Velan
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 362
Dear Velan
Freedom of Information request
1. I am writing about your Freedom of Information (FOI) request under the
Freedom of
Information Act 1982 (FOI Act) made on 7 November 2022 for access to documents held
by the Australian Public Service Commission (Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available from www.legislation.gov.au
Documents relevant to your request
3. You requested access to documents in the following terms:
“Under the FOI Act, I request access to any and all briefing documents prepared for
the Australian Public Service Commissioner for use at the November 2022 session of
Budget Estimates relating to the Commonwealth Ombudsman's decision to investigate
the manner in which Kate McMullan conducted an investigation into allegations of
misconduct by senior members of the staff of the Federal Court under the Public
Interest Disclosure Act 2013.”
Decision on your FOI request
4. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
5. I am satisfied that all reasonable steps have been taken to find documents within scope of
your request, and that no such documents meeting the description of what you have asked
for can be found or exist.
6. As such, I refuse your request for access to documents pursuant to section 24A of the FOI
Act.
Reasons for decision
Section 24A – documents that cannot be found or do not exist
7. Subsection 24A(1) of the FOI Act provides:
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
(1) An agency or Minister may refuse a request for access to a document if:
(a) all 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 or Minister’s possession but cannot be found; or
(ii)
does not exist.
8. The Office of the Australian Information Commissioner (OAIC) has issued guidelines
pursuant to section 93A of the FOI Act. At paragraphs 3.88 to 3.93 of these guidelines, the
OAIC provides guidance as to the meaning of the term ‘all reasonable steps’ in subsection
24A(1).
9. Having regard to OAIC’s guidance, I have taken into account the subject matter of your
request.
10. I am currently the acting Assistant Commissioner of the Integrity, Performance and
Employment Policy Group in the Commission and this Group is responsible for liaising
with the Commonwealth Ombudsman on this matter.
11. I can confirm that no briefing materials were prepared for use at the November 2022 session
of Budget Estimates which related to ‘the Commonwealth Ombudsman’s decision to
investigate the manner in which Kate McMullan conducted an investigation into allegations
of misconduct by senior members of the staff of the Federal Court under the
Public Interest
Disclosure Act 2013.’
12. Accordingly, I have decided to refuse your request for access under section 24A of the FOI
Act.
Contacts
13. If you require clarification on matters in this letter please contact the Commission’s FOI
Officer by telephone on (02) 6202 3500 or by email at xxx@xxxx.xxx.xx
Review rights
14. You are entitled to seek review of this decision. Your review rights are set out at
Attachment A.
Yours sincerely
Clare McLean
Authorised FOI decision maker
7 December 2022
ATTACHMENT A
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Seeking review of a Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (the FOI Act)
may give you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service
Commission; and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will
consider all aspects of the original decision and decide whether it should change. An
application for internal review must be made in writing within 30 days of receiving this letter
to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
in writing for a review by the Office of the Australian Information Commissioner (the OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
Document Outline
