LEX 54687
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Brett (Position Number 62331110),
A/g Director, Information Access Unit,
Client Access and Rehabilitation Branch, Department of Veterans' Affairs
Applicant:
Alan Ashmore
Date of primary decision:
24 October 2022
FOI reference number (Primary): LEX 53717
Internal review decision date:
15 December 2022
Internal review reference number: LEX 54687
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Ashmore,
Freedom of Information Internal Review Request: LEX 54687
Decision
1. The purpose of this letter is to give you a decision about your request for internal review for
the decision made in LEX 53717 under the
Freedom of Information Act 1982 (Cth) (
FOI Act)
2. I have made the decision to affirm the original decision made by Ramona (Position Number
62336362), Assistant Director, Information Access Unit, Client Access Rehabilitation Branch.
That decision was to grant ful access to two (2) documents and refuse access to the last two
dot points of your request (ie. the total additional cost to the Government of veterans and
war widows in receipt of a Gold Card) under section 24A(1)(b)(ii) of the FOI Act, on the basis
that the documents do not exist or cannot be found.
Authority to make decision
3. I, Brett (Position Number 62331110), A/g Director, Information Access Unit, Client Access
Rehabilitation Branch, am an officer authorised by the Secretary of the Department to make
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decisions about access to documents in the possession of the Department in accordance
with section 23(1) of the FOI Act.
Summary
Original Decision
4. On 8 September 2022 you made a request for access to a document in the possession of the
Department. Your request sought access to:
‘…I am seeking the latest document/worksheet listing the fol owing, namely:
: The total cost to DVA of a veteran in receipt of a Gold Card.
: The total cost to DVA of a war widow in receipt of a Gold Card
: The total additional cost to Government of a veteran in receipt of a Gold Card, and
: The total additional cost to Government of a war widow in receipt of a Gold Card.
All documentation/worksheets to list the complete breakdown of costs, e.g. optical,
dental, hospital, transport, medical, pharmaceutical, etc. .’
5. On 15 September 2022, the Department acknowledged your request via email.
6. As an extension of time was applied to process your request in accordance with section
15AA of the FOI Act, a decision on your request was due by 24 October 2022.
7. On 24 October 2022 the Department made a decision to grant ful access to two (2)
documents and refuse access to the last two dot points of your request (ie. the total
additional cost to the Government of veterans and war widows in receipt of a Gold Card)
under section 24A(1)(b)(ii) of the FOI Act, on the basis that the documents do not exist or
cannot be found within the scope of your request, under the fol owing provisions of the FOI
Act:
- Section 15 Request for Access
- Section 17 Requests involving use of computer etc. (e.g. request for the
Department to create a document)
- Section 24A Request may be refused if the documents cannot be found or do not
exist
Internal Review
8. After receiving the Department's decision on 24 October 2022, you contacted the
Department on 15 November 2022 requesting an internal review of the handling of this FOI
request. Your internal review request was made in the following terms:
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'…I am writing to request an internal review of Department of Veterans' Affairs's
handling of my FOI request 'Gold card costs...'
9. On 8 December 2022, I emailed you to clarify the scope of the internal review. Thank you for
clarifying the scope.
10. As your application was made within the 30 day of the original decision being made, the
internal review decision is valid.
11. As no extension of time has been applied to process this internal review, a decision on your
internal review application is due 15 Dec 2022.
Material taken into account
12. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the document follows
13. I have taken the following material into account in making my decision.
• the terms of your original request made on 8 September 2022 and the original
decision made on this request on 24 October 2022;
• the records of the searches carried out in processing your original request;
• the terms of your internal review request made on 15 November 2022;
• the types of information and documents that are in the Department's possession;
• the content of the document that fal within the scope of your request;
• Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I have also considered the following provisions of the FOI Act
relevant to my decision:
- Section 15 Request for Access
- Section 17 Requests involving use of computer etc. (e.g. request for the
Department to create a document)
- Section 24A Request may be refused if the documents cannot be found or do not
exist
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- Section 54C Internal review - decision on internal review; and
• the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines);
14. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 3.
Reasons for decision
15. I have decided to affirm the original decision made on 24 October 2022 to grant full access
to two (2) documents and refuse access to the last two dot points of your request (ie. the
total additional cost to the Government of veterans and war widows in receipt of a Gold
Card) under section 24A(1)(b)(ii) of the FOI Act, subject to the fol owing provisions in the FOI
Act.
Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)
16. Section 24A(1) of the FOI Act provides that 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
(ii) does not exist.
17. I am satisfied that all reasonable steps have been taken to find information relevant to your
request, having regard to:
• the terms of your request;
• the subject matter of the documents;
• the current and past file management systems and the practice of orderly
destruction or removal of documents;
• the Department’s record management systems and practices; and
• the individuals and areas within the Department who may be able to assist with
the location of the information you seek access to.
18. The last two dot points of your request seek access to the total additional cost to the
Government of veterans and war widows in receipt of a Gold Card.
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19. The Department’s Data & Insights team have advised that the data requested is not
produced as a report, thus no documentation is available to fully address the request.
20. On the advice provided by the business area, I am satisfied that documents do not exist for
the last two dot points of your request. On this basis, I am refusing those parts your request
for access to documents in accordance with section 24A(1)(b)(i ), on the basis that
documents do not exist.
