Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982**

Freedom of Information - Whether reasonable steps taken to find documents - Whether an agency could produce a written document containing the information in discrete form - Whether a computer program ordinarily available - Whether producing the document would substantially and unreasonably divert the resources of an agency from its other operations - (CTH) Freedom of Information Act 1982 ss 17 and 24A

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Taxation Office (the ATO) of 10 March 2021. I substitute my decision that:
   • The ATO has not met its onus to establish s 17 of the FOI Act does not apply to the applicant's request for certain information about telephone discussions between particular ATO staff members.[1] Accordingly, a document containing the requested information is deemed to be in the ATO's possession.
   • The ATO has otherwise taken all reasonable steps to locate documents relevant to the applicant's access request and other documents cannot be found or do not exist.
2. The ATO must create the document referred to above at paragraph [1] and provide a response to the applicant in accordance with s 26 of the FOI Act.
3. Within 30 days of this decision the ATO must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision discusses the application of ss 24A and 17 of the FOI Act to an access request by a staff member for documents related to personnel and a recruitment process. It is primarily of interest to the parties in relation to the specific documents sought but may also have broader application in similar circumstances.

1. In 2021, the applicant applied to the ATO for access to all records relating to 2 other freedom of information (FOI) requests made by the applicant to the ATO. Those requests relate to a recruitment process that the applicant undertook and personnel records.
2. The ATO identified 22 documents within the scope of the applicant's request. It granted full access to 16 documents and access in part to the remaining 6 documents subject to deletions under ss 22, 47E(c), and 47E(d) of the FOI Act.
3. The applicant contests the searches undertaken by the ATO and maintains that further documents should have been identified. It is apparent from their Information Commissioner review (IC review) application, that the applicant does not contest the deletions under s 22, 47E(c), and 47E(d) of the FOI Act.
4. Therefore, the issue to be decided in this IC review is whether the ATO has taken all reasonable steps to identify documents within the scope of the request and that documents cannot be found or do not exist (s 24A). In addition, given part of the applicant's request seeks information rather than a discrete document, I have considered whether the ATO was required to produce a document containing that information in accordance with s 17(1) of the FOI Act.
5. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[2]
6. In making my decision, I have had regard to the following:
   • the ATO's decision and reasons for decision of 10 March 2021
   • the evidence of searches undertaken by the ATO
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
   • the parties' submissions.

Whether reasonable steps taken to find documents (s 24A)

1. Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that a document cannot be found or does not exist.
2. The ATO maintains that it has undertaken reasonable searches (s 24A) and further documents do not exist or cannot be found (s 24A). During this IC review, the Office of the Australian Information Commissioner (OAIC) issued a notice under s 55V of the FOI Act which required the ATO to undertake further searches.
3. In response the ATO noted that:
   • various staff members have left the ATO but where possible, their records were searched by the Talent Acquisition Team and provided to the applicant in response to this request[6]
   • the remaining Selection Advisory Committee member conducted an additional search and was unable to locate further documents, and
   • the staff member named in the notice conducted searches and does not hold records relating to the request given the time that has elapsed since the 2016 recruitment process.
4. As noted above, the applicant submits the ATO has not conducted reasonable searches. Relevantly, the applicant submits that the ATO has failed to identify all relevant documents within the scope of their request. In particular, the applicant refers to expecting to receive:
   • emails and documents relating to a right of reply process in September 2016
   • records of discussions between the delegate and the applicant's former Assistant Director, and the applicant's former manager
   • further documents (including notes and diary entries) from the ATO's Talent Acquisition staff, the delegate, and provided by a delegate, and the applicant's manager
   • additional records pertaining to the 'last several months of 2016', and
   • other records of correspondence.[7]

1. The ATO has provided the OAIC with details of the searches undertaken in relation to the request and the outcome of those searches. I have considered these records, which the ATO provided to the OAIC during this IC review. These indicate that the ATO undertook:
   • searches through its records management systems, relevant email accounts, relevant home drives, and
   • consultation with persons from the relevant business areas.
2. Those records also identified the:
   • date searches were undertaken
   • persons who undertook the searches
   • locations searched
   • search terms used
   • outcomes of the searches undertaken, and
   • the reasons no further documents exist (in particular, the time that has elapsed since the relevant recruitment process, relevant staff departures, and that persons in other business areas that are involved in recruitment exercises are asked to destroy their copies of documents 12 months after the recruitment exercise).
3. Finally, I have also considered the scope of the applicant's request which seeks records relating to the subject matters of 2 prior freedom of information requests. The first part of the applicant's request is limited to communications between the delegate and all other parties in that recruitment process. The second part of the applicant's request seeks all 'ATO PIES'[8] records including attachments and associated emails held by ATO staff between 31 May 2018 to 31 March 2020.
4. In their submissions, the applicant provided a copy of a 'right of reply' email sent from an ATO Talent Acquisition staff member in 2016 that had not been provided to them in response to their request. However, having reviewed this document it is clear that it does not fall within the scope of the applicant's request reasonably construed. This is because it is not a communication with or from the delegate for the purposes of the first part of the request, nor does it fall within the time period of 31 May 2018 to 31 March 2020 for the purposes of the second part of the applicant's request.

