Freedom of Information - Whether reasonable steps taken to find documents - Whether material in the documents is irrelevant to the request - Documents to which secrecy provisions of enactments apply - Freedom of Information Act 1982 ss 24A, 22, and 38

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of Services Australia of 4 April 2021. I substitute my decision that:
   • Parts of the additional documents[1] and a call recording which Services Australia identified in its searches as being out of scope of the request, are within scope of the applicant's request.[2]
   • Services Australia has not met its onus to demonstrate that the material it deleted from the documents at issue under s 22 is irrelevant to the request.
   • The documents at issue, including the material Services Australia deleted under

s 22, the parts of the additional documents, and the call recording, are exempt under s 38. 2. The effect of my decision is that Services Australia is not required to give the applicant access to the documents, additional documents or the call recording.

1. This decision mainly discusses ss 24A and 38 of the FOI Act in the context of the secrecy provisions that apply to child support related material held by Services Australia. It sets aside Services Australia's decision under s 24A that additional documents cannot be found or do not exist but finds the secrecy provisions exemption (s 38) applies to the documents, additional documents and a call recording.

1. In summary, the applicant sought advice received from 'another party' referenced in a letter to a named third party.[3]
2. In particular, the applicant requested:

Any an [sic] all documentation of the advice receieived [sic] from "another party" as referenced in the letter of 28 January 2021 to [named third party]. This should include anything submitted in writing, records of telephone calls including time, date and participants, and any internal correspondence related to the matter.

3. In summary, Services Australia maintains that it has taken all reasonable steps to search for documents in scope of the request and no additional documents in scope exist or are able to found (s 24A), certain material is irrelevant, and the documents (as well as any additional documents) are exempt under the secrecy provisions exemption (s 38).
4. In summary, the applicant contends Services Australia has narrowly interpreted the request, has not taken all reasonable steps to search for documents in scope and additional documents exist. The applicant also contends that the documents at issue should be released.
5. The issues to be decided in this IC review are therefore whether:
   • Services Australia has taken all reasonable steps to search for documents in scope and additional documents do not exist or unable to be found (s 24A)
   • certain material is irrelevant (s 22)
   • the documents are exempt under s 38
6. In making my decision, I have had regard to the following:
   • Services Australia's original decision and internal review decision and reasons for those decisions
   • the documents at issue
   • records of searches undertaken by Services Australia
   • the FOI Act
   • relevant provisions in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act)
   • 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 (the FOI guidelines)
   • the parties' submissions.

Whether additional documents are unable to be found or do not exist (s 24A)

1. Before an agency or minister can refuse a request for access to a document under s 24A, it must have taken all reasonable steps to find the document, and be satisfied that the document cannot be found or does not exist.
2. The applicant claims that Services Australia did not adequately search for documents relevant to the request. In their IC review application, the applicant said:

I had telephone contact on a number of occasions regarding being provided information regarding this matter prior to submitting a response, internal notes and responses would have to exist. I lodged a complaint about this matter again internal documents would have to exist.

3. Services Australia submitted it has taken reasonable steps to search for documents within scope of the request and it has identified all relevant documents. Services Australia provided records of its searches to the Office of the Australian Information Commissioner (OAIC).
4. Services Australia identified additional documents and an audio recording, which it submitted are out of scope of the request. In summary, Services Australia submitted:
   • the additional documents are not within scope as they are not from the record of 'another party' but from the third party's own record
   • based on the types of documents specified by the applicant (anything submitted in writing, records of calls, etc), information in the third party's Centrelink record would not be in the scope of what the applicant is seeking.
   • records of telephone calls refers to written documentation only, that is file notes of phone calls as opposed to audio call recordings
   • internal correspondence would only be in scope to the extent that it refers to the advice referenced in the letter.
5. In summary, the applicant submitted a reasonable interpretation of the terminology "internal correspondence" would be written records of communication held regarding the progression of this matter. Detailed knowledge of the method of communication used internally cannot be a necessary requirement of an application.
6. I have considered the parties' submissions. For completeness, I am generally satisfied from Services Australia's submissions and evidence, as well as my review of the documents, additional documents and call recording, that Services Australia has taken all reasonable steps to search for documents in scope. The remaining issue is whether the additional documents and a call recording which Services Australia identified in its searches are within scope of the applicant's request.
7. It is apparent that the applicant sought the advice which Services Australia received from another party that is mentioned in the letter sent to the third party. This request does not, in my view, preclude documents held on the third party's Centrelink record. In relation to the second sentence of the request, a flexible and commonsense interpretation, and their use of the words 'This should include', suggests that the applicant was not attempting to confine their request to those documents. In my view, internal correspondence, telephone contact with the applicant and correspondence with them about their complaint is relevant to the extent that it documents the advice referenced in the letter.
8. I have reviewed the additional documents and considered the phone call in the context of the request. It is apparent that some parts of the additional documents, and the entirety of the call recording, document the advice referenced in the letter. Having regard to the wording of the request and the content and context of the documents sought, I consider that the scope of the request reasonably included these parts of the additional documents and the audio recording.

