Dear Office of the Australian Information Commissioner,

On 20 March 2023, I applied for access to the original freedom of information requests received by the Office of the Commonwealth Ombudsman that are, as at 20 March 2023, the subjects of applications for Information Commissioner review (e.g. if 10 of the FOI requests that the Office of the Commonwealth Ombudsman has received are subjects of applications for IC review as at 20 March 2023, then please provide those 10 FOI requests): https://www.righttoknow.org.au/request/f....

No acknowledgement of receipt was sent to me within 14 days from the Office of the Commonwealth Ombudsman, as is required under section 15(5)(a) of the FOI Act.

Concerned by the failure to acknowledge receipt, I sent the Commonwealth Ombudsman an email on 15 April 2023 request acknowledgement of receipt of my FOI request: https://www.righttoknow.org.au/request/f....

Both my request and my follow-up email have been ignored.

The administrators on Right to Know suggest that “If any other public authorities or publicly owned companies are involved, then make Freedom of Information requests to them.”

I assume that you have access to these original requests since they are normally provided to you upon an IC review request being submitted.

Since my request to the Ombudsman has been ignored, I am applying to the OAIC for the documents that I requested from the Commonwealth Ombudsman.

According to the 2021-2022 legal services expenditure report submitted to the Office of Legal Service Coordination (https://www.righttoknow.org.au/request/2...), the internal legal services expense for the Office of the Commonwealth Ombudsman for the 2021-2022 financial year was $785,388. That is an increase of $415,492 on the previous financial year, in which the internal legal services expense for the Office of the Commonwealth Ombudsman was $369,896.

One of the reasons for the increase in internal legal expenses between the 2020-2021 and 2021-2022 financial years is listed as “increasing workload particularly in Freedom of Information requests and OAIC review” in the 2021-2022 legal services expenditure report. I would like to know just what kind of FOI requests the Office of the Commonwealth Ombudsman is receiving that would justify a more than $400,000 increase in internal legal services expenditure in a single financial year.

Under the FOI Act I would like access to the original freedom of information requests received by the Office of the Commonwealth Ombudsman that are, as at 19 April 2023, the subjects of applications for Information Commissioner review (e.g. if 10 of the FOI requests that the Office of the Commonwealth Ombudsman has received are subjects of applications for IC review as at 19 April 2023, then please provide those 10 FOI requests).

Please provide the requested documents by return email.

Yours faithfully,

Stephen

Dear Jessica Summerhill,

Thank you for your email.

With respect, I do not think your decision to transfer was the correct one in law.

I draw you attention to the judgment in Bienstein v Attorney-General [2007] FCA 1174. At [32]-[37], the Court stated:

32                  There appears to be no authority on the central question in relation to the construction of s 16(1)(b).  Nor does the Explanatory Memorandum in relation to the Bill that led to the passage of s 16 assist.  As is commonly the case, the Explanatory Memorandum simply echoes the words of the relevant statutory provisions.  It is therefore necessary to determine the proper construction of s 16(1)(b) by ascertaining the intention of the legislature by reference to the terms of the provision itself, the context provided by other provisions of the FOI Act and the underlying purpose or object of the legislation.

33                  In its own terms, s 16(1)(b) authorises a transfer of a request for access to a document only where the subject-matter of “the document” is more closely connected with the functions of an agency other than the recipient of the request.  It is important that regard is not to be had to the subject-matter of the request, but to the subject-matter of “the document”.  In some cases, there will be no difference between the subject-matter of a particular document and the subject-matter of the request for it.  A person may invoke the right given by s 15(1) to make a request for access to a document in the knowledge that a specific document exists, and using terms in the request that are apt to describe that specific document.  For example, the document may be described by reference to its title, its date, the parties to it (in the case of correspondence) or its contents.  More commonly, however, a person seeking to invoke the right to request access to a document will not know precisely what documents exist.  The request will be in terms of a description of the kinds of documents sought by the person making the request.  In the first type of case, in which a specific document is sought, it would be possible for the recipient to judge from the terms of the request whether the document sought was more closely related to the functions of another agency.  From the description in the request, the recipient could reach the necessary conclusion to enable a transfer to be made.  By contrast, where documents are sought by general description, it may be impossible to make a decision about the subject-matter of each such document without ascertaining whether the recipient of the request holds any such documents and, if so, considering the subject-matter of each of them.  This consideration points to the proposition that, at least in some cases, a request cannot be transferred pursuant to s 16(1)(b) without the agency receiving it ascertaining whether it has documents to which access is sought by means of the request.

