Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 1 October 2022,
• your previous request FOIREQ22/00241,
• the document at issue,
• the FOI Act, in particular s 17 and s 24A,
• the guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act (the FOI Guidelines), and
• relevant case law.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified
1 document within the scope of your request, created under s 17 of
the FOI Act. I have decided to release this document to you in part.
Whether reasonable steps taken to find documents – s 24A
Section 24A of the FOI Act requires the OAIC to 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.
Section 24A provides as follows:
(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
(i ) does not exist
The FOI Guidelines state:
Agencies and ministers should undertake a reasonable search on a flexible and
common sense interpretation of the terms of the request. What constitutes a
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reasonable search will depend on the circumstances of each request and will be
influenced by the normal business practices in the agency’s operating environment
or the minister’s office. 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 system and the practice of destruction
or removal of documents
• the record management system in place
• the individuals within the agency who may be able to assist with the location
of documents, and
• the age of the documents.
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Searches undertaken
In processing your FOI request, the following line areas of the OAIC conducted
reasonable searches for documents relevant to your request:
• People and Culture
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s case management system - Resolve
• the OAIC’s document holding system – Content Manager
• OAIC’s email system
• general computer files
Having consulted with the relevant line area and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request, and that no documents were able to
be found within the scope of your request.
1 Office of the Australian Information Commissioner,
Guidelines issued by the Australian Information
Commissioner under s 93A
of the Freedom of Information Act 1982 (
FOI Guidelines) [3.89], footnotes
omitted.
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Document created under s 17 of the FOI Act
As I am satisfied that the documents you have requested do not exist or cannot be
found, I have considered whether the OAIC may produce a document under s 17 of
the FOI Act containing the information that you have requested. Relevantly, the FOI
Guidelines at [3.212] state that the obligation to produce a written document arises
if:
•
the agency could produce a written document containing the information by using a
‘computer or other equipment that is ordinarily available’ to the agency for retrieving
or collating stored information (s 17(1)(c)(i)), or making a transcript from a sound
recording (s 17(1)(c)(i )), and
•
producing a written document would not substantial y and unreasonably divert the
resources of the agency from its other operations (s 17(2)).
Relevant to your request, in the Full Federal Court case of
Collection Point Pty Ltd v
Commissioner of Taxation [2013] FCAFC 67, the Court found at [43]-[44] that the
reference in section 17(1)(c)(i) to ‘computer or other equipment that is ordinarily
available’ means
“…a functioning computer system including software, that can
produce the requested document without the aid of additional components which are
not themselves ordinarily available …” The Court further observed that
“[T]he
computer or other equipment … must be capable of functioning independently to
collate or retrieve stored information and to produce the requested document” [44].
Similarly, in the recent case of
YH and Australian Communications and Media
Authority (Freedom of information) [2021] AICmr 64, it was found that a ‘manual
process’ of locating the requested information in number of other documents and
then manually collating this information in a new document goes beyond what s 17
requires, and therefore s 17 does not apply in these circumstances (see [30]-[33]).
Consideration
I note that in your current FOI request you refer to the documents released to you in
your earlier decision FOIREQ22/00241. There two documents released to you were
titled as follows:
1. “OAIC Organisation Chart as 1 April 2022”, and
2. “Document generated under s 17 of the FOI Act”
Regarding Document 1, having regard to the requirements of s 17 as outlined above,
it is not possible for the OAIC to use a computer system ordinarily available to us to
generate an updated version of this document, as per your request. Noting, as
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explained above, that no updated version of this document appears to exist, the only
way in which to create this document would be through manually collating the
information. I am therefore satisfied that to create such a document would require
manual intervention beyond the obligation created under s 17 of the FOI Act.
Regarding Document 2, an updated version of this document has been generated
using a computer system ordinarily available to the OAIC, as per your request.
Access to edited copies with irrelevant and exempt matter deleted (s 22)
I have found that the document released to you contains irrelevant material that is
outside the scope of your request.
s 22(1)(b)(ii) of the FOI Act provides that an agency may prepare an edited copy of a
document by deleting information that is exempt or that would reasonably be
regarded as irrelevant to the request.
The FOI Guidelines explain at [3.54] that a request should be interpreted as
extending to any document that might reasonably be taken to be included within the
description the applicant has used.
As outlined above, I have interpreted your request as being for
“the redacted versions
of these documents as they were released for FOIREQ22/00241, but with non-redacted
details updated for currency…”. In line with this interpretation
, the information that
was previously exempted in FOIREQ22/00241 is irrelevant to your request.
On this basis, I have prepared the document for release by removing the irrelevant
and out of scope material in accordance with s 22(1)(a)(ii) of the FOI Act.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Margaret Sui
Senior Lawyer
31 October 2022
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further 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 60 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.
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Section 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 xxxxx@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
xxxxx@xxxx.xxx.xx. More information is available on the Access our information
page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
I have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.
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