FOI Reference: LEX 8551
File Reference: 23/18761
22 August 2023
Mr Alex Pentland
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
RE: Freedom of Information Request
I refer to your request received by the Department of Foreign Affairs and Trade
(the department) on 24 July 2023 for access under the
Freedom of Information Act 1982
(the FOI Act) to:
(a) Al correspondence between DFAT and the Australian Government entities in
relation to Former Prime Minister Tony Abbott's and Member for Menzie's Kevin
Andrews' visit to Hungary in 2019
(b) notes, summaries or records of discussions between the DFAT Secretary and Tony
Abbott in relation to his proposed trip to Hungary in 2019
(c) notes, summaries or records of discussions between the DFAT Secretary and Kevin
Andrews in relation to his proposed trip to Hungary in 2019
(d) Any submissions sent by DFAT to the Foreign Minister or the Trade Minister in
relation to Former Prime Minister Tony Abbott's and Member for Menzie's Kevin
Andrews' visit to Hungary in 2019.
On 14 August 2023 you consented to providing the department with a 7-day extension of
time to provide you with notice of this decision.
I am writing to provide you with a decision about your request.
I have identified documents relevant to your request. After careful consideration, I have
decided to grant you access to an edited copy of the documents, with irrelevant and
exempt information removed.
Reasons
I am an officer authorised under section 23 of the FOI Act to make decisions in relation to
FOI requests.
R G Casey Building John McEwen Cres Barton 0221
DFAT.GOV.AU
T
+61 2 6261 1111
@DFAT
In making my decision I have taken into account:
• the terms of your request;
• the documents that fal within the scope of your request;
• the FOI Act; and
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).
The reasons for my decision and for the application of exemptions under the FOI Act to the
document are set out below. Where I refer to sections of the FOI Act, these are available at
www.legislation.gov.au. Parts of the FOI Guidelines referenced can be found online at
www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-
government-agencies/foi-guidelines.
Damage to international relations (section 33(a)(i i) of the FOI Act)
Under section 33(a)(ii ) of the FOI Act, a document is exempt if its disclosure would, or
could reasonably be expected to, cause damage to the international relations of the
Commonwealth.
The phrase ‘international relations’ has been interpreted to mean the ability of the
Australian Government to maintain good working relations with other governments and
international organisations and to protect the flow of confidential information between
them (FOI Guidelines, paragraph 5.36). As outlined in paragraph 5.38 of the FOI Guidelines,
this applies to documents, the disclosure of which could diminish the confidence which
another country has in Australia as a reliable recipient of confidential information, making
that country or its agencies less wil ing to cooperate with Australian agencies in future.
Furthermore, according to paragraph 5.28 of the FOI Guidelines, the expression ‘damage’
could include intangible damage, including inhibiting future negotiations between the
Australian Government and a foreign government, or the future flow of confidential
information from a foreign government.
Considering these provisions, I am satisfied that the disclosure of the relevant material to
which you seek access, would be reasonably likely to cause damage to Australia’s foreign
relationships and that this material is exempt under section 33(a)(ii ) of the FOI Act. In
coming to this view, I have had regard to the nature of the information, the circumstances
in which some of it was communicated, and the likelihood and nature of the damage to
international relations which could occur in the event of disclosure (FOI Guidelines,
paragraph 5.37).
Material communicated in confidence (section 33(b) of the FOI Act)
Under section 33(b) of the FOI Act, a document is exempt if disclosure would divulge any
matter communicated in confidence to the Australian Government by or on behalf of a
foreign government, an authority of a foreign government or an international organisation.
Information is communicated in confidence by or on behalf of another government or
international organisation if it was communicated under an express or implied
understanding that the communication would be kept confidential (FOI Guidelines,
paragraph 5.42).
Paragraph 5.44 of the FOI Guidelines also provides that an understanding of confidentiality
need not be formal and may be inferred from the circumstances in which the
communications occurred.
I have decided that the relevant information to which you seek was communicated in
confidence by a foreign government and is exempt under section 33(b) of the FOI Act.
Substantial adverse effect on an agency’s proper and efficient conduct of operations
(section 47E(d) of the FOI Act)
Under section 47E(d) of the FOI Act, a document is conditionally exempt if disclosure would,
or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of an agency’s operations.
I am satisfied that some material contained within the documents is conditional y exempt
under section 47E(d) of the FOI Act, as its release could have a substantial adverse effect on
the proper and efficient conduct of the operations of the department. Specifical y, disclosure
of this material could reasonably be expected to prejudice the department’s operations in
relation to processing passport applications.
