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Recent Cases: Commonwealth

'XW' and Services Australia [2021] AICmr 45 

‘XW’ (“applicant”) applied to Services Australia (“respondent”) for access to documents under the Freedom of Information Act 1982 (Cth) ("FOI Act").  The applicant sought access to three items.

 

The respondent identified one document that related to item 1 of the applicant's request and released it to them administratively.  The respondent took that part of the request to be withdrawn. 

 

The respondent refused the remainder of the request under s 24A(1) of the FOI Act on the basis that all reasonable steps had been taken to find the documents within the scope of items 2 and 3 of the applicant's request and that no such documents could be found and that documents within the scope of the request did not exist. 

 

The applicant sought review of the respondent's decision by the Office of the Australian Information Commissioner (“Commissioner”) on the basis that the documents requested at items 2 and 3 should have been released. 

 

The issue to be determined by the Commissioner was whether the respondent had taken all reasonable steps to find documents within the scope of the request (s 24A of the FOI Act). 

 

Whether reasonable steps taken to find documents: s 24A 

 

The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as to be judged to be appropriate or suitable to the circumstances or purpose. 

 

What constitutes a reasonable search will depend on the circumstances of each request and will 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 systems and the practice of destruction or removal of documents;
  • the record management systems in place;
  • the individuals within an agency or minister's office who may be able to assist with the location of documents; and
  • the age of the documents.

The applicant asserted that the respondent needed to ‘extend the scope of the search’ in order to find the relevant documents. 

 

The respondent stated that all reasonable searches were conducted in accordance with the parameters of the applicant’s request and that no documents could be located matching the description outlined in the applicant's request.

 

The respondent provided evidence and submissions in relation to the searches it conducted to find the documents at items 2 and 3 of the request.  

 

In regard to item 2 of the request, searches were conducted by the respondent’s New Customers and Mainstream Services Branch. The Branch checked the relevant paper file, scanned records and electronic file.   The applicant later advised that they no longer sought access to documents in item 2 of the request. 

 

Item 3 of the request concerned court varied assessments.  The respondent undertook further searches but noted that even if documents could be located, they would be wholly exempt under s 38 of the FOI Act.  Further, even confirming whether or not a document exists would result in the disclosure of protected information, and therefore, is not required to be advised to the applicant (s 26(2) of FOI Act).  The Commissioner accepted the respondent's submissions.

 

HELD:

 

The Commissioner was satisfied that the respondent had taken all reasonable steps to find documents within the scope of item 3 of the applicant's request. 

Gothe-Snape; Chief Executive Officer, Services Australia and [2021] AATA 2710 (4 August 2021)

The Chief Executive Officer, Services Australia (“applicant”) sought review of a decision of the Australian Information Commissioner (“Commissioner”).

 

The applicant received a request under the Freedom of Information Act 1982 (Cth) (“FOI Act”) from Mr Gothe-Snape (‘respondent”).  The applicant identified one document relevant to the respondent’s request and refused access in full to the document on the basis that it was exempt under s 34(1)(c) and, or in the alternative, s 34(3) of the FOI Act.

The document was a ministerial briefing document prepared in 2015 by the former Department of Human Services for the then Minister for Social Services and the then Minister for Human Services.

 

The respondent made an application to the Commissioner for review of the original decision. 

 

The Commissioner set aside the original decision and made a decision in substitution of that decision that the document contains material that is regarded as irrelevant to the request under s 22(1)(a)(ii) FOI Act; and the remaining material in the document is not exempt under ss 34(1)(c), 34(3) or 47C of the FOI Act. 

 

The applicant received notice of the Commissioner’s decision and sought review of that decision.

 

The issues to be determined by the Administrative Appeals Tribunal (“Tribunal”) were whether the document is exempt because the relevant material in the document is:

  1. exempt under s 34 of the FOI Act; or 
  2. conditionally exempt under s 47C of the FOI Act, and if so, whether giving access to the document would, on balance, be contrary to the public interest 

Ministerial briefing on a proposed Cabinet submission: s 34(1)(c)

 

The Tribunal was satisfied that the document is an exempt document under s 34(1)(c) of the FOI Act because it was brought into existence for the dominant purpose of briefing a Minister on a document to which s 34(1)(a) of the FOI Act applies.

 

Exception in s 34(6)

 

The Tribunal found that the exception to the exemption under s 34(6) of the FOI Act does not apply in the present case because the information in the document is not purely factual material. It contains deliberative matter relating to development of the New Policy Proposals (“NPPs”) and puts forward options to the Ministers for consideration in relation to the proposed submission of the NPPs to Cabinet (and the Expenditure Review Committee) for consideration.

 

Further, insofar as some of the material in the document could be characterised as factual in nature, it forms an integral part of the deliberative content and purpose of the document.  It is therefore not appropriately characterised as being “purely” factual material, or is otherwise so embedded in or intertwined with deliberative content such that it is impractical to separate it. 

 

Disclosure of a Cabinet deliberation or decision: s 34(3)

 

The Tribunal did not consider whether the document is an exempt document under s 34(4) of the FOI Act. 

 

Deliberative processes: s 47C

 

The Tribunal did not consider whether the document is an exempt document under s 47C of the FOI Act. 

 

HELD:

 

The Commissioner’s decision is varied to find that the document is exempt under s 34(1)(c) of the FOI Act.