21. Additional y, further searches were conducted (summarised in
Schedule 2) to locate the
document shown to you at the Secretary’s Round Table in August 2019. On the basis of the
responses to the searches, I am refusing those parts of your request for access to documents
in accordance with section 24A(1)(b)(i), on the basis that the document cannot be found.
Creation of a document in response to your FOI request (section 17)
22. In order to provide you access to relevant information regarding your request, the
Department’s Data & Insights team extracted and complied the data listed in the
Department’s wider databases to create document 2 in scope of your request.
23. Document 2 is comprised of a breakdown of the average costs to the Department of a
veteran and war widow in receipt of a Gold Card as requested in the first dot points of your
request.
24. Document 2 is listed in
Schedule 1 and was created in accordance with section 17 of the FOI
Act.
Access to documents
25. You were provided with the document previously, on 24 October 2022, as part of the
primary FOI decision LEX 53717. I have therefore not enclosed the document again.
Your rights of review
26. If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (
OAIC).
OAIC review
27. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
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Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
28. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
29. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans' Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Brett (Position Number 62331110)
A/g Director
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans' Affairs
15 December 2022
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LEX 54687
Schedule 1
Document schedule
Applicant:
Alan Ashmore
Decision date:
15 December 2022
FOI reference number:
LEX 54687
Document Date of
Document description
Page
Decision
Exemption
reference document
number
provision
1
March 2022 Document 1 – SAAG_March 2022
1
Full Access
N/A
2
Unavailable Document 2 – DATA-4967 – ATCM – Veteran and
1
Full Access
N/A
War Widow Gold Card Cost
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LEX 54687
Schedule 2
Summary of Searches Undertaken
Applicant:
Alan Ashmore
Decision date:
15 December 2022
FOI reference number:
LEX 54687
1. On 7 December 2022, noting your contention that you had seen a document containing the
information you are requesting at the
“Secretary's Round Table, (SRT), in August 2019”, I
sent a search minute to the Office of the Secretary. I was advised by a staff member of the
Secretary’s office (by phone) that the document, if it does exist, would more likely be held
by the Chief Operating Officer or the Chief Financial Officer Division. The Secretary’s Office
did not conduct a search.
2. On 7 December 2022, I sent a search minute to the Chief Operating Officer Division. On 7
December 2022 the COO Division advised they are the incorrect area to respond to the
search minute. The COO Division did not conduct a search.
3. On 7 December 2022, I sent a search minute to the Chief Financial Officer Division. On 12
December 2022 the Data Insights Branch (within the CFO Division) advised that they had
conducted a search and could not locate the document presented in August 2019.
4. On 13 December 2022, noting your contention that you were shown the document by a
First Assistant Secretary at the SRT in August 2019.
“This First Assistant Secretary then
arranged to meet with him when next in Melbourne but we never heard from him again.”
According to organisational charts from the period. There were two male First Assistant
Secretary’s at the time. One is no longer employed by the department. The other, I
consulted as to whether he had any recol ection of the meeting or the document. He
advised me that he was acting as Chief Operating Officer at the time of the meeting. He has
a record of the meeting in his diary, but he doesn’t recal attending. He advised me that the
scope of your request would have fal en outside his responsibilities, and advised me to
approach the Policy Division Costings Team.
5. On 13 December 2022, I sent a search minute to the Veteran and Family Policy Division. On
13 December 2022 the VFP Division advised that they had conducted the search and found
“Nil results”.
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LEX 54687
Schedule 3
Schedule of relevant provisions in the FOI Act
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 fol owing:
(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.
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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 fol owing:
(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).
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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 conditional y exempt.
Note 2: A conditional y 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 conditional y 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).
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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.
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Requests involving use of computers etc
(1)
Where:
(a)
a request (including a
request in relation to which
a practical refusal reason exists)
is made in accordance with the requirements o
f subsection 15(2) to an
agency;
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(b)
It appears from the
request that the desire of th
e applicant is for information that
is not available in discrete form in writte
n documents of the
agency; and
(ba)
it does not appear from the
request that th
e applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
th
e agency could produce a written
document containing the information in
discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in th
e agency;
th
e agency shall deal with the
request as if it were
a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if th
e 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 th
e agency from its other operations.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter - that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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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 Schedule 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.
24A
Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1)
An
agency o
r Minister may refuse
a request for access to
a document if:
(a)
al reasonable steps have been taken to find th
e document; and
(b)
th
e agency or Minister is satisfied that th
e document:
(i)
is in the
agency's o
r Minister's possession but cannot be found; or
(ii)
does not exist.
Document not received as required by contract
(2)
An
agency may refuse
a request for access to
a document if:
(a)
in order to comply wit
h section 6C, th
e agency has taken contractual measures to
ensure that it receives th
e document; and
(b)
th
e agency has not received th
e document; and
(c)
th
e agency has taken all reasonable steps to receive the
document in accordance
with those contractual measures.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document - include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
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application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
54C
Internal Review - decision on internal review
Scope
(1) This section applies if an application fo
r internal review o
f an access refusal decision or an
access grant
decision (the original decision) is made in accordance with this Part.
Decision
(2) The
agency must, as soon as practicable, arrange for a person (other than the person who made
the original decision) to review the decision.
(3) The person must make a fresh decision on behalf of th
e agency within 30 days after the day on
which the application was received by, or on behalf of, th
e agency.
Notice of decision
(4)
Section 26 extends to a decision made under this section.
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Document Outline