1. I consider certain parts of the additional documents[4], and the entirety of the call recording, are in scope of the request. On this basis I set aside Services Australia's decision under s 24A that additional documents cannot be found or do not exist.
2. I have considered Services Australia's submission that the parts of the additional documents and the call recording are exempt under s 38 below.

1. Services Australia deleted material from the documents at issue as irrelevant to the scope of the applicant's request. It did not specifically address the deletions under s 22 in the decision under review.
2. I have considered the parties' submissions in relation to out of scope material more generally (as summarised above at [11] - [14]). The consideration set out above in relation to scope at [15] also applies in this context. Having regard to the content and context of the documents, and in particular that they document the advice referenced in the letter, I am not satisfied that Services Australia has met its onus to demonstrate that the material is irrelevant.

1. Having considered the scope of the request, I find that Services Australia has not met its onus to demonstrate that the material in the documents at issue which it deleted under s 22 is irrelevant.

Documents to which secrecy provisions apply (s 38)

1. Services Australia maintains the documents at issue, as well as the parts of the additional documents and the call recording, are exempt under s 38 of the FOI Act.
2. The requirements for s 38 of the FOI Act are discussed in depth in AFV and Services Australia (no.1) (Freedom of Information) [2023] AICmr 125 from [36]-[37].
3. Schedule 3 of the FOI Act specifies s 16(2)(b) of the Registration and Collection Act and s 150(2)(b) of the Assessment Act.
4. In considering the application of s 38 of the FOI Act to the material and documents at issue, I have first considered:
   • In relation to s 38(1), whether disclosure of the material to the applicant is prohibited under s 16(2)(b) of the Registration and Collection Act and/or s 150(2)(b) of the Assessment Act, and
   • whether the exception in s 38 of the FOI Act applies.

Whether disclosure of the material to the applicant is prohibited

1. Paragraph 16(2) of the Registration and Collection Act and s 150(2) of the Assessment Act are identical in their terms and relevantly provide:

(2) Subject to this section, a person to whom this section applies must not: > > (a) make a record of any protected information; or

(b) whether directly or indirectly, communicate to a person any protected information concerning another person.

1. 'Protected information' is defined in s 16(1) of the Registration and Collection Act and s 150(1) of the Assessment Act, which are identical in their terms, as follows:

(a) information that:

(i) concerns a person; and

(ii) is disclosed to or obtained by another person in the course of, or because of, the other person's duties under of in relation to this Act; or

(b) information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

Section 150 of the Assessment Act and section 16 of the Registration and Collection Act are secrecy provisions that restrict the communication of 'protected information' and specify when and to whom this type of information can be lawfully released.

In practice, these secrecy provisions create a strict privacy regime when applied to child support documents that are the subject of FOI requests, such that third party protected information cannot be disclosed by the agency. This is the case even when the information concerns an FOI Applicant, was provided by an FOI Applicant or could reasonably be assumed to be known to an FOI Applicant.

1. Subsections 16(3) and 16(4) of the Registration and Collection Act and the Assessment Act both contain provisions that do not prevent protected information being communicated in specified circumstances. Services Australia submitted:

The general prohibition on the communication of third party protected information is subject to specific exemptions provided by section 150(2)(b) of the Assessment Act and section 16(2)(b) of the Registration and Collection Act. The exceptions relate to the following: > > (a) where disclosure is for the purpose of the Assessment Act or the Collection Act > > (b) consent > > (c) correcting mistakes of fact that risk the integrity of the administration of the Assessment Act or the Registration and Collection Act > > (d) briefing a minister > > (e) assisting to locate a missing person > > (f) assisting with administering a deceased estate, or > > (g) establishing the death of a person.

