1. Under s 55K of the Freedom of Information Act 1982 ('FOI Act'), I set aside the decision of the Australian Taxation Office ('ATO') of 15 January 2021 and:
   1. find that the ATO has taken all reasonable steps to identify documents and that no further documents relevant to the applicant's access request exist or can be found in accordance with s 24A
   2. substitute my decision that the documents identified as emails number 1, 8, 9, 19, 20, 21 and 24 are relevant to the access request
   3. otherwise confirm the ATO's decision.
2. Within 28 days of this decision:
   • the ATO must provide the applicant with a copy of the documents identified as emails number 1, 8, 9, 19, 20, 21 and 24, edited only to the extent necessary to delete exempt or irrelevant material
   • 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 Information Commissioner review ('IC review') decision discusses searches (s 24A) in relation to material held by the ATO and finds that all reasonable steps were taken to locate documents within the scope of the applicant's access request. The decision also considers whether the documents that the ATO found to be irrelevant to the applicant's access request are irrelevant to the request.
2. The IC review decision discusses the application of ss 24A and 22 of the FOI Act and relevant parts of the FOI Guidelines[1] to the documents. It is primarily of interest to the parties in relation to the specific documents sought.

1. On 3 December 2019, the applicant applied to the ATO under the FOI Act for:

... access to personnel records received and produced by [named person #1] ATO Corporate held within his ATOnet account, from the period 29/08/2017 until 16 April 2018, containing and/or addressing my name(s) ... I wish to exclude from this request, general meeting invitations and other general communication sent from [named person #1] to myself which I have previously been made aware of. I am seeking information produced, received and held within [named person #1] ATOnet account, containing my name(s) in conjunction with management decisions which directly relating to my official duties within the ATO which I have not been made aware of during the requested period of time. I also wish to exclude information held within my ATO People personnel file.

1. On 14 April 2020, the ATO refused the applicant's access request under s 24 of the FOI Act, by reason that a practical refusal reason existed. This decision was set aside on IC review in 'WF' and Australian Taxation Office (Freedom of information) [2020] AICmr 63 (15 December 2020) ('WF') and the ATO was required to process the access request.
2. Pursuant to WF the ATO processed the access request and, on 15 January 2021, decided to refuse access to 24 documents ('the 24 emails') under s 22 of the FOI Act, as irrelevant to the access request, and to provide access to 10 documents ('the 10 emails') except for material redacted as exempt under s 47E(d) of the FOI Act ('the decision').
3. On 1 March 2021, the applicant requested an IC review of the decision. The applicant disputes the decision that material in the 24 emails is irrelevant to the access request and raises a concern that 'access to [the 24 emails] concerning work have not been articulated to me why they fall outside of the scope of my request'. The applicant also raises an issue that the ATO 'has not specified which information systems were searched to retrieve a document I had requested to provide independent assurance an appropriate and reasonable search was actually conducted to support a claim of no documents existing'.
4. I note that, with regard to the 10 emails, the applicant does not dispute the ATO's claim under s 47E(d) in so far as that claim relates to ATO staff telephone numbers, but raises the following concern:

The structure of [the 10 emails] indicate that word sentences have been redacted as well as mobile phone numbers, which is why I am asking for access to this information in a non-redacted format sans mobile telephone numbers. No advice has been provided to me under the specific sections of the FOI Act of why information, other than mobile phone numbers have been redacted[2].

1. With respect to the applicant's concern set out at [9] above, I have reviewed the 10 emails in unredacted form. I am satisfied from my review that the material redacted by the ATO in the 10 emails is confined to the said telephone numbers. In this light, the ATO's claim under s 47E(d) is not an issue in this IC review and I confirm this aspect of the decision.
2. Accordingly, the issues to be decided in this IC review are:
   • whether the ATO has taken all reasonable steps to find documents within the scope of the request (s 24A)
   • whether the material that the ATO found to be irrelevant under s 22(1)(a)(ii) is irrelevant.
3. In an IC review of an access refusal decision, the respondent bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[3] In making my decision, I have had regard to the following:
   • the decision and cognate reasons
   • the evidence of searches undertaken by the ATO
   • the documents at issue
   • the FOI Act[4]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[5] to which agencies must have regard in performing a function or exercising a power under the FOI Act, and
   • the parties' submissions.

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

1. Section 24A 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.
2. On 29 July 2024, in response to a request for information from the OAIC in relation to its searches, the ATO confirmed the search process set out in the decision and provided a further description of the process by which the documents at issue were located, as follows:

The scope of the applicant's FOI request sought communications between individuals. By their very nature, communications either sent or received by [named person #1] would be stored on his .PST files (as Outlook data files). The applicant's request sought "w_ord based documents, including reports produced by_ [named person #1] ... to recipients which do not include myself" (emphasis added). If a word-based document or report was produced by [named person #1] and sent to a recipient, it follows that this could have only occurred via email. As stated above, detailed searches were undertaken on [named person #1]'s .PST files to identify and extract any such emails or document attachments (including word version reports and reports) falling within the scope of applicant's request.

