taken to locate documents
Paragraph 3.88 of the FOI Guidelines notes that the Act is silent on what constitutes ‘all
reasonable steps’ to search for a document, but suggests that the term should be:
‘construed as not going beyond the limit assigned by reason, not extravagant or
excessive, moderate and of such as amount, size or number as is judged to be
appropriate or suitable to the circumstances or purpose’.
Paragraph 3.89 of the FOI Guidelines further provides that, at a minimum, an agency’s
searches for documents should have regard to:
the subject matter of the documents
the current and past file management systems and the practice of destruction or
removal of documents
the record management systems in place
the individuals within an agency or minister’s office who may be able to assist with the
location of documents, and
the age of the documents.
Having considered the searches conducted above, and the outcomes of these searches, I
am satisfied that the Department has undertaken all reasonable steps to locate these
documents. In making this decision, I have taken into consideration:
You have not provided further information about the nature of the further documents
to which you seek access, which would enable further searches for documents to be
conducted by the Department.
The Department’s Ministerial and Parliamentary Branch, contained within the
Executive and International Group, is responsible for the coordination of Incoming
Government Briefs. Accordingly, I consider that the Executive and International Group
was best placed to advise on the existence of relevant documents and conduct
searches for documents.
As TRIM is the mandated electronic document and records management system
(EDRMS) for the Department, any documents within the scope of the request would
be expected to be stored on TRIM. The relevant documents were located from a
search of TRIM.
As there are three Ministers associated with the Home Affairs portfolio – the Minister
for Home Affairs, the Minister for Immigration, Citizenship and Multicultural Affairs and
the Minister for Emergency Management – it would be expected that a minimum of
three Incoming Government Briefs would exist. The Department has identified four
Incoming Government Briefs, noting that the Australian Border Force has produced a
separate brief to the Minister for Home Affairs in relation to its functions.
The documents at issue are published on the Department’s disclosure log at
https://www.homeaffairs.gov.au/access-and-accountability/freedom-of-
information/disclosure-logs/2022. Section 4(1)(d) of the FOI Act provides that a
document for the purpose of the FOI Act does not include material maintained for
reference purposes that is otherwise publically available. Section 11(1)(a) of the FOI
Act further provides that the right of access conferred by the FOI Act applies to ‘a
document of an agency’, as defined by section 4 of the FOI Act. Accordingly, the
identified documents are publicly available and are not ‘documents of an agency’ as
defined by section 4.
I therefore consider that, while the Department has identified documents within the
scope of the request, these publicly available documents are not ‘documents of an
agency’ and are therefore not documents to which the FOI Act applies.
While I consider that draft versions of the Incoming Government Briefs are not publicly
available, and accordingly could be considered ‘documents of an agency’ to which
the FOI Act would apply, you have indicated that you do not do not seek access to
draft documents. I therefore consider that further documents within the scope of the
request do not exist.
I am accordingly refusing your request under section 24A of the FOI Act.
9 Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562.
If you are unable to access the legislation through this website, please contact our office
for a copy.
10
Your review rights
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC)
for a review of this decision. You must apply in writing within 60 days of this notice. For
further information about review rights and how to submit a request for a review to the
OAIC, please see https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/.
11
Making a complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which
it is considered that the action taken in relation to the request should be investigated and
identify the Department as the relevant agency.
12 Contact
Should you wish to discuss my decision, please do not hesitate to contact via email at
xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx.
Authorised Decision Maker
Steve Biddle
Department of Home Affairs
