7 September 2023
Mr Stephen Not Given
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Stephen,
Freedom of Information request (FOI-2023-10039)– Access decision
1. I refer to your email dated 20 March 2023 in which you requested access to documents under the
Freedom of Information Act 1982 (FOI Act). Your request for documents was framed in the
fol owing way:
‘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 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).’
2. The default statutory time frame for processing this application was 30 days. As this Office did not
make a decision within that time frame, this request is considered a ‘deemed refusal’.
3. This matter is currently before the Information Commissioner for review. As such, I have the ability
to make a revised decision varying the ‘deemed refusal’. In accordance with s 55G of the FOI Act,
this is a revised decision granting partial access to the documents requested.
Decision
4. I am an officer authorised under s 23 of the FOI Act to make decisions in relation to FOI requests.
5. Our Office has identified twenty-nine (29) documents relevant to your request. I have decided:
to grant part access to 9 documents (attached)
to refuse access to 20 documents.
6. A schedule setting out the relevant documents is at Attachment B. Our Office identified the
documents by searching our electronic records management system and our case management
system.
Reasons
7. My findings of fact and reasons for granting part access to the material are as fol ows.
8. In making my decision I had regard to the fol owing:
the terms of your request
relevant provisions of the FOI Act
the Australian Information Commissioner’s Guidelines on FOI, available at
www.oaic.gov.au (the FOI Guidelines); and
relevant case law and decisions
Partial access
9. 9 documents have been partial y released to you as set out in the attached Schedule of
Documents. The personal information of FOI applicants has been redacted. I have relied on the
personal privacy conditional exemption to make those redactions (s 47F and 47E(d) of the FOI Act)
Personal privacy
10. Section 47F of the FOI Act conditional y exempts a document where “its disclosure would involve
the unreasonable disclosure of personal information about any person.” I must give access unless
access would, on balance, be contrary to the public interest. (s 11A(5))
11. ‘Personal information’ is defined in section 4 of the FOI Act as:
information or an opinion about an identified individual, or an individual who is reasonably
identifiable: (a) whether the information or opinion is true or not; and (b) whether the
information or opinion is recorded in a material form or not.
12. The documents contain personal information in the form of names of FOI applicants, addresses
and contact details. I am satisfied that the relevant information is personal information: s 4 of the
FOI Act.
13. In considering whether disclosure would be unreasonable, subsection 47F(2) of the FOI Act
requires that I take into account:
the extent to which the information is wel known
whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document
the availability of the information from publicly accessible sources, and
any other matter considered relevant.
14. With regards to the partial y released documents, while several of these have been published
online and are accessible on the Right to Know website, the email addresses associated with those
requests are not publicly accessible. These email addresses have been redacted.
15. With regards to applicant names and contact details, the relevant information is not wel known.
The individuals to whom the information relates are not general y known to be associated with the
relevant information. The relevant information is not readily available from public sources.
16. I find that release of such information would involve the unreasonable disclosure of personal
information under s 47F(1) of the FOI Act.
Public interest
17. In deciding whether access should be given to this information on the basis of public interest, I
have taken into account the public interest factors for and against disclosure, s 11B(3) of the FOI
Act, the FOI Guidelines at paragraphs 6.17 – 6.22, as wel as matters specific to this agency’s
functions and operating environment.
18. Given the focus of this application is FOI decisions that are currently at OAIC review stage,
information of FOI applicants may increase scrutiny around the FOI decisions of the
Commonwealth Ombudsman. However, release of the information could reasonably be expected
to prejudice the protection of a person’s right to privacy, specifical y the privacy of members of the
public who have interacted with the Office
19. Pursuant to subsection 11A(5) of the FOI Act, I have concluded that this material is not required to
be disclosed because disclosure at this time would be, on balance, contrary to the public interest.
Access refusal
20. 20 documents are exempt from release, pursuant to s 47E which provides
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be expected to,:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of the agency.
21. Several documents located and within scope of your request include material relating to
investigations or potential investigations conducted under the Public Interest Disclosure Act 2013
(Cth) (‘the PID Act’) as wel as complaints lodged with the Ombudsman. Al documents revealing
specific Public Interest Disclosures and complaints are exempt pursuant to s 47E. Where the
document is related to a Public Interest Disclosure or a complaint, I have indicated that on the
Schedule of Documents.
