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

Freedom of Information - Searches ― Respondent no longer maintains documents cannot be found or do not exist ― (CTH) Freedom of Information Act 1982 s 24A

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Health and Aged Care (the Department) of 24 March 2021. I substitute my decision that documents falling within scope of the request have been found and do exist.
2. Within 30 days of this decision, the Department must provide a response to the applicant in accordance with s 26 of the FOI Act in relation to documents it has identified via its further searches and advise whether it has fully implemented my decision.[1]

1. This decision sets aside and substitutes the access refusal decision of the Department under s 24A of the FOI Act in circumstances where the Department no longer maintains that documents cannot be found or do not exist.

1. On 15 February 2021, the applicant requested certain documents relating to COVID-19.
2. On 24 March 2021, the Department made the decision to refuse access under s 24A of the FOI Act on the basis that documents within scope of the request cannot be found or do not exist.[2]
3. During the course of the IC review, the Office of the Australian Information Commissioner (OAIC) issued the Department with a direction under s 55(2)(e) of the FOI Act directing it to provide details of searches for documents within scope of the request.
4. The Department subsequently undertook further searches. In summary, the Department advised the OAIC:
   • it had identified a total of 110 documents
   • some of these documents were duplicates, resulting in 89 unique documents within the search parameters for the specified period
   • while the majority of the documents are irrelevant to the request, 12 documents are relevant to the request.[3]
5. Initially, the Department indicated it intended to make a revised decision under s 55G of the FOI Act in relation to the additional documents. However, on 11 April 2025, the Department advised it was not in a position to consider a revised decision at that time.[4]
6. Noting the Department no longer maintains that documents cannot be found or do not exist, I set aside the Department's decision and substitute my decision that documents falling within scope of the request have been found and do exist.

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.

There are two elements that must be established before an agency or minister can refuse a request for access to a document under s 24A:

• the agency or minister must have taken all reasonable steps to find the document, and
• the agency or minister is satisfied that the document cannot be found or does not exist.

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] For examples of similar decisions, see 'AFC' and Australian Federal Police (No.2) (Freedom of information) [2023] AICmr 106 (7 November 2023) and 'ATA' and Department of Veterans Affairs (Freedom of information) [2025] AICmr 4 (8 January 2025).

[2] The applicant agreed to an extension for the Department to process the FOI request by 24 March 2021.

[3] Department's response of 11 April 2025.

[4] Mainly due to the number of documents and the time required to consult with third parties.