FOIREQ2300156 Decision.pdf

On 17 August 2023, the OAIC contacted you to advise that your request will be actioned
by the Legal Services Team, and further clarification was sought regarding the nature
of your request as follows:

‘Dear CR,

Thank you for your email to the OAIC on 15 August 2023.

We seek further clarification from you in relation to the documents you are seeking:

Part 1 of your FOI request

Option 1

Are you seeking "policies...guidance materials...to assist in making determinations on
requests for extension of time to
- process FOI requests,
- IC reviews
- FOI Complaints,
-  any other functions performed by the OAIC and Commissioners in relation to FOI
requests.

OR

Option 2

Are you seeking "policies...guidance materials...to assist in making determinations on
- requests for extension of time to process FOI requests,
- IC reviews
- FOI Complaints,
-  any other functions performed by the OAIC and Commissioners in relation to FOI
requests.

Please kindly let us know which option is correct.

Part 2 of your FOI request

You sought “Copies of al  templates, forms or other documents submitted by agencies
or FOI applicants to the OAIC seeking extensions of time to process FOI requests, FOI
Complaints or any other processes under the FOI Act for which application forms or
notification templates exist. I request these documents be provided in hard copy or text
document format rather than web links if possible.”
Option 1
2

Are you seeking the blank templates, forms or other guidance documents usual y used
by agencies to seek:
- extension of time to process FOI requests,
- IC reviews
- FOI Complaints,
-  any other functions performed by the OAIC and Commissioners in relation to FOI
requests.
OR
Option 2
Are you seeking a copy of al  documents submitted by agencies or FOI applicants to the
OAIC to seek:
- extension of time to process FOI requests,
- IC reviews
- FOI Complaints,
-  any other functions performed by the OAIC and Commissioners in relation to FOI
requests.
Our interpretation of scope – seeking your confirmation
Our preliminary interpretation of the scope of your request is that you are seeking
-  Part 1 – Option 2
-  Part 2 – Option 1.
However we would be grateful if you can please kindly confirm if this is correct and
provide the above clarification by close of business on Friday 18 August 2023. If we do
not hear from you by this time we wil  assume that you do not object to our
interpretation of scope and wil  continue to process in accordance with our
interpretation.
Form of access
Please kindly note the form of release of documents by the OAIC usual y is in the form of
PDF documents sent across via email to the email from which the FOI request was
made. However, we can certainly provide you with hard copy of the documents if you
provide us with the postal address to send the documents to.
We thank you and look forward to hearing from you. ‘

On 17 August  2023 you provided clarification  regarding  the information that you
sought from the OAIC as follows:
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‘[…] For Part 1, I am seeking Option 2 - any internal policies, guidelines or other
materials used by the OAIC and Commissioners to assist in making determinations
regarding functions performed in relation to other agencies' FOI requests, such as
requests for extensions of time, IC reviews, and other processes.

For Part 2, I am seeking Option 1 - blank templates or forms.

PDF format for the released documents is favourable.

I appreciate you taking the time to ensure we have a clear mutual understanding of my
request. Your thoroughness in this matter supports the principles of transparency and
accountable governance. Please do not hesitate to contact me if any part of the scope
remains unclear.

Thank you for your assistance […]’

The Legal Services Team acknowledged your FOI request on 17 August 2023.
Request timeframe
Your request was made on 15 August 2023.
This means that a decision on your request is due to be decided by 14 September
2023.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified 60  documents within the scope of your request. I have made a
decision to:
•  grant you access to 57 documents in full;
•  grant you access to 3 documents in part
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
•  your FOI request dated 15 August 2023 and subsequent clarification of the scope of
your request dated 17 August 2023;
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•  the documents at issue;
•  relevant case law;
•  the FOI Act, in particular ss 24A, 11, 11A, 47E(d), 47F, 47g; and
•  the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines).

