LEX 53980
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Ramona (Position Number 62336362), Assistant Director,
Information Access Unit, Client Access and Rehabilitation Branch, Department of Veterans’
Affairs
Applicant:
Ms Verity Pane
Date of primary decision:
26 September 2022
FOI reference number (Primary): LEX 51545
Internal review decision date:
27 October 2022
Internal review reference number: LEX 53980
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pane,
Freedom of Information Internal Review Request: LEX 53980
Decision
1. The purpose of this letter is to give you a decision about your request for internal review of
the decision made on LEX 51545 under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
2. I have made a decision to affirm the original decision made by Brett (Position Number
62258141), Assistant Director, Information Access Unit, Client Access Rehabilitation Branch.
That decision was to refuse your request under section 24A(1)(b)(ii) of the FOI Act, as the
documents do not exist.
Authority to make decision
3. I, Ramona (Position Number 62336362), Assistant Director, Information Access Unit, Client
Access Rehabilitation Branch, am an officer authorised by the Secretary of the Department
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to make decisions about access to documents in the possession of the Department in
accordance with section 23(1) of the FOI Act.
Summary
Original Decision
4. On 27 August 2022, you made a request for access to the fol owing documents in the
possession of the Department:
‘…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 were applied to process your request, a decision on your request
was due by 26 September 2022.
7. On 26 September 2022, the Department made a decision to refuse your request under
section 24A(1)(b)(ii) of the FOI Act, as documents within scope of your request do not exist.
Internal Review
8. After receiving the Department’s decision on 26 September 2022, you contacted the
Department on 1 October 2022 and requested an internal review of the handling of this FOI
request. Your internal review request was made in the following terms:
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‘…Pass this on to the person who conducts Freedom of Information reviews to
perform internal review of the Department of Veterans' Affairs's decision in LEX
51545.
The claim by Brett that no LEX documents exist is one intentionally made by Brett as
a false representation given s 17 of the Freedom of Information Act 1982. Such
documents have been "found" by DVA before in LEX 49383 as one of the most recent
examples here on Right to Know so this false claim by Brett that such documents
cannot be found is bullshit…’
9. As your application was made within 30 days of the original decision being made, the
internal review decision is valid.
10. As no extension of time has been applied to process this internal review, a decision on your
internal review application is due by 31 October 2022.
Material taken into account
11. 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 your request under section 24A(1)(b)(ii) of the FOI Act follows.
12. I have taken the following material into account in making my decision:
• the terms of your original request made on 27 August 2022 and the original decision
made on this request on 26 September 2022;
• the records of the searches carried out in processing your original request;
• the terms of your internal review request made on 1 October 2022;
• the types of information and documents that are in the Department’s possession;
• 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 have 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 cannot be found or do not exist
- Section 54C Internal review – decision on internal review
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• the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines).
13. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
14. I have decided to affirm the original decision made on 26 September 2022 to refuse your
request under section 24A(1)(b)(ii) of the FOI Act, as the documents within scope of your
request do not exist.
15. 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.
16. I am satisfied that all reasonable steps have been taken to find information relevant to your
request, having regard to:
• the terms of your request on 1 October 2022;
• 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.
17. Further searches for documents within scope of your request were conducted, however, the
Department has been unable to identify documents within scope of your request. A
description of the searches undertaken to locate the documents which you are seeking to
access is at
Schedule 1.
18. I am therefore 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 documents within
scope of your request do not exist.
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Your rights of review
19. If you are dissatisfied with my decision, you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (
OAIC).
OAIC review
20. 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
21. 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
22. 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
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Yours sincerely,
Ramona (Position Number 62336362)
Assistant Director
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs
27 October 2022
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LEX 53980
Schedule 1
Summary of document searches
The Department’s Information Access Unit uses LEX as a matter management system for
information access requests received.
When a new request is received, it is registered in LEX and a record for that request is created.
Entries are then made, where applicable, in the particular record as the request is being
processed.
Upon request, a report can be generated from LEX for entries made for a particular record (for
example, under LEX 49383, a report was generated for entries made under individual LEX records).
However, a document cannot be located or provided which shows “
the first 100 pages of the LEX
reports that were first created (not counting those that were added to) in June 2022” as the
Department does not create such LEX ‘reports’, and therefore, did not create LEX reports in June
2022.
I am therefore satisfied that the documents requested do not exist under section 24A(1)(b)(ii) of
the FOI Act.
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LEX 53980
Schedule 2
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.
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:
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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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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:
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(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.
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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 refus
e a request for access to a
document if:
(a) al reasonable steps have been taken to find th
e 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 th
e document; and
(b) the
agency has not received the
document; and
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(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 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 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).
54C Internal Review – decision on internal review
Scope
(1) This section applies if an application fo
r internal review o
f an access refusal decision or an
access grant
decision (the original decision ) is made in accordance with this Part.
Decision
(2) The
agency must, as soon as practicable, arrange for a person (other than the person who made
the original decision) to review the decision.
(3) The person must make a fresh decision on behalf of th
e agency within 30 days after the day on
which the application was received by, or on behalf of, th
e agency.
Notice of decision
(4)
Section 26 extends to a decision made under this section.
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Document Outline