Information revealing Public Interest Disclosures
22. Al FOI applications that refer to specific purported Public Interest Disclosures are exempt from
production pursuant to s 47E(d) of the FOI Act.
23. The FOI Guidelines state at paragraph 6.122:
The exemption may also apply to documents that relate to a complaint made to an
investigative body. The disclosure of this type of information could reasonably affect the
wil ingness of people to make complaints to the investigative body, which would have a
substantial adverse effect on the proper and efficient conduct of the investigative body’s
operations.
24. The Ombudsman is an investigative agency involved in administering and enforcing the Public
Interest Disclosure Act 2013 (‘PID Act’). Central to the Public Interest Disclosure scheme is the
protection of those who make disclosures, as wel as secrecy. Disclosure of even the purported
existence of a PID Investigation, where the existence of that investigation is not wel known, could
reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of
investigations in the future. Where information may indicate a PID was made, the release of any
information increases the risk of reprisal for disclosers and other officials. Public detriment wil
arise if the Office is compromised in our ability to obtain confidential information in future PID or
Ombudsman Act investigations.
25. I have considered the requirement outlined in s 11A of the FOI Act, that access must general y be
given to a conditional y exempt document unless it would be, on balance, contrary to the public
interest. In considering whether access would, on balance, be contrary to the public interest, I
have considered the factors for and against disclosure, including the factors identified in s 11B(3)
of the FOI Act. I have also considered the public interest factors favouring and against disclosure in
the FOI Guidelines [6.17 – 6.19] and [6.22], as wel as matters particular to the Ombudsman’s
functions and operating environment.
26. In considering whether the public interest would require the documents to be released, the factors
against disclosure outweigh those in favour of disclosure. Specifical y:
a. Disclosure would reasonably be expected to prejudice the protection of an individual’s
right to privacy, in particular the right of disclosers
b. Disclosure would reasonably be expected to prejudice the proper and efficient conduct
of investigations by the Ombudsman
c. Disclosure would reasonably be expected to prejudice the Ombudsman’s ability to
obtain confidential information;
d. Disclosure may breach or undermine the secrecy provisions that apply to information
obtained while conducting an investigation of a disclosure under the PID Act,
particularly noting disclosure under the FOI Act does not limit further disclosure.
Information revealing complaints
27. Those documents that reveal complaints made to this Office and their investigation are exempt in
ful from release under s 47E(d) of the FOI Act.
28. Ombudsman investigations are dealt with in private pursuant to s 8(2) of the Ombudsman Act
1976, and Ombudsman officers are to observe confidentiality with respect to information
disclosed under the Act. As per the Office’s privacy policy, “due to the confidential nature of
Ombudsman investigations we cannot disclose that a person has made a complaint to the
Ombudsman.”
29. As noted in Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr
11 (26 April 2012) (‘ABC’) at [33]:
“the Ombudsman Act establishes a framework within which the Ombudsman’s
investigations are conducted in private, and information disclosed or obtained under
the Act is treated confidential y…Disclosure, under the FOI Act, of information provided
to the Ombudsman by complainants in such circumstances would affect the wil ingness
of people to make complaints to the Ombudsman in the future. That would have a
substantial adverse effect on the proper and efficient conduct of the Ombudsman’s
operations”
30. I have considered the requirement outlined in s 11A of the FOI Act, that access must general y be
given to a conditional y exempt document unless it would be, on balance, contrary to the public
interest. In considering whether access would, on balance, be contrary to the public interest, I
have considered the factors for and against disclosure, including the factors identified in s 11B(3)
of the FOI Act. I have also considered the public interest factors favouring and against disclosure in
the FOI Guidelines [6.17 – 6.19] and [6.22], as wel as matters particular to the Ombudsman’s
functions and operating environment.
31. Disclosure may promote the objects of the FOI Act, including to:
a. inform the community of the Government’s operations, including, in particular, the
practices fol owed by the Government in its dealings with members of the community
b. inform debate on a matter of public importance by al owing inquiry into possible
deficiencies in the conduct or administration of an agency or official.
32. Whilst disclosure may increase transparency in Ombudsman investigations, that factor is
outweighed by the risk posed to future investigations if the information is disclosed. Those who
make complaints to the Ombudsman must be assured that their complaints wil be treated in
confidence. Release of information, in particular personal information linked to a complaint or
investigation could reasonably be expected to discourage future complaints.
