LEX 51545

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Brett (Position Number 62258141),
Assistant Director, Information Access Unit, Client Access and Rehabilitation Branch,
Department of Veterans’ Affairs

Applicant:

Ms Verity Pane

Decision date:

26 September 2022

FOI reference number:
LEX 51545

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Pane,
Freedom of Information Request: LEX 51545
Decision

1.  The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has not been able to identify any documents relevant to your request.

2.  For this reason, I have made a decision to refuse your request under 24A(1)(b)(ii) of the
Freedom of Information Act 1982 (FOI Act), as the documents do not exist.

Authority to make decision

3.  I, Brett (Position Number 62258141), Assistant Director, Information Access Unit, Client
Rehabilitation Access 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.
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Summary

4.  On 27 August 2022, you made a request for access to a document in the possession of the
Department. Your request sought access to:

‘…The recent interim report of the Royal Commission in Defence and Veteran Suicide
was critical about DVA's "lack of transparency", especially in the way DVA deals (or
more often, does not deal) with requests for official information held by DVA.

Because of this interim finding, this issue is now one of public interest.

One way the public can consider the DVA performance here is to review the LEX
reports (the system DVA uses to record and track such requests for official
information) DVA holds.

Scope is the first 100 pages of the LEX reports that were first created (not counting
those that were added to) in June 2022.

Personal information of private individuals and private companies who are not
employees of DVA is out of scope…’

5.  On 9 September 2022, the Department acknowledged your request via email.

6.  As no extensions of time have been applied to process your request, a decision on your
request is due by 26 September 2022.

Material taken into account

7.  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
refuse access to your request fol ow(s).

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

  the terms of your request on 27 August 2022;

  the types of documents that are in the possession of the Department;

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  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 provisions of the FOI Act relevant to
my decision:

-  Section 15      Request for Access;
-  Section 24A      Request may be refused if documents do not exist

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

9.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 1.

Reasons for decision

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

10.  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.

11.  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.
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•  the searches of the Information Access Unit’s R:Drive locations

12.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to your request.

13.  For these reasons, I am refusing your request for access to documents as described in your
request in accordance with section 24A(1)(b)(ii) of the FOI Act, on the basis that the
document does not exist.

Your rights of review

14.  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

15.  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 will be carried out by another officer within 30
days.

16.  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

OAIC review

17.  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
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Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx

18.  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

19.  If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following 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,

Brett (Position Number 62258141)
Assistant Director
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs

26 September 2022
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LEX 51545
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 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.

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.

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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:


a document of the agency; or


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).

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 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 conditionaly 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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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.
(see section 11A).

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 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.

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 al  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
shall cause the applicant to be given notice in writing of the decision, and the notice shal :
  (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

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(aa)  in the case of a decision to refuse to give access to a conditional y exempt document—include
in those reasons the public interest factors taken into account in making the decision; and

Note: Access must general y be given to a conditional y 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;

(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