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OAIC reference: MR22/01812
FOI reference: PM/22/006IC
IC Review – MR22/01812 – BE and Prime Minister of Australia
Submissions on behalf of decision-maker
These submissions are made in response to the application of BE (
applicant) for Information
Commissioner (
IC) review of the s 55G decision made under the
Freedom of Information Act
1982 (
FOI Act) on 9 August 2023 on behalf of the Prime Minister of Australia.
These submissions may be shared with the applicant.
Enclosed documents
In accordance with 10.100 of the FOI Guidelines, copies of the following documents are
enclosed:
• Annexure A – copy of the original FOI request of 8 August 2022 (the terms of the
request were not modified);
• Annexure B – copies of the search requests;
• Annexure C – s 55 decision.
Summary
The s 55G decision sets out the comprehensive searches that were undertaken in response to
the applicant’s request. The steps taken identified responsive documents, which have been
provided to the applicant. Nonetheless, the applicant maintains their contention that
reasonable searches were not undertaken.
This contention should not be accepted in circumstances where the advisers with
responsibility for the relevant subject-matter area in the office (and who would reasonably
have been aware of the existence of such documents if they existed) were (1) asked to search
for responsive documents wherever they might be stored; (2) in fact provided responsive
documents that they had identified by their searches; and (3) confirmed to the decision-maker
they were not aware of any further communications the subject of the request.
The request
The applicant sought two categories of documents as follows:
1. Communication between the Prime Minister’s Office and any office holder, official or
employee of the AWU, CFMMEU or ACTU during the period 1 June 2022 to 25 July
2022 in relation to the Australian Building and Construction Commission (ABCC),
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link to page 2 link to page 2 link to page 2 link to page 2
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the Code for the Tendering and Performance of Building Work 2016 (Building Code)
or the Code for the Tendering and Performance of Building Work Amendment
Instrument (Amended Building Code).
2. Internal communications between members of the Prime Minister’s office (including
the Prime Minister) during the period 1 June 2022 to 25 July 2022 in relation to the
Australian Building and Construction Commission (ABCC), the Building Code or the
Amended Building Code.
Relevant principles
The FOI Act requires that ‘all reasonable steps’ be taken to find documents responsive to an
FOI request.
1 Further, the FOI Guidelines outline that:
• ‘reasonable’ 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 is judged to
be appropriate or suitable to the circumstances or purpose’,
2
• what constitutes a 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,
3 and
• at a minimum, an agency or minister should take comprehensive steps to locate
documents, having regard to:
o the subject matter of the documents
o the current and past file management systems and the practice of destruction or
removal of documents, and
o the record management systems in place
o 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.
4
The revised s 55 decision
The decision-maker initially identified two documents falling with the second category of
requested documents. These documents were produced under the s 55 decision, subject to
exemptions. The applicant does not contest the exemption decision.
The s 55 decision set out in considerable detail the steps that were taken to identify any other
documents responsive to the applicant’s request. In summary:
• the two advisers in the office with responsibility for the relevant subject matter were
requested (in writing) to search their records for responsive documents. The search
request:
1 FOI Act, s 24A.
2 FOI Guidelines [3.88].
3 FOI Guidelines [3.89].
4 Ibid.
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o set out the terms of the request in full, which made clear that the request
covered all forms of documents and communications, including ‘SMS,
Whatsapp messages, iMessage and signal messages’
o requested that the advisers search their emails as well as ‘
any other storage
system you use for work records’
o provided appropriate search parameters, namely the key words ‘Australian
Building and Construction Commission’, ‘ABCC’ and ‘Building Code’ over
the relevant date range, 1 June 2022 to 25 July 2022.
• Both advisers responded that they had searched their records as requested and the
responsive documents were provided to the decision-maker.
• The decision-maker also records in the s 55 decision that the advisers confirmed to
her that, apart from the identified document, they were not aware of any other
communication falling within the terms of the request.
• The decision-maker noted that staff in the Office undertake general training about FOI
and are advised the Act applies to all types of documents (broadly defined and
including emails, documents, phone messages such as text messages, signal, whatsapp
as well as photos and videos), wherever those documents are stored.
• The decision-maker was satisfied that, having regard to their responsibility for the
relevant subject matter of the request, the two advisers ‘
could reasonably be expected
to have been involved in, or aware of, any communication the subject of [the] request
if such communications existed’.
In all of the circumstances – including the subject matter of the request; the fact that it
covered very recent events when it was received; and the searches requested of the relevant
advisers and their response – the decision maker was thus satisfied that the only documents
responsive to the request were the two documents identified.
A copy of the emails sent to the advisers, and their responses, are annexed, with personal
information redacted for privacy reasons.
Reasonable searches were undertaken
It is submitted that the s 55 decision makes clear that reasonable searches were undertaken in
all of the circumstances.
The two advisers in the office with responsibility for the relevant subject-maker were asked
to search their records for responsive documents, wherever they might be stored. The
decision-maker found that these two advisers were likely to have knowledge of the existence
of such communications, if they existed – and noted that the advisers confirmed to her they
were not aware of any further documents. Two documents were, in fact, identified as a result
of the search process. And, the decision-maker appropriately took into account the context of
the request, including its subject matter as well as the fact it was made a short time after the
period of the requested communication.
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In these circumstances, the searches that were conducted covered all the persons and systems
that would reasonably be expected to have documents responsive to the requests. If further
documents existed, it was reasonably likely that the steps taken in response to the request
would have uncovered them. No further searches were necessary.
Conclusion
For these reasons, the decision under review should be affirmed.
If you require further information to support the processing of this IC review, please contact
xxx@xxx.xxx.xx.
24 January 2024
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