Material taken into account
In making my internal review decision, I have had regard to the following:
• your original freedom of information request FOIREQ22/00223 dated 12 August
2022
• the decision of the delegate dated 7 September 2022 the subject of this internal
review, and accompanying schedule and documents
• your request for internal review dated 7 September 2022
• the FOI Act, and
• the FOI Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act.
Internal Review Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.
An internal review decision is a ‘fresh decision’ made by a person other than the
person who made the original decision (s 54C of the
Freedom of Information Act 1982
(the FOI Act)). I have had regard to, but not relied on, the delegate’s original Freedom
of Information (FOI) decision.
I have decided to set aside the decision made on 7 September 2022.
I have identified one document within the scope of your request – the 15AB
extension of time Smartform which was submitted on-line, automatically uploaded
into Resolve. I have decided to provide you with full access to this document, and it is
attached. I note that you were previously provided with access to this material
pursuant to your original request for access, FOIREQ22/00223.
I have decided to refuse your request for access to ‘the email the webform was
received in by the OAIC’ under s 24A because I am satisfied that the document does
not exist.
The reasons for my decision are as follows.
Searches undertaken
Section 24A requires that an agency take ‘all reasonable steps’ to find a requested
document before refusing access to it on the basis that it cannot be found or does
not exist.
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The FOI Guidelines at [3.89] explain:
“Agencies and ministers should undertake a reasonable search on a flexible and
common-sense interpretation of the terms of the request. What constitutes a
reasonable search wil depend on the circumstances of each request and will be
influenced by the normal business practices in the agency’s operating environment.
At a minimum, an agency or minister should take comprehensive steps to locate
documents, having 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 who may be able to assist with the location of
documents, and
•
the age of the documents”
I note that in your internal review request, you stated the following:
“My foi was for 'copy of the s 15AB application form (and the email it was sent in) in
RQ22/02493.’
FOIREQ22/00223 provided copy of the webform but not the email it was received in by
the OAIC.
Internal review required as the OAIC does not just have the webform magical y appear -
it is sent as a PDF by email by another agency. The email is important as it is the only
record that gives the date and time the form was received by the OAIC.”
I note that in processing the original decision the subject of this internal review, a
member of the OAIC Legal Services team sent a search and retrieval request to the
FOI Regulatory line area, who advised that, due to the s 15AB application form being
sent online via the SmartForm on the OAIC’s website, there was no email received.
In processing this internal review, a staff member of the OAIC Legal Services team
sought to re-confirm with the line area the existence of the email the subject of your
internal review request. The line area stated that the s 15AB application form the
subject of your request was received via the OAIC’s SmartForm application (available
at: https://www.oaic.gov.au/freedom-of-information/guidance-and-
advice/extension-of-time-for-processing-requests). The line area confirmed that
when an agency submits an extension of time request via the SmartForm, the
submission, any attachments, and the form data are received via the OAIC’s case
management system
Resolve and are not received by the OAIC via email. Due to this,
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it appears that the email you are requesting in this internal review application does
not exist.
In light of the above, I am satisfied that all reasonable searches have been
undertaken to locate documents within the scope of your request, and that no
document identifiable as ‘an email in which the webform was received’ exists.
Information related to your request
In your request for internal review you state that you are interested in the time and
date that the s 15AB form the subject of your request was received by the OAIC. I
have decided to provide that information to you administratively.
After further consultation with the line area and on reviewing the form data of the
relevant document, it appears that the SmartForm was submitted to the OAIC on 11
July 2022 at 5:22:14pm, automatically uploading to Resolve shortly thereafter.
Conclusion
For the above reasons, I set aside the original decision made in FOIREQ22/00223, and
substitute my decision in which I have decided to grant you full access to one
document and refuse access to the other under s 24A of the FOI Act on the ground
that the document does not exist.
Please see the following page for information about your review rights.
Yours sincerely
Caren Whip
General Counsel
14 October 2022
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If you disagree with my decision
Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision
(IC review). If you wish to apply for IC review, you must do so in writing within
30 days. Your application must provide an address (which can be an email address or
fax number) that we can send notices to, and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
s 57A of the FOI Act provides that, before you can apply to the AAT for review of an
FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact xxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
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