34                  Overall, s 16 of the FOI Act applies to transfers in four situations.  The situations that are the subject of subss (2) and (3) give rise to a duty to transfer.  The word “shall” is used.  By contrast, in relation to the two conditions of transfer in subs (1), the word “may” is used, connoting that the exercise of discretion is involved.  Each of the four situations in which a transfer is required or authorised focuses on the word “document”.  By s 16(1)(a), the power to transfer may be exercised only where the document is not in the possession of the recipient agency but, to the knowledge of the recipient agency, is in the possession of another agency.  The recipient of the request could not exercise this power to transfer without knowing that it did not have the document sought in its possession.  It could only know the answer to that question if it had taken steps to ascertain what documents it did have answering the description in the request.  Paragraphs (a) and (b) of s 16(1) appear to be alternatives.  Between them, they exhaust the ambit of the discretionary power to transfer a request.  Each of those paragraphs contemplates a specific document the subject of a request.  Which one of the paragraphs will apply depends on whether the document is or is not in the possession of the recipient of the request.  Before a request can be transferred pursuant to s 16(1), it must be the case that the document is not in the possession of the recipient of the request, in which case para (a) applies, or it is in the possession of the recipient of the request and its subject-matter is more closely connected with the functions of another agency, in which case para (b) applies.  The question whether a document is in an agency’s possession can only be answered after the agency has made any necessary search for that document, or a document answering its description.  Further, each of the duties to transfer specified in subss (2) and (3) could only be carried out if the recipient of the request was aware of what documents it had answering the description in a request and the criteria in those subsections respectively.  This is a powerful reason for concluding that the process of transferring under s 16 is one that can only be considered after the recipient of the request has become aware of the documents it has in its possession answering the description in the request, by making a search of its own records.  In this context, particularly because it refers to a “document”, rather than to a request, as do s 16(1)(a), s 16(2) and s 16(3), there is no reason to suppose that s 16(1)(b) is to be construed any differently.

35                  The context of the remaining provisions of s 16 of the FOI Act tends to confirm that a transfer can only be put into effect after an agency has conducted a search to ascertain whether or not it has the document sought.  Section 16(3A) provides that a request for more than one document (which would include a request for documents by description of categories) is to be treated, for transfer purposes, as a request for each of those documents separately.  In conjunction with s 16(1)(b), this has the effect that the request can only be transferred to the extent that it relates to each specific document of which it can be said that the subject-matter is more closely connected with the functions of another agency.  Section 16(3A) makes it clear that, where the request describes a category or categories of documents to which access is sought, s 16(1)(b) provides no authority for the transfer of the whole of the request.  The specific subject-matter of each document answering the description in the request must be considered.  It is unlikely that this could be done without first ascertaining whether the agency receiving the request has documents answering the description.  Similarly, s 16(4) requires an agency transferring a request to another agency in any of the circumstances outlined in s 16 to send “the document” the subject of the request to the other agency “if it is necessary to do so in order to enable the other agency to deal with the request”.  Plainly, without having ascertained whether it has such a document, the transferor agency would not be in a position to comply with this requirement.