1. While the applicant has made a general contention in relation to the adequacy of the ATO's search for documents within scope and provided a description of the types or categories of documents that would fall within scope, they are not specific as to any particular document believed to be missing.
2. My review of the material provided by the ATO discloses to my satisfaction that all reasonable searches for documents falling within the scope of the access request have been undertaken by the agency. I am accordingly of the view that any further relevant documents, if they existed, would have been found.

1. Having regard to the scope of the access request and my review of the documents at issue (which was undertaken in light of the evidence of the ATO's searches and the related concerns raised by the applicant), I am satisfied that the ATO has taken all reasonable steps to find documents within the scope of the request as required pursuant to s 24A of the FOI Act.

1. Section 22 provides that an agency may prepare an edited copy of a document by deleting information 'that would reasonably be regarded as irrelevant to the request for access'[6]. The FOI Guidelines note in this regard that a request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used.[7]
2. In an email on 21 March 2020, the applicant refined the scope of the request as follows:

• Emails produced by [named person #1] within the requested timeframe discussing my professional character and conduct to recipients which do not include myself
• Word based documents, including reports produced by [named person #1] concerning my professional character and conduct within the specified timeframes to recipients which do not include myself for the dates already specified
• Emails and reports sent to [named person #2], ATOC from [named person #1] concerning my workplace character and conduct for the dates already specified
• Emails and reports sent to [named person #1] from [named person #2], ATOC concerning my workplace character and conduct for the dates already specified
• Emails and reports sent from [named person #1] to [named person #3], ATOP and cc'd to [named person #2] concerning my workplace character and conduct
• Emails and reports from [named person #3] to [named person #1] concerning a mediation session concerning myself and [named person #2].

1. In the decision, the ATO claims that the 24 emails were excluded as irrelevant by reason that 'they were work related emails not related to your performance or personnel issues, or did not contain management decisions relating to your official duties (using the terminology in your application)'.
2. In its submissions relevant to the 24 emails, the ATO confirmed the reasons set out in the decision, that:

The applicant's FOI request is for records containing his name in conjunction with management decisions which directly relate to his official duties within the ATO of which he has not been made aware of. The 24 emails have been excluded on the basis that they simply do not contain management decisions concerning the applicant and are outside the scope of the applicant's FOI request.[8]

1. The ATO has provided the OAIC with complete and unredacted copies of all of the documents at issue; that is, the 10 emails and the 24 emails. I have reviewed these copies of the documents at issue. In relation to the 24 emails, I find that the following emails[9] are within the scope of the access request:
   • email number 1 (dated 9/11/2017)
   • email number 8 (dated 9/11/2017)
   • email number 9 (dated 14/02/2018)
   • email numbers 19, 20, 21 (related chain dated 6/09/2017)
   • email number 24 (dated 11/09/2017).
2. I make the finding at [22] above by reason that the identified emails each contain references to the applicant in the context of their work-related activities. I am of the view that the material in these emails falls within the scope of the access request when considered in the context of the applicant's relatively wide-ranging access request and their repeated disquiet that relevant material may have been withheld. While I make no finding in relation to the latter, I consider the ATO's position that relevant material is confined to 'management decisions concerning the applicant' as an unreasonably narrow position to take in these circumstances, particularly in light of the broad and beneficial objects of the FOI Act.
3. Other than as set out at [22] and [23] above, I accept the ATO's submission at [21] above with regard to the balance of the 24 emails excluded from scope by the ATO under s 22.

1. For the above reasons, I find that the ATO has not discharged its onus to demonstrate that the 24 emails are irrelevant in total. Having considered the scope of the request, the FOI Guidelines and the objects of the FOI Act, I find that emails number 1, 8, 9, 19, 20, 21 and 24 of the 24 emails are relevant to the access request.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 22 of the FOI Act authorises an agency to prepare and to give an applicant access to an edited copy of a document if:

• an agency or Minister decides:
  • to refuse to give access to an exempt document (s 22(1)(a)(i)), or
  • that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access, and
• it is possible for the agency or Minister to prepare an edited copy of the document (s 22(1)(b)), and
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and
• it is not apparent, from an applicant's request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)).

A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used.[10]

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. In this regard the FOI Guidelines state:

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.[11]

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] Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act.

[2] Applicant's email of 23 August 2022.

[4] Sections 22 and 24A of the FOI Act as set out in Annexure A.

[5] 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] Subparagraph 22(1)(b)(ii) of the FOI Act.

[7] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

[9] Individual email numbers are per the schedule to the ATO's submissions of 29 July 2024.

[10] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

[11] 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.