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Decision not to continue to undertake an Information Commissioner
review under s 54W(a)(i) of the Freedom of Information Act 1982
Information Commissioner review applicant
BE
Respondent
Office of the Prime Minister of
Australia
Decision date
20 September 2024
OAIC reference number
MR22/01812
Respondent number
PM/22/006
Decision
I refer to the application made by BE (the applicant) for Information Commissioner review (IC
review) of a decision made by the Office of the Prime Minister of Australia (Prime Minister’s
Office) on 9 August 2023 under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
As a delegate of the Information Commissioner, I have decided to exercise the discretion
available to the Commissioner to discontinue this IC review under s 54W(a)(i) of the FOI Act.
My reasons are outlined below.
Scope of IC review
The issue to be decided in this IC review is whether the Prime Minister’s Office has taken all
reasonable steps to find documents within the applicant’s request, as required under s 24A
of the FOI Act.
Consideration of whether reasonable steps undertaken
Section 24A requires that an agency take ‘al reasonable steps’ to find a requested document
before refusing access to it on the basis that it cannot be found or does not exist.
The Guidelines issued under s 93A of the FOI Act explain:
The Act is silent on what constitutes ‘all reasonable steps’. 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 is judged
to be appropriate or suitable to the circumstances or purpose.
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
link to page 2
Agencies and ministers should undertake a reasonable search on a flexible and common-
sense interpretation of the terms of the request. 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. 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, and
• 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.
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In this context ‘reasonable’ has been understood as taking steps that are ‘not going beyond
the limit assigned by reason; not extravagant or excessive; moderate…Of such an amount,
size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose’
(see De Tarle and Australian Securities and Investments Commission (Freedom of
Information) [2015] AATA 770 at [19]).
FOI request
On 8 August 2022, the applicant made a request to the Prime Minister’s Office for access to:
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), 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. In this request a reference to the Prime Minister’s Office includes the Prime
Minister.
1 Office of the Australian Information Commissioner,
Guidelines issued by the Australian Information
Commissioner under s 93A of the Freedom of Information Act (FOI Guidelines) [3.88] — [3.89]. For further
information, see [3.85] — [3.94];
‘RD’ and Comcare (Freedom of information) [2019] AICmr 61;
‘PK’ and
Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65;
‘PI’ and
Department of Human Services (Freedom of information) [2018] AICmr 62;
‘PF’ and Department of Human
Services (Freedom of information) [2018] AICmr 59;
‘OP’ and Department of Home Affairs (Freedom of
information) [2018] AICmr 43;
Josh Taylor and Prime Minister of Australia (Freedom of information) [2018]
AICmr 42
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For the avoidance of doubt, the request includes all forms of communication including
emails (including attachments), memorandums or notes, electronic communications such as
SMS, WhatsApp messages, iMessages and Signal messages.
Prime Minister’s decision
In its original decision of 7 October 2022, the Prime Minister’s Office identified 2 documents
relevant to item (2) of the applicant’s request, which it refused access to on the basis that the
documents were exempt under s 34 of the FOI Act (Cabinet documents exemption). No
documents relevant to item (1) of the FOI request could be found.
In its revised decision of 9 August 2023, the Prime Minister’s Office granted the applicant
partial access to the 2 documents identified as relevant to item (2) of the request, with
redactions made to parts of the documents under s 34. The Prime Minister’s Office
maintained that no documents could be found relevant to item (1) of the request.
Parties’ submissions
On 6 September 2023, the applicant confirmed that they wished to proceed with a review of
the revised decision in relation to the sufficiency of searches conducted.
On 20 September 2023, the applicant made further submissions stating that the searches
appeared insufficient for reasons including that:
• the searches undertaken were limited to two advisors for unknown reasons
• their request specifical y sought communications involving the Prime Minister
directly and there is no evidence that the Prime Minister’s records have been
searched.
On 24 January 2024, the Prime Minister’s Office submitted:
• the two advisors with responsibility for the relevant subject matter were tasked
with undertaking searches of their emails and any other systems used for work
purposes, based on a key word search during the relevant date range
• in identifying relevant persons, the decision maker took into account the context of
the request, including its subject matter as wel as the fact that it was made a short
time after the period of the requested communication.
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On 25 June 2024, the OAIC requested a further submission from the Prime Minister’s Office to
address the sufficiency of the searches undertaken, noting the applicant’s request also
extended to any communications involving the Prime Minister directly.
On the same day, the Prime Minister’s Office responded, advising:
… the operating environment of the Office is such that only a small number of staff exist with
direct responsibility for the subject matter relevant to the scope of the request.
The relevant advisers who would have knowledge and awareness the subject-matter of the
request were readily identifiable, and there would be no further benefit in extending the search
request to others who are unlikely to have any awareness of the requested documents. As the
searches conducted covered all relevant persons and systems within the Office, there is no
reasonable basis for further searches to be undertaken.
On 16 July 2024, a delegate of the Commissioner issued a notice to the Prime Minister’s
Office under s 55V of the FOI Act, requiring it to undertake further searches for documents,
and requested particulars about the searches undertaken.
On 30 July 2024, the Prime Minister’s Office responded advising that the Prime Minister’s
Chief of Staff has now separately undertaken additional searches for documents relevant to
the request, but no further documents have been found as a result.