2. In summary, the applicant submitted:
   • The personal information, being the identity of the provider of the information to Services Australia, is not protected information as this has been openly discussed with the applicant and the identity of this person is known. The protected information concerns the third party and their minor child for whom they are able to access information.
   • The applicant is entitled to receive the documents under s 150(4) of the Assessment Act[5] as they have a sufficient interest and the criteria in s 150(4B) is satisfied.
   • The communication of this information is necessary to correct a mistake of fact.
3. Services Australia submitted none of the exemptions apply. In relation to the applicant's submissions, Services Australia said (in summary):
   • The decision for whether communicating protected information is necessary to correct a statement of fact which, if uncorrected, could risk the integrity of the administration of Child Support is not one for an authorised FOI decision maker, or the Information Commissioner standing in the position of the FOI decision maker, to make.
   • No determination has been made in the present matter. Accordingly, the exceptions to the communication of protected information in s 150(4) of the Assessment Act do not apply.
   • Further, given the Registrar, or a person authorised by the Registrar, has not made a determination it is appropriate to communicate protected information, the applicant's contentions regarding having a "genuine and legitimate interest" in the information need not be addressed as it is irrelevant to the decision under review.
4. I have examined an unedited copy of the information at issue. It is apparent that the documents:
   • were obtained by Services Australia in the course of performing its functions and duties under the Assessment Act and the Registration and Collection Act
   • concern a number of individuals, including the applicant and the third party.
5. Therefore, I am satisfied that the document contains 'protected information' for the for the purposes of subsections 16(1) of the Registration and Collection Act and 150(1) of the Assessment Act.
6. As noted above, subsections 16(3) and 16(4) of the Registration and Collection Act and the Assessment Act both contain provisions that do not prevent protected information being communicated in specified circumstances. Though I note that (at the time of the original decision) Services Australia assumed the third party has consented to the applicant dealing with the FOI request on their behalf, the material includes mixed personal information and there is no information before me to suggest that other third parties have consented to the disclosure. I am satisfied from my review of the unredacted documents and Services Australia's submissions that none of the other exceptions apply in this matter.
7. While some of the information appears in communications between Services Australia and the applicant or the third party, and would be known to them, I accept Services Australia's submission that third party protected information cannot be disclosed even when that information concerns an applicant or could reasonably be assumed to be known to an applicant. The test is not whether information already is, or may be, known to the applicant, but how the relevant legislation applies to it.
8. Disclosure of the 'protected information' is therefore prohibited by subsections 16(2)(b) of the Registration and Collection Act and 150(2)(b) of the Assessment Act. The document is therefore exempt under s 38 of the FOI Act unless an exception to s 38 applies.

Whether the exception in s 38(2) of the FOI Act applies

1. Section 38(2) provides that s 38 of the FOI Act does not apply in relation to a document, to the extent it contains personal information about the applicant.
2. The application of s 38(2) of the FOI Act to documents containing a mix of personal information is discussed in depth in AFV and Services Australia (no.1) (Freedom of Information) [2023] AICmr 125.
3. While the specific circumstances are distinguishable from the circumstances of this IC review, as noted in AFV and Services Australia (no.1) (Freedom of Information) [2023] AICmr 125, I consider that the approach taken by Forgie DP in Re Collie and Deputy Commissioner of Taxation [1997] AATA 713 and Re Richardson and Commissioner of Taxation [2004] AATA 367 regarding documents containing a mix of personal information about the FOI applicant and information about third parties is relevant in this IC review.
4. Services Australia submitted:

Any reference to a child, another parent, or any other third party (such as an employer, family member, teacher, etc) will be considered mixed personal information, even if it is contained in a document which is reasonably known to an FOI Applicant. This extends to references which indicate a link to a child support case, as this inherently gives rise to an indication that another person is involved in relation to the document, resulting in that document or part thereof being considered mixed personal information.

5. Above at [14] - [17], I have found that Services Australia's interpretation of the scope of the request was unduly narrow. Nonetheless, based on the content and context of the documents, additional documents, and the call recording, I consider it is not possible to separate the remaining personal information from information which would reveal personal information about third party individuals in the documents, the additional documents and the call recording. Therefore, the exception in s 38(2) to the disclosure of information does not apply in relation to that information and that information is exempt under s 38.

1. I am satisfied that disclosure of the material that Services Australia has found to be exempt under s 38 is prohibited from disclosure by sections 150(2)(b) of the Assessment Act and 16(2)(b) of the Registration and Collection Act. I am also satisfied that these provisions are specified in Schedule 3 of the FOI Act.
2. I find that the documents at issue, the relevant parts of the additional documents as well as the call recording are exempt under s 38 of the FOI Act.

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

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.

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.[6]

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.[7]

Documents to which secrecy provisions of enactments apply (s 38)

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

(1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment or a Norfolk Island law; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that enactment or law or any other enactment or Norfolk Island law.

(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment or law concerned or any other enactment or Norfolk Island law.

(2) Subject to subsections (3) and (3A), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.