1. I find that the ATO has taken all reasonable steps to locate documents relevant to the applicant's access request and that other documents cannot be found or do not exist (pending my consideration of s 17 below).

Whether a document is required to be produced under s 17(1)

1. Section 17 obliges an agency to produce a written document if it can be produced by using a 'computer or other equipment that is ordinarily available' to the agency for retrieving or collating stored information (s 17(1)(c)), except where producing the document would substantially and unreasonably divert the resources of an agency from its other operations (s 17(2)). I have set out the main requirements of s 17, and the relevant FOI Guidelines, in Annexure A.
2. The Full Federal Court in Collection Point Pty Ltd v Commissioner of Taxation[9] (Collection Point) considered the interaction between the two limbs of s 17:

There is considerable potential overlap between factual matters relevant to the questions under s 17(1)(c)(i) (whether the use of a computer or other equipment is ordinarily available) and s 17(2) of the Act (whether compliance with the obligation to produce the requested document would be a substantial and unreasonable diversion of the agency's resources). The two inquiries nevertheless arise sequentially. The satisfaction of the conditions under s 17(1) is a pre-condition for the application of s 17(2). Nor, despite the overlap, are the questions interchangeable. The satisfaction of the conditions of s 17(1)(c)(i) does not ensure satisfaction of the conditions of s 17(2), and vice versa.

I also require details of telephone / email discussions between the Delegate and my management at the time. This needs to include the dates, times and length of the telephone discussions (or other electronic service) between the Delegate and my management at the time. That information can be easily retrieved from the ATO's IT and telephone systems if required. ... > > (emphasis in original)

4. In summary the ATO submitted it is unable to produce the document 'by the 'ordinary' use of its computer systems because:
   • The only ATO staff who are able to source this information are within the ATO's Fraud Prevention and Internal Investigations (Fraud Prevention) and IT Security teams. [10]
   • They would need to construct new data queries and undertake onerous analysis of a large amount of data[11]. The ATO submitted these tasks would unreasonably divert the members of the Fraud Prevention team from their normal duties which involve preventing, detecting and responding to internal fraud and corruption.[12]
5. The applicant made extensive submissions which I have considered. In summary, the applicant relevantly submitted:

• The manner and wording of the ATO's submissions suggests the work to be much more complex and time-consuming than what it is. For instance, the ATO noted how onerous it would be to identify the telephone extensions of the relevant staff, especially after they have left the ATO, when that information is contained within the documents released to the applicant.

• Their request for information has been specific in the sense that it names the relevant individuals and the timeframe during which the individuals would have been in contact.
  • The ATO employs more than 20,000 personnel across the country. The applicant's former manager was not familiar with the delegate prior to their telephone conversation because they had no reason to interact with one another considering they were working in different states and in unrelated hierarchical chains. The applicant expects the amount of correspondence to be very small in number considering the contact was for a specific purpose within a specific period.

6. I have considered the parties' submissions as well as the nature of the information requested. In my view the ATO has provided insufficient particulars or evidence to support that it is unable to produce a document containing the requested information by using a 'computer or other equipment that is ordinarily available' to it.
7. The ATO's submissions indicate that the Fraud Prevention and IT Security teams are able to source the information sought by the applicant using its computer systems. While the ATO noted that it would be onerous to do so and divert the Fraud Prevention team from its normal duties, it has not, in my view, provided sufficient particulars or evidence of what these tasks entail to support that producing the requested document would require a departure from its ordinary or usual conduct and operations.
8. The ATO submitted that the Fraud Prevention team's duties do not involve interrogating audit logs to produce documents in response to FOI requests. In my view, noting what I have said above at [25], it would not be a departure from the agency's ordinary or usual operations for staff with a specialist knowledge of the agency's computer systems, who are not part of the FOI processing area, to undertake tasks associated with search and retrieval for the purposes of responding to an FOI request. In any case, the ATO did not make similar submissions in relation to the IT Security team, which, it advised, also includes staff members who are able to source the requested information.
9. For similar reasons I do not consider that the ATO has discharged its onus of demonstrating that producing the document would substantially and unreasonably divert its resources from its other operations (s 17(2)). The ATO did not provide a breakdown of the time it would take to produce the document, or evidence from the relevant teams to support its submission that producing the document would substantially divert the ATO from its other operations. While I acknowledge the passage of time, it was open to the ATO to create a document containing the requested information at the time of the request.
10. While the ATO submitted producing the document would unreasonably divert the members of the Fraud Prevention team from their normal duties, it did not address the capacity of the IT security team, which, it advised, also includes staff members who are able to source the requested information.