In making this decision, I have given regard to paragraph 6.123 of the FOI Guidelines, which
provides that the adverse effect referred to in section 47E(d) of the FOI Act must bear on the
agency’s proper and efficient operations.
Unreasonable disclosure of personal information (section 47F(1) of the FOI Act)
Under section 47F(1) of the FOI Act, a document is conditional y exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person.
‘Personal information’ refers to information or opinion about an identified individual, or an
individual who is reasonably identifiable:
• whether the information or opinion is true or not; and
• whether the information or opinion is recorded in a material form or not.
The test of ‘unreasonableness’ implies a need to balance the public interest in disclosing
the information and the relevant individuals’ privacy interests (paragraph 6.138 of the
FOI Guidelines).
I have had regard to the following matters in considering whether disclosure of some
information would involve an unreasonable disclosure of personal information:
• the extent to which the information is wel known;
• whether the individual to whom the information relates is known to be (or to
have been) associated with the matters in the documents; and
• the availability of the information from publicly accessible sources; and
• any other matters that the agency considers relevant (section 47F(2) of the
FOI Act).
Having regard to the nature of the information, and the implications for the identified
individual if disclosed, I am satisfied that the disclosure of the personal information in this
case would be unreasonable. I am not satisfied that the information is well known or
publicly available, or that the disclosure of the relevant information would achieve a public
purpose.
For these reasons, I have decided that the relevant material is conditionally exempt under
section 47F(1) of the FOI Act.
Conditional exemptions - public interest considerations (section 11A(5) of the FOI Act)
As sections 47E(d) and 47F of the FOI Act are conditional exemptions, I must grant you access
to this material unless providing access would, on balance, be contrary to the public interest
(section 11A(5) of the FOI Act).
In assessing the public interest, I have considered the FOI Guidelines referred to above and
the public interest factors listed in section 11B of the FOI Act as favoring access, including
whether granting access to the documents would promote the objects of the FOI Act.
I have also considered public interest factors against disclosure, including that disclosure
may reasonably be expected to prejudice an individual’s right to privacy.
On balance, I am of the view that the public interest is weighted against the disclosure of
this material. In forming this view, I have not taken into account any of the irrelevant
factors specified in section 11B(4) of the FOI Act.
Irrelevant material (section 22(1)(a)(i ) of the FOI Act)
Some of the material excluded from the documents released to you is outside the scope or
could reasonably be regarded as irrelevant to your request (section 22(1)(a)(ii) of the
FOI Act).
In determining what is relevant to your request, I have taken into account the terms of your
request and the email which you received from the department on 26 July 2023, in which
you were invited to respond if you required the names and contact details of government
officials not in the Senior Executive Service (SES). As you have not stated that you require
this information, I have decided to remove them from the document being released to you.
Review rights
Information about your review rights is set out in the
Attachment for your reference.
Contact
Should you have any queries regarding this matter please contact the Freedom of
Information Section by email (xxx@xxxx.xxx.xx).
Yours sincerely
Rosemary Morris-Castico
Assistant Secretary
Department of Foreign Affairs and Trade
Attachment
Your review rights
Internal review
You may apply for internal review of the decision (section 54 of the FOI Act). The internal
review application must be made within 30 calendar days from the day you receive this
notice.
Where possible, please attach reasons why you believe review of the decision is necessary.
The internal review will be carried out by another officer within 30 days.
Any request for internal review should be directed via email to xxx@xxxx.xxx.xx or
addressed to:
Freedom of Information Section
Department of Foreign Affairs and Trade
R G Casey Building
John McEwen Crescent
Barton ACT 0221
Australia
Australian Information Commissioner
You may apply to the Australian Information Commissioner to review my decision
(section 54L of the FOI Act). To do this, you must contact the Australian Information
Commissioner within 60 calendar days from the day you receive this notice.
You may also make a complaint to the Australian Information Commissioner about the
Department’s actions in relation to this decision (section 70 of the FOI Act). Making such a
complaint about the way the Department has handled your FOI request is a separate
process to seeking review of my decision.
Further information on applying for an Australian Information Commissioner review is
available at: www.oaic.gov.au/freedom-of-information/your-freedom-of-information-
rights/freedom-of-information-reviews.
Further information about how to make a complaint is available at:
www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-complaints.
