Andrew
Via email only:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
6 July 2023
Dear Andrew
Decision on your access application
I refer to your access application made under the
Freedom of Information Act 2016 (
FOI Act), dated
16 May 2023.
Your application requested a copy of the regular reports made to the ACT Human Rights Commission by:
- BAE Systems Australia Limited
- BAE Systems Australia Defence Pty Ltd
- ASC Shipbuilding Pty Limited
- CEA Research and Development Pty Ltd
- Fujitsu Australia Limited
- Leidos Australia Pty Limited
- Gibbs & Cox (Australia) Pty Ltd
- Raytheon Australia Pty Limited
- Seeing Machines Limited
- Systems Planning and Analysis, Australia Pty Ltd
in accordance with the requirements of the exemptions that have been granted to each of these
companies under the
Discrimination Act 1991.
I note that on 31 May 2023, you clarified the scope of your request to refer to a copy of the above
reports from 1 July 2020.
Authority
I am an information officer appointed for the ACT Human Rights Commission, appointed to make
decisions about access to government information, in accordance with section 18 of the FOI Act.
Decision
I have identified 25 documents containing information within the scope of your access application.
These are outlined in the attached
Schedule of documents. I have decided to:
• grant partial access to 25 documents.
For the reasons outlined in the attached
Reasons for decision, I have refused access to some of the
information that you have requested under section 35 (1) (c) of the FOI Act. This is because it is
contrary to the public interest information.
56 Allara St, Canberra City
T: (02) 6205 2222
E: xxxxx.xxxxxx@xxx.xxx.xx
GPO Box 158, Canberra ACT 2601
W: www.hrc.act.gov.au
Disclosure of information
Despite my decision, I have not yet provided you with a copy of the relevant documents. This is
because some relevant third parties have objected to disclosure of some of the identified
information.
I am required to defer access to this information to give the third party the opportunity to apply for
a review of my decision. They will have 20 working days to do so from when my decision is published
on our disclosure log (see below).
I will provide you with a copy of the documents when access is no longer deferred or advise you
that a review process is underway so you can participate if you wish.
Review rights
You may apply to the ACT Ombudsman to review my decision under section 73 of the FOI Act.
An application for review must be made within 20 days of receipt of this decision notice.
You may submit a request for review of my decision to the ACT Ombudsman by writing in one of the
following ways:
Email (preferred):
xxxxxx@xxxxxxxxx.xxx.xx
Post:
The ACT Ombudsman
GPO Box 442
CANBERRA ACT 2601
More information about ACT Ombudsman review is available on the ACT Ombudsman website at:
http://www.ombudsman.act.gov.au/improving-the-act/freedom-of-information.
Yours sincerely
Dr Helen Watchirs OAM
President and Human Rights
Commissioner / FOI Information Officer
Page 2 of 4
Attachment A – Reasons for decision
1. Material considered.
In reaching my decision, I considered:
• your access application,
• the documents containing the information that fall within the scope of your access
application,
• consultations with HRC staff and views of relevant third parties
• the FOI Act, particularly sections 17 (Public interest test), and Schedule 2.2(a)(ii) and
2.2(b)(iv) (factors favouring non-disclosure in the public interest/redaction)
• the
Discrimination Act 1991
• the
Human Rights Act 2004
2. Reasons for my decision
As a decision maker, I am required to determine whether the information within scope is in the
public interest to release. To make this decision, I am required to:
- perform the public interest test as set out in section 17 of the Act by balancing the factors
favouring disclosure and factors favouring non-disclosure in Schedule 2
I have included below the factors relevant to my decision on access.
Public interest test
I have assessed the information against the factors favouring disclosure and factors favouring non-
disclosure in Schedule 2.
On balance, I have decided that it is in the public interest to disclose the information with some
redactions relating to personal information of individuals included in the reports as disclosing this
information may prejudice these individuals’ rights to privacy.
On balance, I have decided that it is in the public interest to disclose the information without
redactions in relation to information which may be said to prejudice the business affairs of third
parties, which have provided the relevant reports. I have decided that I am not satisfied that their
business affairs will be prejudiced for the reasons detailed below.
I have included below my consideration of the relevant factors for your information.
Factors favouring disclosure
2.1(a) Factors favouring disclosure in the public interest.
(i)
promote open discussion of public affairs and enhance the government’s accountability
(iii)
inform the community of government operations
(viii) reveal the reason for a government decision and any background or contextual information
that informed the decision.
Page 3 of 4
Factors favouring non-disclosure
2.2 (a) Factors favouring nondisclosure in the public interest.
(ii) prejudice the protection of an individual’s right to privacy or any other right under the
Human Rights Act 2004.
An important consideration is the protection of personal privacy of individuals. I have noted some
of the third parties’ objection to the release of names, signatures, phone numbers and email
addresses of persons involved in providing reports under exemptions pursuant to the
Discrimination
Act 1991. The disclosure of such information would, in my view, likely constitute an unreasonable
limitation of their personal privacy. I have reached this conclusion in noting that the redaction of
these personal details does not conflict with the factors favouring disclosure identified above.
(x)
prejudice trade secrets, business affairs or research
As noted in the ACT Ombudsman’s
Freedom of Information Guideline 4, Considering the Public
Interest, February 2020 (the Guideline), previous FOI decisions establish that ‘business affairs’
means ‘the totality of the money-making affairs’ of a company as distinct from ‘private or internal
affairs’.
The Guideline also notes that the FOI Act should not be used to obtain commercial information
about competitors, distorting the proper functioning of markets. Further, the Guideline notes that
the disclosure of business information may prejudice business affairs where it would cause
reputational harm or increase competitive pressures, for example through the disclosure of pricing
information.
I consider that the general nature of the information provided in the reports is more in the nature
of ‘internal affairs’ rather than the ‘money-making affairs’ of a company and may not meet the
threshold for ‘business affairs’. Even if it does meet that threshold, I consider that disclosure of such
general information would not cause reputational harm or increase competitive pressures. I also
consider that the disclosure of general information about the implementation of exemptions from
the
Discrimination Act 1991 should not adversely affect the operations of the third parties.
Summary of my decision
In conclusion, I have decided to:
• grant partial access to 25 documents.
Page 4 of 4