A document is exempt if its disclosure is prohibited under a provision of another Act (s 38(1)(a)) and either:

• that provision is specified in Schedule 3 to the FOI Act (s 38(1)(b)(i)) or
• s 38 prohibits disclosure of the document or information contained in the document, where s 38 is expressly applied to the document, or information by that provision, or by another provision of that or other legislation (s 38(1)(b)(ii)).6

Section 16(2)(b) of the Registration and Collection Act and s 150(2)(b) of the Assessment Act are specified in schedule 3 of the FOI Act and are identical in their terms. They relevantly provide:

(2) Subject to this section, a person to whom this section applies must not:

(b) whether directly or indirectly, communicate to a person any protected information concerning another person.

'Protected information' is defined in identical terms in s 16(1) of the Registration and Collection Act and s 150(1) of the Assessment Act as follows:

(ii) is disclosed to or obtained by another person in the course of, or because of, the other person's duties under or in relation to this Act; or

(b) information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.

Section 16(3) of the Registration and Collection Act and s 150(3) of the Assessment Act do not prevent the Registrar or a person [8]authorised by the Registrar from communicating any protected information to specified officeholders for specified purposes, or to any person if the information contains a credible threat to the life, health or welfare of a person (subject to specified conditions), or the person is authorised to obtain the information by the person to whom the information relates.

Section 16(4) of the Registration and Collection Act and s 150(4) of the Assessment Act restrict the application of s 16(2)(b) of the Registration and Collection Act and s 150(2)(b) of the Assessment Act respectively, by not preventing the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:

• the information cannot reasonably be obtained from a source other than the Department or the Human Services Department; and
• the person to whom the information will be communicated has sufficient interest in the information; and
• the Registrar, or the person authorised by the Registrar, is satisfied that the communication is for a specific purpose.

A person has a 'sufficient interest' in protected information if:

• the person has a genuine and legitimate interest in the information; or
• the person is a relevant Minister.[9]

In summary, an offence is created under s 16(2) of the Registration and Collection Act[10] and exceptions to the elements of the offence are provided for in s 16(4)[11] and s 150(4).[12] Of relevance to this matter is the operation of s 16(4) of the Registration and Collection Act and s 150(4) of the Assessment Act. Those provisions are expressed conjunctively (using the word 'and'), accordingly, those provisions require the Registrar or person authorised by the Registrar to be satisfied that all of the conditions summarised above are met.

In order to meet the third limb referred to above, the Registrar, or the person authorised by the Registrar, must be satisfied that the communication of protected information satisfies any of the following purposes:

• the communication is necessary to correct a mistake of fact in relation to the administration of the Acts and the integrity of the administration will be at risk if the mistake of fact is not corrected,[13] or
• the communication is necessary to brief a relevant Minister for particular purposes,[14] or
• the information is about a missing person and the communication is necessary to assist specified bodies (for example a court or Royal Commission) or to locate a person, and there is no reasonable ground to believe that the missing person would not want the information communicated,[15] or
• the information is about a deceased person and the communication is necessary to assist specified bodies (for example a court or Royal Commission), or is necessary to help a person locate a relative or beneficiary of the deceased person, or is in relation to the administration of the estate of the deceased person, and there is no reasonable ground to believe that the deceased person would not have wanted the information communicated,[16] or
• the information is to establish the death of a person or the place where the death of a person is registered.[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] The second paragraph on page 3, pages 15 - 17 and pages 23 - 25 of the additional documents.

[2] For completeness, as noted below at [15], I am satisfied that Services Australia has taken all reasonable steps to search for documents in scope. T

[3] Services Australia noted (in the original decision) that the applicant had an Enduring Power of Attorney for the third party since 2017, and it assumed implied consent for the applicant to deal with the matter on that person's behalf.

[4] The second paragraph on page 3, pages 15 - 17 and pages 23 - 25 of the additional documents.

[5] Section 150(4) of the Assessment Act allows the Registrar, or a person authorised by the Registrar, to communicate protected information if the communication is necessary to correct a mistake of fact in relation to the administration of the act and the communication the integrity of that administration will be at risk if the mistake of fact is not corrected.

[6] 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.

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

[9] Registration and Collection Act s 16(4A) and Assessment Act s 150(4A).

[10] and the mirror provision in s 150(2) of the Assessment Act.

[13] Registration and Collection Act s 16(4B) and Assessment Act s 150(4B).

[14] Registration and Collection Act s 16(4C) and Assessment Act s 150(4C).

[15] Registration and Collection Act s 16(4D) and Assessment Act s 150(4D).

[16] Registration and Collection Act s 16(4E) and Assessment Act s 150(4E).

[17] Registration and Collection Act s 16(4F) and Assessment Act s 150(4F).