On 22 August 2024, the OAIC asked the Prime Minister’s Office to explain whether the
searches undertaken by the Chief of Staff extended to searches of the Prime Minister’s
official email account.
On 29 August 2024, the Prime Minister’s Office further responded that:
The searches undertaken by the Prime Minister’s Chief of Staff did not extend to the Prime
Minister’s official email account, however the Office has arranged for those searches to be
undertaken and no relevant documents have been identified.
A copy of the Prime Minister’s Office’s submissions of 24 January 2024, 25 June 2024 and 30
July 2024 were shared with the applicant on 4 September 2024.
Evidence of searches
The Prime Minister’s Office has provided the OAIC with details of the searches undertaken in
relation to the applicant’s FOI request and the outcome of those searches. I have considered
these records, which demonstrate that:
• two advisors, including a senior advisor, were tasked with undertaking searches of
their emails as well as any other storage system used for work records
• the Prime Minister’s Chief of Staff was tasked with undertaking searches of al
physical and electronic systems that may hold work-related communications
including emails, mobile phone(s), filing cabinets, group or home drives and
notebooks
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• the Prime Minister’s Chief of Staff undertook searches of the Prime Minister’s
official email account
• each of the relevant officers including the Chief of Staff confirmed they had
undertaken the requested searches but could not identify any further documents
relevant to the request.
I have also considered the records of the above searches undertaken by the Prime Minister’s
Office which were provided to the OAIC during the course of this IC review, which identify:
• the date searches were undertaken, in September 2022, and July 2024
• the persons who undertook the searches, including two advisors within the
Prime Minister’s Office, and the Prime Minister’s Chief of Staff
• the locations searched, which extended to the Prime Minister’s official email
account
• the search terms used, namely the key words ‘Australian Building and
Construction Commission’, ‘ABCC’ and ‘Building Code, over the requested date
range
• the outcomes of the searches undertaken, being that only 2 documents could be
located, which the applicant was provided partial access to on 9 August 2023.
Decision not to continue to undertake a review
I am a delegate of the Information Commissioner.
Under s 54W(a) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the Information Commissioner is satisfied
that the IC review application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith.
In making my decision, I have had regard to the fol owing:
i. the scope of the applicant’s FOI request dated 8 August 2022
ii. the Prime Minister’s Office’s original decision, and reasons for decision, of 7
October 2022
iii. the Prime Minister’s Office’s revised decision, and reasons for decision, of 9
August 2023
iv. evidence of searches undertaken by the Prime Minister’s Office
v. the FOI Act, in particular s 24A
vi. the Guidelines issued by the Australian Information Commissioner under s 93A
of the FOI Act to which agencies must have regard in performing a function or
exercising a power under the FOI Act, in particular paragraphs [3.85] – [3.94]
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vii. relevant case law, in particular
De Tarle and Australian Securities and
Investments Commission (Freedom of information) [2015] AATA 770, and
viii. the parties’ submissions.
Having regard to the scope of the applicant’s request, the parties’ submissions and the
Prime Minister’s Office’s evidence of searches, it appears that the Prime Minister’s Office has
taken al reasonable steps to find documents within the scope of the applicant’s request as it
was required to do by s 24A and that any further relevant documents, if they existed, would
have been found. In particular, I am satisfied that had there been any communications
involving the Prime Minister directly, or any further communications involving the Office
more broadly, that these would have been discovered through the searches undertaken by
the individuals with the relevant subject matter knowledge and with access to the Prime
Minister’s official communications.
On this basis, I am satisfied that the matter is lacking in substance.
In deciding whether to exercise the discretion not to continue to undertake a review, I have
also considered that:
• On 4 September 2024, I wrote to the applicant to advise of my intention to finalise this
IC review under s 54W(a)(i) of the FOI Act on the basis that the application is lacking in
substance for the reasons outlined above. I invited the applicant to provide reasons if
they disagreed with the proposed finalisation of this IC review by 18 September 2024.
Based on the available information, the applicant has not provided a response.
• Continuing to review this matter wil not promote the objects of the FOI Act as it wil
not facilitate access to further documents based on the searches undertaken by the
Prime Minister’s Office to date, and the outcome of those searches.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
the Commissioner’s discretion to decide not to continue to undertake this IC review under
s 54W(a)(i) of the FOI Act. I confirm that this IC review is now closed. Review rights are set out
below.
Yours sincerely
Tania Strathearn
Assistant Director
Freedom of Information branch
20 September 2024
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link to page 7
Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a decision of
the Information Commissioner if you think that a decision by the Information Commissioner not to
review or not to continue to undertake review of your IC review application under the
Freedom of
Information Act 1982 (the FOI Act) is not legally correct. You can make this application under the
Administrative Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to the Information
Commissioner for further consideration if it finds the decision was wrong in law or the Information
Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the decision
or determination to you. You may wish to seek legal advice as the process can involve fees and costs.
Please contact the Federal Court registry in your state or territory for more information, or visit the
Federal Court website a
t http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The
Ombudsman can investigate complaints about the administrative actions of Australian Government
agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC
reconsider or change its action or decision or take any other action that the Ombudsman considers is
appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit
the Commonwealth Ombudsman’s website a
t http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on th
e Access our information2 page on our
website.
2
www.oaic.gov.au/about-us/access-our-information/.
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Document Outline
