Mr Squiggle
By Ema
il: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference: LEX 1365
Dear Applicant
Freedom of Information request
1. I am writing about your Freedom of Information (
FOI) internal review application under the
Freedom of Information Act 1982 (
FOI Act) made on 8 February 2025 for an earlier FOI request
decision made by the Australian Public Service Commission (
Commission) on 4 February 2025.
2. The FOI Act is publicly available from
www.legislation.gov.au.
Original Request and decision
3. You requested access to documents in the following terms:
1. Any documents that provides evidence the APS and/or its individual agencies have, as a matter of fact,
"integrity" and a "good reputation".
2. Any documents that identifies the decision maker who made the assessment the APS and/or its individual
agencies have "integrity" and a "good reputation".
2. Any documents that detail the reasoning as to why this part of the Code of Conduct was previously updated,
changing "reputation" to "good reputation".
4. The original decision maker, Ms Sue Mahony, decided a practical refusal reason existed for the
purposes of paragraph 24AA(1)(b) of the FOI Act, and refused you access to the requested
documents pursuant to section 24(1)(b) of the FOI Act.
Your internal review application
5. On 8 February 2025, you made an internal review application to the Commission as follows:
‘I would like to request an interview (sic) review of your refusal decision (Your reference LEX 1320).’
Decision on your FOI request
6. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions, and have reviewed
your application in accordance with section 54C of the FOI Act.
7. My role is to make a new decision on your request, impartially and independently from the original
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decision maker. I was not involved or consulted in the making of Ms Mahony’s decision. Internal
review is a merits review process and I may exercise all the powers available to an original decision
maker.
8. After considering your request, under subsection 54C(3) of the FOI Act, I affirm Ms Mahony’s
earlier decision to refuse access to the requested documents. In coming to this decision, I am
satisfied that a practical refusal decision exists under paragraph 24AA(1)(b) of the FOI Act as the
requirement of a valid FOI request under paragraph 15(2)(b) of the FOI Act is not met.
Reasons for decision
9. In making this decision I have had regard to:
the terms of your request;
the terms of your response to the request consultation process;
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner.
10. Section 15(2)(b) of the FOI Act provides that an FOI request must:
“provide such information concerning the document as is reasonably necessary to enable a
responsible officer of the agency…to identify it;”
Section 24AA(1)(b) of the FOI Act provides that a practical refusal reason exists in relation to a
request for a document if:
“the request does not satisfy the requirement in paragraph 15(2)(b) (identification of
documents).” Paragraph 3.109 of the FOI Guidelines broadly restates the above legislative requirements, and
provides that where the formal requirements have not been complied with such that a ‘practical
refusal reason’ exists, then a request consultation process is required.
11. On 14 January 2025, the Commission wrote to you requesting that you clarify or narrow the scope
of the type of documents you are requesting, including providing an example that the scope could
be clarified by specifying the types of documents sought. Further, the Commission sought to
facilitate access to information in relation to the third point of your request, by advising that the
documents you sought, would likely be accessible at the National Archives of Australia. No
response was received from you.
12. On 23 January 2025, Ms Mahony notified you that a practical refusal reason existed for your FOI
request under section 24AA of the FOI Act and initiated a ‘request consultation process’. In that
letter Ms Mahony provided examples of how your request could be clarified to enable it to proceed,
including by adding a reasonable date range and outlining the type documents you sought for each
point. Further, Ms Mahony requested that before the end of the consultation period you either
withdraw your request, revise it or tell us you do not wish to revise it.
13. Pursuant to subsection 15(3) of the FOI Act, the Commission took reasonable steps to assist you
to make a valid request, including commencing an informal consultation and formal consultation
under section 24AB of the FOI Act (
‘SY’ and Services Australia (Freedom of Information) [2020]
AICmr 39 [32]).
14. On 28 January 2025, you declined to revise the scope of your request in the following terms:
“I trust the APSC has the capability to identify the relevant documents I have outlined.
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It would be somewhat concerning if the APS was unable to demonstrate with evidence its self-proclaimed
'integrity' and 'good reputation'. In fact, it could be argued making such claims without sufficient evidence
lacks integrity.”
15. In the case of
Mills v Department of Immigration and Border Protections [2014] AICmr 54 (
Mills)
it was held at paragraphs
[15]-[16] that:
“The fact that a request under the FOI Act must be for documents, rather than for information,
means that there is no obligation on an agency to provide information requested unless it exists in
documents. It does not mean that a request for documents cannot be phrased by reference to the
information that those documents contain.
In fact, it will often be the case that an FOI request identifies documents by reference to the
information that they contain. That is frequently the most effective and concise way for an FOI
applicant to identify documents. If the request is too broad – if it identifies a very large number of
documents – the agency can use a request consultation process to narrow the scope of the request.
If the agency has no documents that contain the information specified, it can refuse the request
under s24A on the basis that the documents sought do not exist.”
16. The reasoning in
Mills is replicated at paragraph 3.110 of the FOI Guidelines, which I have
considered in making this decision.
17. In
Mills, the applicant sought documents containing statistical information. However, in this
instance, I am of view that the scope of your request can be distinguished from the request in
Mills. This is because your request as currently framed requires a subjective assessment as to whether
the content of documents falls within the scope, as opposed to identifying objective information
contained in a document such as the statistical information in
Mills.
18. Further, as outlined in
Mills and paragraph 13 above, the Commission used a request consultation
process to attempt to narrow the scope of your request. However, following the request
consultation process, you did not revise your request in order to provide the Commission the
information that is reasonably necessary to enable a responsible officer agency or minister to
identify the document(s) requested, which is a requirement of a valid FOI request under paragraph
15(2)(b) of the FOI Act.
19. Accordingly, the Commission is unable to interpret the focus of your request as it is too broad and
does not provide sufficient objective information as is reasonably necessary to enable the
Commission to efficiently conduct the relevant searches to locate documents responding to the
request.
20. For the Commission to discharge its duty under the FOI Act to conduct ‘reasonable searches’, it
needs to be able to identify the information you are seeking. Without further clarification, the
Commission is unable to process this request.
21. On this basis, I am satisfied that a practical refusal reason exists for the purposes of paragraph
24AA(1)(b), and affirm the original decision.
Review rights
22. You are entitled to seek review of this decision. Your review rights are set out at
Attachment A.
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Contacts
23. If you require clarification on matters in this letter please contact the Commission’s FOI Officer
by email at
xxx@xxxx.xxx.xx.
Yours sincerely
Melanie McIntyre
Authorised FOI decision maker
7 March 2025
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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.
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 (OAIC) from
the date you received this letter.
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
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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
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