33. Public detriment wil arise if the Ombudsman is compromised in our Office’s ability to obtain
confidential information in future Ombudsman Act investigations. Further:
a. Disclosure would reasonably be expected to prejudice the protection of an individual’s
right to privacy, in particular the right of complainants;
b. Disclosure would reasonably be expected to prejudice the proper and efficient conduct of
investigations by the Ombudsman;
c. Disclosure would reasonably be expected to prejudice the Ombudsman’s ability to obtain
confidential information; and
d. Disclosure would reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future.
Personal privacy
34. In addition to the exceptions noted above, where the complaint or public interest disclosure
referred to in an FOI application is related to an individual, disclosure of that information would
also constitute an unreasonable disclosure of personal information, though I note for
completeness that those individuals have not been consulted as ultimately I have decided to not
release the information.
Section 22- access to edited copies/deletion of exempt or irrelevant matter
35. I provide access to an edited copy of the 9 relevant documents to you with conditional y exempt
material –FOI applicant personal information – removed in accordance with s 22 of the FOI Act.
36. Documents containing email chains which contain material outside the scope of your request (i.e.
that contain material which does not relate to the request for information received under the FOI
Act including email chains attached to FOI requests) have been edited to remove irrelevant
material.
Contact details
37. You may contact me via email at xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on
1300 362 072.
Yours sincerely
David Yalpi
Legal Officer
Legal Team
Influencing systemic improvement in public administration
Attachment B – Schedule of documents
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
1. 1
14/11/2020 1
FOI request
Part access
Conditional y exempt
Personal information
(1-1)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
2.
17/01/2022
1
FOI request
Part access
Conditional y exempt
Personal information
(2-2)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
3.
17/02/2022
3
FOI request
Part access
Conditional y exempt
Personal information
(3-5)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
4.
11/07/2019
1
FOI request
Part access
Material outside scope of
Personal information
(6-6)
request redacted under s
redacted.
22
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
5.
30/09/2020
2
FOI request
Part access
Conditional y exempt
Personal information
(7-8)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
6.
9/04/2022
3
FOI request
Part access
Material outside scope of
Personal information
(9-11)
request redacted under s
redacted.
22
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
7.
12/03/2022
2
FOI request
Part access
Conditional y exempt
Personal information
(12-13)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
8.
22/11/2022
1
FOI request
Part access
Conditional y exempt
Personal information
(14-14)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
9.
17/04/2020
2
FOI request
Part access
Conditional y exempt
Personal information
(15-16)
under s 47F of the FOI Act redacted.
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
10.
17/05/2020
14
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
11.
16/12/2019
2
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information))
12.
16/08/2021
3
FOI request
Exempt in ful
Material outside scope of
Contains complaint
request redacted under s
information.
22
Contains personal
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
13.
23/01/2023
3
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
Contains personal
Conditional y exempt
information.
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
14.
26/02/2022
2
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
15.
11/03/2023
5
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
Contains personal
Conditional y exempt
information.
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
16.
5/05/2022
1
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
17.
31/01/2023
1
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
18.
22/12/2020
1
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
Contains personal
Conditional y exempt
information.
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
19.
13/12/2021
3
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
Contains personal
Conditional y exempt
information.
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
20.
21/07/2021
7
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
21.
16/06/2022
4
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
22.
1/07/2022
3
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
23.
23/11/2022
1
FOI request
Exempt in ful
Conditional y exempt
Contains personal
under s 47E(d) –
information
(substantial adverse effect
on agency operations
24.
15/10/2022
3
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations
25.
27/04/2021
1
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
26.
10/06/2020
6
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
Schedule of Documents – Freedom of Information Request FOI-2023-10039
Doc No.
Date
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
27.
5/04/2020
3
FOI request
Exempt in ful
Conditional y exempt
Contains complaint
under s 47E(d) –
information.
(substantial adverse effect Contains personal
on agency operations)
information.
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
28.
Unknown
8
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47E(d) –
to Public Interest
(substantial adverse effect Disclosures.
on agency operations)
29.
14/02/2022
4
FOI request
Exempt in ful
Conditional y exempt
Contains material related
under s 47F of the FOI Act to Public Interest
(unreasonable disclosure
Disclosures.
of personal information)
