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Reference:
FOI 23-24/008
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
Alex Pentland
via Right to Know website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
Freedom of Information Request – FOI 23-24/008
On 14 July 2023, the Department of Finance (Finance) received your email, in which you
sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) to the
following:
I seek access to the following:
(a) Documents and correspondence relating to the moving of Senator Babet's electorate office (from
the CBD to Narre Warren) from 21 May 2022
(b) The enumerated costs of the move of Senator Babet's electorate office from the CBD to Narre
Warren.
On 9 August 2023, you agreed to amend the scope of your request as provided in
Attachment A.
The purpose of this letter is to provide you with notice of my decision under the FOI Act.
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have identified two (2) documents as falling within the scope of your request and I have
decided to release both documents in part as they disclose personal and business
information.
In making my decision, I have had regard to the following:
• the terms of your FOI request;
• the content of the documents that fall within the scope of your request;
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
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• consultations with third parties in accordance with the FOI Act and submissions
made by those third parties;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Exempt and irrelevant information removed from the documents
I have redacted irrelevant and exempt information from the documents and released the
edited form of the documents to you.
Information removed as it discloses personal information – section 47F Section 47F of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would involve the unreasonable
disclosure of personal information about any person (including a deceased person).
In determining whether the disclosure of the document would involve the unreasonable disclosure of
personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister consider relevant.
The FOI Guidelines provide:
[6.140] An agency or minister must have regard to the following matters in determining whether disclosure
of the document would involve an unreasonable disclosure of personal information:
• the extent to which the information is well 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
• any other matters that the agency or minister considers relevant.
[6.142] Key factors for determining whether disclosure is unreasonable include:
• the author of the document is identifiable
• the documents contain third party personal information
• release of the documents would cause stress on the third party
• no public purpose would be achieved through release.
[6.145] … disclosure may be unreasonable if the person provided the information to Government on the
understanding that it would not be made publicly available, and there are no other statutory disclosure
frameworks that would require release of the information.
[6.157] There needs to be careful consideration of the exemption where the personal
information does not relate to the public servant’s usual duties and responsibilities. For
example, if a document included information about an individual’s disposition or private
characteristics, disclosure is likely to be unreasonable. This would generally include the
reasons a public servant has applied for personal leave, information about their performance
management or whether they were unsuccessful during a recruitment process.
In these circumstances, it would be an unreasonable disclosure of personal information to
release the documents. Accordingly, I consider that the documents are in part conditionally
exempt under section 47F of the FOI Act.
Information removed as it discloses business information – section 47G Section 47G of the FOI Act provides:
(1) A document is conditionally exempt if its disclosure under this Act would disclose information
concerning a person in respect of his or her business or professional affairs or concerning the business,
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commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the
information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of
his or her lawful business or professional affairs or that organisation or undertaking in respect of its
lawful business, commercial or financial affairs.
The FOI Guidelines provide:
[6.12] In order to find that s 47G(1)(a) applies, a decision maker would need to be satisfied that if the
document were disclosed there would be: an unreasonable adverse effect, on the business or professional
affairs of an individual, or the lawful business, commercial or financial affairs of an organisation or
undertaking.
[6.13] These criteria require more than simply asserting that a third party’s business affairs would be
adversely affected by disclosure. The effect would need to be unreasonable. This requires a balancing of
interests, including the private interests of the business and other interests such as the public interest.
Section 47G is intended to protect the business interests of third parties dealing with the
government. The documents contain sensitive information belonging to the operations of a
third-party business activity. If this information is released publicly, there is a risk that there
would be an adverse impact on the commercial operations of the third party. I consider this
information to be related to the business operations of the third party and could reasonably
be expected to affect the third party’s lawful business, commercial or financial affairs.
I consider that information as identified in both documents, is conditionally exempt under
section 47G of the FOI Act.
Public interest test Having formed the view that the Documents are exempt, in part, under sections 47F and
47G of the FOI Act, I am now required to consider the public interest test for the purposes of
determining whether access to the conditionally exempt documents would, on balance, be
contrary to the public interest.
Section 11A of the FOI Act provides:
5.