1. For the above reasons I consider the ATO has not met its onus to establish s 17(1) of the FOI Act does not apply to the applicant's request for certain information about telephone discussions between particular ATO staff members.[13] Accordingly, a document containing the requested information is deemed to be in the ATO's possession.

Acting General Manager Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Whether reasonable steps taken to find documents (s 24A)

Section 24A of the FOI Act requires that an agency take 'all 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 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.

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.[14]

(a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency;

(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and

(ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and

(c) the 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 the agency;

the 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 the agency had such a document in its possession.

(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

The right of access under the FOI Act is to existing documents, rather than to information... The FOI Act does not require an agency or minister to create a new document in response to an FOI request, except in the limited circumstances set out in ss 17 and 20. These circumstances arise when the FOI applicant seeks access in a different form (s 20) or where it appears that the FOI applicant seeks information that is not available in a discrete form in written documents but is stored in an agency computer system rather than in a discrete form (see Part 3 of these Guidelines).[15]

As stated by the Court in Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 (Collection Point) at [37] - [39], subsections 17(1) and 17(2) are to be applied sequentially:

Section 17(1) of the Act specifies particular conditions in which an agency's obligation to provide access to requested information will arise although it would not otherwise be imposed under the Act. Section 17(2) specifies the circumstances in which the agency will be exempt from compliance with the obligation under s 17(1).

The language and structure of s 17 and its operation within the Act as a whole make clear that the preconditions of the existence of the agency's obligation are independent of, and distinct from, the circumstances exempting the agency from compliance.

There is considerable potential overlap between factual matters relevant to the questions under s 17(1)(c)(i) (whether the use of a computer or other equipment is ordinarily available) and s 17(2) of the Act (whether compliance with the obligation to produce the requested document would be a substantial and unreasonable diversion of the agency's resources). The two inquiries nevertheless arise sequentially. The satisfaction of the conditions under s 17(1) is a pre-condition for the application of s 17(2). Nor, despite the overlap, are the questions interchangeable. The satisfaction of the conditions of s 17(1)(c)(i) does not ensure satisfaction of the conditions of s 17(2), and vice versa.[16]

In relation to what is 'ordinarily available', the Court in Collection Point [2013] FCAFC 67 stated the following:

In our opinion, the computer referred to in s 17(1)(c)(i) is not merely computer hardware. Rather, it means a functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available.

Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to produce a document unless the effective and comprehensive means of doing so are ordinarily available to it for the specified purpose. In that context, the computer or other equipment ordinarily available for the specified purpose must be capable of functioning independently to collate or retrieve stored information and to produce the requested document.

In our view, however, while an "ordinarily available" computer or "other equipment" is not limited to that currently in the agency's possession, it does not include that which is or may become available to the agency for the specified purpose only outside the ordinary course of its operations. Whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency's ordinary or usual conduct and operations.

It follows that in our opinion, the need for a new computer program to enable the computer ordinarily available to the agency for retrieving or collating stored material to produce the requested document is a fact capable of meaning that the agency cannot, by the use of a computer ordinarily available, produce the requested document.[17]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

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 at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] Dates, times and length of telephone discussions between the delegate and the applicant's management at the time.

[3] Sections 17 and 24A as set out in Annexure A.

[4] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[6] The ATO confirmed that due to the length of time that has elapsed one of those individuals left the ATO, their records no longer exist.

[7] Emails, electronic notes in Microsoft Word or other format, Microsoft Office Communicator and Jabber messages between staff, logged keystrokes during the time of the relevant events, and other types of information.

[8] The ATO advised PIES is a system used to manage employee records.

[9] [2013] FCAFC 67 (Collection Point) at [37] - [39].

[10] The ATO advised the records are contained within the ATOs broader Centralised Audit Logging (CAL) system, which provides a central repository for all ATO systems and as such, contains tens of millions of rows of data.

[11] The ATO advised this would include conducting a further analysis and a comparison of phone numbers to determine whether the numbers belong to staff in the applicant's managerial line. Given these staff are no longer with the ATO, and their internal phone numbers have been reallocated or archived, there would be further work to determine which phone line belonged to each individual.

[12] The ATO advised its Fraud Prevention team is a small, independent internal assurance function that prevents, detects and respond to internal fraud and corruption through intelligence, detection and investigation activities. Their role is not to interrogate audit logs of ATO staff phone calls so that documents can be created and provided in response to an FOI request of another ATO staff member.

[13] Dates, times and length of telephone discussions between the delegate and the applicant's management at the time.

[14] FOI Guidelines at [3.88] - [3.89]. For further information, see FOI Guidelines at [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.

[16] For more information, see the FOI Guidelines at [3.210] - [3.216].

[17] Collection Point [2013] FCAFC 67 at [43] - [44], [48] and [52].