36                  The broader context of the FOI Act is also important.  It is true that there is not to be found in the provisions of the FOI Act any express imposition of a duty on the recipient of a request for access to documents to search its records to ascertain whether it has documents answering the description in the request.  Such a duty is implicit, however.  Section 11 provides a right to obtain access to documents.  Provided that a request made pursuant to s 15(1) complies with the basic requirements of s 15(2), s 15(4) imposes on the recipient of the request a duty to take reasonable steps to assist the person making the request to direct it to the appropriate agency, if the request “should have been directed” to another agency or Minister.  It is difficult to see how that obligation could be carried out unless the recipient of the request first established that it had no documents answering the description in the request.  Section 18 imposes a positive duty on the recipient of the request to give the person making the request access to the document.  Only under limited circumstances, specified in s 21(1), can such access be deferred.  The circumstances in which a request may be refused are also very limited.  Section 24 deals with requests that are so onerous that they would substantially and unreasonably divert the resources of an agency from its other operations, or interfere with the performance of a Minister’s functions.  In those circumstances, s 24(1) provides that the request may be refused “without having caused the processing of the request to have been undertaken”.  Section 24(2)(a) specifically allows an agency or Minister to have regard to the resources that would have been used in “identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister”, in determining whether to refuse to grant access to documents under s 24(1).  These provisions suggest that, where a request is not so onerous, the recipient of it is obliged to cause the processing of it to be undertaken, using whatever resources are necessary to identify, locate and collate the documents in the filing system of the agency or the office of the Minister concerned.  A refusal under s 24A is only possible if all reasonable steps have been taken to find the documents and the recipient of the request is satisfied either that the document cannot be found or that it does not exist.  A refusal under s 24A is therefore impossible without a search.  Finally, there is the specific requirement in s 15(5)(b) that a decision be given on the request within 30 days, unless the time is extended under s 15(6).  It is hard to see how a decision can be given about whether to grant or refuse access to documents requested (aside from onerous requests of the kinds referred to in s 24(1)), unless the recipient of the request took steps to find out what documents it had and to consider whether they are exempt under various provisions of the FOI Act and, if not, whether deletion of exempt matter or irrelevant material under s 22 is necessary.  In this context, it is unlikely to have been the intention of Parliament that the power to transfer a request under s 16(1)(b), alone among all of the obligations that fall on the recipient of a request, was intended to be exercisable without any step being taken to ascertain whether the recipient of the document has documents answering the description in the request.

37                  If the terms of s 16(1)(b) and its context do not lead to the conclusion that s 16(1)(b) should be construed as I have suggested, then reference to the legislative purpose of the FOI Act makes that conclusion abundantly clear.  The purpose of the FOI Act is explicit in s 3(1).  It is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by”, among other things, creating a general right of access to information in documentary form in the possession of Ministers and other agencies, “limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held”.  Not only is this purpose so expressed, but Parliament in s 3(2) of the FOI Act has expressed its intention that the provisions of the FOI Act are to be interpreted so as to further that object.  If s 16(1)(b) were to be construed as permitting the recipient of a request to transfer that request without first ascertaining whether it had documents answering the description in the request, there would be a considerable gap in the right of access to information given by the FOI Act.  To the extent to which s 16(1)(b) may be regarded as ambiguous, it should be construed in accordance with the legislative purpose expressed in s 3.

As such, it was not open to the OAIC to simply transfer the request to the Office of the Commonwealth Ombudsman without first satisfying itself that documents requested do not actually exist in its possession because:

“Before a request can be transferred pursuant to s 16(1), it must be the case that the document is not in the possession of the recipient of the request, in which case para (a) applies, or it is in the possession of the recipient of the request and its subject-matter is more closely connected with the functions of another agency, in which case para (b) applies.  The question whether a document is in an agency’s possession can only be answered after the agency has made any necessary search for that document, or a document answering its description.”

The context of my request makes clear that the Office of the Commonwealth Ombudsman failed to address my original request of 20 March 2023 in time (https://www.righttoknow.org.au/request/f...), and it was only because the Office of the Commonwealth Ombudsman failed to address my request that a request was made to the Office of the Australian Information Commissioner.

In future, please ensure that you take cognisance of judgments of the Federal Court of Australia. They form part of the law of Australia.

Yours sincerely,

Stephen

Dear Jessica Summerhill,

I am writing to notify you that the Commonwealth Ombudsman has failed to make a decision in respect of the FOI request that you transferred to his office. In fact, the Commonwealth Ombudsman or his staff have not even acknowledged the FOI request.

As you noted in your correspondence of 27 April 2023, a decision was due on 19 May 2023. I have not received a decision. I have applied for IC review of the refusal decision deemed to have personally been made by the Commonwealth Ombudsman. The IC review reference is MR23/00626.

Yours sincerely,

Stephen

Dear Jessica Summerhill,

By way of update, the Commonwealth Ombudsman has failed to make a decision in respect of the FOI request that you transferred to his office. In fact, the Commonwealth Ombudsman or his staff have not even acknowledged the FOI request. It has been 120 days since you transferred this FOI request to the Office of the Commonwealth Ombudsman for processing.

As you noted in your correspondence of 27 April 2023, a decision was due on 19 May 2023. You may recall that I applied for IC review of the refusal decision deemed to have personally been made by the Commonwealth Ombudsman; the IC review reference is MR23/00626.

120 days on, and I still have not received a decision. Could somebody in the OAIC prompt the Ombudsman's staff to at least acknowledge this transferred request?

Yours sincerely,

Stephen