The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.
Factors favouring disclosure
Section 11B of the FOI Act provides:
1.
Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
a.
promote the objects of this Act (including all the matters set out in sections
3 and 3A);
b.
inform debate on a matter of public importance;
c.
promote effective oversight of public expenditure;
d.
allow a person to access his or her own personal information.
I consider that giving access to the documents would promote the objectives of the FOI Act
by providing access to documents held by an agency. I attribute minimal weight to this
factor as this objective applies to all documents, regardless of the effect of releasing the
documents.
Factors against disclosure
Paragraph 6.22 of the FOI Guidelines provides a non-exhaustive list of factors against
disclosure, of which, I consider could reasonably be expected to prejudice an agency’s
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ability to obtain similar information in the future; and may have an adverse impact on the
business interests of the third party.
I attribute significant weight to the above factors for there is a need to preserve reasonably
held expectations of confidentiality for third party suppliers, particularly in relation to
documents that contain commercially sensitive information.
Irrelevant considerations
I have not taken into account any of the irrelevant factors listed under Section 11B of the
FOI Act:
3.
The following factors must not be taken into account in deciding whether access to
the document would, on balance, be contrary to the public interest;
a. access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b. access to the document could result in any person misinterpreting or
misunderstanding the document;
c. the author of the document was (or is) a high seniority in the agency to which the
request for access to the document was made;
d. access to the document could result in confusion or unnecessary debate.
Balancing the public interest factors The FOI Guidelines provide:
[6.25] The decision maker must determine whether access to a conditionally exempt document is, at the
time of the decision, contrary to the public interest, taking into account the factors for and against
disclosure.
[6.27] To conclude that, on balance, disclosure of a document would be contrary to the public interest is to
conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public
of withholding the information.
I consider that there is public interest in providing access to documents held by Finance,
however, for the reasons listed above, I consider there is greater public interest in protecting
the privacy of individuals and sensitive information related to third party business
operations. It is reasonably likely that if this information was released, it likely would affect
third party suppliers’ lawful business operations.
Therefore, I consider that releasing the conditionally exempt information in the documents
would, on balance, be contrary to the public interest.
Third party consultation
Finance consulted with third parties and provided them with a copy of the documents with
our proposed redactions. We did not receive any objections to the release of the documents.
Review and appeal rights
You are entitled to request an internal review or an external review by the Office of the
Australian Information Commissioner (OAIC) of my decision. The process for review and
appeal rights is set out at
Attachment A.
Publication
Finance will publish the documents released to you on our
Disclosure Log. Finance’s policy
is to publish the documents the working day after they are released to you.
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If you have any questions in regard to this request, please contact the FOI Team on the
above contact details.
Yours sincerely,
Sally Bektas
Assistant Secretary
PBR Frameworks | Ministerial and Parliamentary Services
Department of Finance
4 October 2023
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ATTACHMENT A
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will be
30 calendar days of being notified of our
carried out by a different decision maker,
decision to release your information.
usually someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
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How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 17 February 2023 it is $1,011).
In your written correspondence, please
include the following:
Further information is accessible
here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessible
here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
External review (Information
The Ombudsman can also investigate
Commissioner Review)
complaints about action taken by agencies
For an ER, you must apply to the OAIC in
under the FOI Act. However, if the issue
writing. The OAIC ask that you commence a
complained about either could be, or has been,
review by completing their online form
here.
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
Your application must include a copy of the
being investigated twice. If the Ombudsman
notice of our decision that you are objecting
decides not to investigate the complaint, then
to, and your contact details. You should also
they are to transfer all relevant documents and
set out why you are objecting to the decision.
information to the IC.
Email: xxxxx@xxxx.xxx.xx
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
Post: Office of the Australian Information
occur where the FOI complaint is only one
Commissioner
part of a wider grievance about an agency’s
GPO Box 5218
actions. You will be notified in writing if your
Sydney NSW 2001
complaint is transferred.
The IC’s enquiries phone line is
Complaints to the Ombudsman should be
1300 363 992.
made online
here.
The Ombudsman’s number is 1300 362 072.
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Document Outline
