Our reference: FOI LEX 45489
Decision date: 6 October 2022
Applicant name: John Smith
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information request FOI LEX 45489
1.
I refer to your request received by the Department of Social Services (
the Department)
on 6 September 2022, in which you requested access, under the
Freedom of Information Act 1982 (
FOI Act) to:
‘the titles and delivery dates of all final reports and documents delivered to or produced
by the Department, since 1 January 2017, on the topics of both land release (or land
supply) and affordable housing (in the same report or document, exact match in
terminology not required)’
2.
On 9 September 2022, the Department acknowledged your request and sought your
agreement to the removal of the private email addresses, signatures and mobile
numbers of all DSS staff, and the removal of the names of non-Senior Executive Service
(
non-SES) staff from any document provided in response to your request. You
responded on the same day and agreed to the removal of this information.
Decision
3.
The Department has undertaken a reasonable search of its records and has identified
seven (7) documents relevant to your request.
4.
In accordance with subsection 17(2) of the FOI Act, I have decided that the Department
could produce a written document containing the information you have requested in
discrete form, in accordance with paragraph 17(1)(c) of the FOI Act and that in doing so
would not substantially and unreasonably divert the resources of the Department from
its other operations.
5.
Accordingly, the Department has prepared a document that consists of a list of the titles
and delivery dates of the 7 documents, in accordance with paragraph 17(1)(c) of the FOI
Act (
the document).
6.
I have made a decision to grant access in ful to the document.
7.
The document that I have chosen to grant access to is listed at
Appendix 1.
Authority to make decision
8.
I 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
subsection 23(1) of the FOI Act.
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Background
9.
As stated above, the Department received your request on 6 September 2022. Your
request was formally acknowledged on 9 September 2022 and you were incorrectly
advised that a response was due to you by 7 October 2022. The Department apologises
for this error. The 30 day time frame for your FOI request expires on 6 October 2022.
10. As stated above, on 9 September 2022, you agreed to the removal of the private email
addresses, signatures and mobile numbers of al DSS staff, and the removal of the
names of non- SES staff from any document provided in response to your request
Material taken into account
11. When making my decision I considered the following:
a)
the terms of your request;
b)
the types of information and documents that are in the Department’s possession;
c)
the content of the documents that fall within the scope of your request; and
d)
consultation with relevant business areas on the documents falling within scope of
your request.
12. I also particularly considered the following provisions of the FOI Act:
a)
section 3, which outlines the objects of the FOI Act, including the Australian
community’s right of access to information held by the Government of the
Commonwealth;
b)
sections 11 and 11A, which give the Australian community a legally enforceable
right to access information held by the Government of the Commonwealth; and
c)
section 17, that allows the Department to produce a written document containing
information in discrete form, if in doing so would not substantially and
unreasonably divert the resources of the Department from its other operations.
13. Full extracts of provisions of the FOI Act I have relied on are in
Appendix 2.
14. I have also had regard to the FOI Guidelines issued by the Australian Information
Commissioner under section 93A of the FOI Act.
Access to documents
15. The document released to you in accordance with the FOI Act is enclosed.
Publication of information in accessed documents
16. I am of the view that details of your request should be made available on the
Department’s FOI Disclosure Log. Accordingly, details of your request wil be published
on the Department’s FOI Disclosure Log.
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17. 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
18. Information about your rights to seek a review of this decision are at
Attachment A.
19. Should you have any enquiries concerning this matter please do not hesitate to contact
the FOI team by email at
xxx@xxx.xxx.xx.
Additional Information
20. The documents indicated in paragraph 3 above are publicly available documents. The
Department wil provide you with links to where you may access these documents on
the world wide web.
Yours sincerely,
R Watt
Director (A/g)
FOI Section
Legal Services Branch
6 October 2022
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Appendix 1
Schedule of documents
FOI LEX 45489
Document No. of
No.
pages
Date
Description
Access Decision
1
1
30 September
2022
Document
Full access
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Appendix 2
Schedule of relevant provisions used in making this decision
Excerpts from the
Freedom of Information Act 1982 (Cth)
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 following:
(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:
(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 following:
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(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
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 conditionally 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).
11B Public interest exemptions — factors
Scope
(1) This section applies for the purposes of working out whether access to a
conditionally exempt document would, on balance, be contrary to the public
interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
(b) Inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
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Irrelevant factors
(4) The following factors must not be taken into account in deciding whether
access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(b) access to the document could result in any person misinterpreting or
misunderstanding the document;
(c)
the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary
debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary
to the public interest, an agency or Minister must have regard to any guidelines
issued by the Information Commissioner for the purposes of this subsection
under section 93A.
15 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 (includi
ng a request in relation to whic
h a practical refusal
reason exists) is made in accordance with the requirements of
subsection 15(2) to
an agency;
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(b)
It appears from the
request that the desire of t
he applicant is for
information that is not available in discrete form in writt
en documents
of t
he agency; and
(ba)
it does not appear from t
he 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 writt
en document containing the
information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily
available to t
he agency for retrieving or col ating stored
information; or
(ii) the making of a transcript from a sound recording held in the
agency;
t
he agency shall deal with t
he request as if it wer
e a request for access to a written
document so produced and containing that information and, for that purpose,
this Act applies as if t
he agency had such a
document in its possession.
(2)
An
agency is not required to comply wit
h subsection (1) if compliance would
substantially and unreasonably divert the resources of t
he agency from its other
operations.
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 Appendix 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.
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