Searches Undertaken (s 24A)
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
The following line areas of the OAIC conducted reasonable searches for documents
relevant to you request:
•  The Freedom of Information  Branch (Intake and Early Resolutions Team;
Reviews and Investigations Team and Significant Decisions Team)
Searches were conducted across the OAIC’s various document storage systems
including:
•  the OAIC’s case management system - Resolve
•  the OAIC’s document holding system – Content Manager
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request and that all documents relevant to the
scope of your request has been identified by the OAIC in the schedule and that no
additional documents exist.
Proper and efficient conduct of OAIC’s operations (Section 47E(d))
In accordance with section 47E(d) of the FOI Act, I have made a decision to grant
access in part to 2 documents.
I have decided to redact material in these documents on the basis that disclosure
would or could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the operations of the OAIC as an agency.
Paragraph 6.101 of the FOI Guidelines explains that:
For the grounds in  ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is
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explained in greater detail in Part 5. There must be more than merely an
assumption or allegation that damage may occur if the document were to be
released.
Additionally, at 6.103 the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure.
The particulars of the predicted effect should be identified during the decision
making process, including whether the effect could reasonably be expected to
occur. Where the conditional exemption is relied upon, the relevant particulars
and reasons should form part of the decision maker’s statement of reasons, if
they can be included without disclosing exempt material (s 26, see Part 3).
The material that I have decided is subject to conditional exemption under section
47E(d) comprises of:
-  Direct  mobile phone  contact details of OAIC staff  within the Freedom of
Information Branch
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the operations
of agencies, I have taken into consideration the functions and activities of the relevant
agencies.
The decision of Chief Executive Officer, Services Australia v Justin Warren [2020] AATA
4557 discussed the issue of the disclosure of public servants’ names and contact
details which was also discussed in the FOI Guidelines and the Information
Commissioner’s 2020 Policy Paper Disclosure of public servants’ names and contact
details in response to FOI requests.
It is accepted that the position that the assessment of the redaction of staff names and
contact details should be assessed on a case-by-case basis.
Further, in Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 when considering the release of the direct contact
details of agency personnel. In the case the Tribunal found at [130]:
An individual may include his or her direct telephone number in correspondence
directed to other persons. Unless published on an agency’s website or made public
in some other way, such as on a pamphlet or report available to the public, I consider
that disclosure of an individual’s telephone number in his or her place of
employment is unreasonable. Its disclosure wil  provide an avenue by which others
may choose to express their displeasure with the individual or with that for which he
or she is responsible but its disclosure does not make any positive contribution to
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increasing public participation in Government processes or in increasing scrutiny,
discussion, comment and review of the Government’s activities
I note that the mobile phone contact details of OAIC staff are not published on the
OAIC’s website and are not publicly available.  With these circumstances in mind, I
consider that the release of the direct mobile number contact details of OAIC staff
would substantially and adversely affect the agency by disclosure of this information
for the following reasons:
•  Undermine the purpose of public facing the FOI Branch to receive and manage
FOI enquiries from the public; and
•  Result in a diversion of resources away from the performance of normal duties
of the FOI Branch.
I therefore consider the relevant documents identified in the schedule as conditionally
exempt under section 47E(d) of the FOI Act. My consideration of the public interest
test, in respect of all the material subject to conditional exemption in these
documents is discussed below.
Personal Privacy (s47F)

I have also found the material in 1 document exempt in part pursuant to s47F of the
FOI Act.
The material that I have found exempt can be described as consisting of:
•  Matter reference numbers, names of the applicants, names of the
respondents and names of the legal representatives associated with the IC
review of access grant matters processed by the OAIC
Personal Information
A document is conditionally exempt under section 47F(1) of the FOI Act where
disclosure would involve the unreasonable disclosure of personal information of any
person, including a deceased person. This exemption is intended to protect the
personal privacy of individuals.
Section 4 of the FOI Act provides that the definition of personal information in the
Privacy Act 1988 (Cth) also applies to the FOI Act. The term personal information is
defined in section 6 of the Privacy Act to be:
… information or an opinion about an identified individual, or an individual
who is reasonably identifiable:
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(a)
whether the information or opinion is true or not;
(b)
whether the information or opinion is recorded in a material form or
not.
I am satisfied that this material meets the definition of personal information because
disclosure of this information would reasonably release personal circumstances of the
respective individuals and therefore constitutes personal information.
Unreasonable disclosure of personal information
In relation to whether disclosure of the material under the FOI Act would involve an
unreasonable disclosure of the third party individuals’ personal information, s 47F(2)
provides a decision maker must have regard to:

•  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, and
•  Any other matters the agency or minister considers relevant.
The FOI Guidelines further describes the key factors for determining whether
disclosure is unreasonable at paragraph 6.143:
•  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.
Consistent with FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines at paragraph 6.143 explain that other relevant factors include:
•  the nature, age and current relevance of the information
•  any detriment that disclosure may cause to the person to whom the
information relates
•  any opposition to disclosure expressed or likely to be held by that person
•  the circumstances of an agency’s collection and use of the information
•  the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
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•  any submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or
likely use or dissemination of the information, and
•  whether disclosure of the information might advance the public interest in
government transparency and integrity
Consideration of whether disclosure of the material would be unreasonable
In consideration of these factors and the material contained within the documents, I
am satisfied that the release of this personal information would be unreasonable
because:
-  Identifiable details concerning the matter number and parties involved in the
IC review of an access grant decision (including the applicant, respondent and
legal representatives) can be reasonably used to identify personal
information about the matter that is not otherwise well-known or publicly
accessible;
-  If details concerning the matter number, respondent and legal
representatives involved the in the IC review of an access grant decision are
disclosed, the relevant applicant may be identified
-  The release of this information would not further any public purpose, but it is
likely to cause undue stress to the applicants  seeking  the  IC review of  the
access grant decisions in question;
-  The information is not relevant to the substance of the FOI request
For the reasons given above, I consider that the material in question is conditionally
exempt under section 47F of the FOI Act. I have made a decision to redact the material
on the basis that disclosure would constitute an unreasonable disclosure of personal
information.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
Business Affairs (s47G)
I have also found the material in 1 document exempt in part pursuant to s47G(1)(b) of
the FOI Act.

Under s 47G(1) of the FOI Act, a document is conditionally exempt from disclosure if
its release would disclose information concerning the business, commercial or
financial affairs of an organisation or undertaking, in circumstances where disclosure
of such information would unreasonably affect an organisation in the undertaking of
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its lawful business or commercial affairs. As noted in Seven Network Operations
Limited and Australian Human Rights Commission [2021] AICmr 66 [156-157]:

“… the business information exemption is intended to protect the interests of
third parties dealing with the government. The operation of s 47G depends on the
effect of disclosure rather than the precise nature of the information itself.
Notwithstanding this, the information must have some relevance to a person in
respect of their business or professional affairs or to the business, commercial
and financial affairs of the organisation… The term ‘business affairs’ has been
interpreted to mean ‘the totality of the money-making affairs of an organisation
or undertaking as distinct from its private or internal affairs’.”

In this instance, the exempt document contains detailed information concerning the
matter reference numbers, applicant  names, respondent names  and legal
representatives associated with third-party organisations who are the applicants in
the IC review of access grant matters processed by the OAIC.  Such information
therfore relates to the business affairs of the relevant third-party organisations.

I am therefore satisfied that this is information concerning the business affairs of the
affected third-party organisations.

Prejudice future supply of information – s 47G(1)(b)

Section 47G(1)(b) applies where disclosure could reasonably be expected to prejudice
the future supply of information to the OAIC for the purpose of the administration of
matters administered by the OAIC. The FOI Guidelines provide, at [6.198]:

This limb of the conditional exemption comprises two parts:
• a reasonable expectation of a reduction in the quantity or quality of business
affairs information to the government
• the reduction will prejudice the operations of the agency

The FOI Guidelines further provide, at [6.200] – [6.201]:

Where the business information in question can be obtained compulsorily, or
is required for some benefit or grant, no claim of prejudice can be made. No
prejudice will occur if the information in issue is routine or administrative (that
is, generated as a matter of practice).
The agency will usually be best placed to identify, and be concerned about the
circumstances where the disclosure of documents might reasonably be
expected to prejudice the future supply of information to it.
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The term ‘prejudice’ is not defined in the FOI Act. The FOI Guidelines provide the
following definition, at [5.22] – [5.23]:

… The Macquarie Dictionary definition of ‘prejudice’ requires:
a. disadvantage resulting from some judgement or action of another
b. resulting injury or detriment
A prejudicial effect is one which would cause a bias or change to the expected
results leading to detrimental or disadvantageous outcomes. The expected
outcome does not need to have an impact that is ‘substantial and adverse’.

As above, although seeking an IC review of an access grant decision from the OAIC is
not compulsory, the extent of information provided by a third-party organisation as
part of the processing of the review is voluntary. The OAIC recommends that third-
party organisations who are applicants in IC review matters  provide  business
information in order to assist the OAIC with processing the review.

As previously mentioned above, noting that the documents in question contain details
of third-party organisations’ business affairs, in my view, the disclosure of the relevant
documents in this case could reasonably be expected to prejudice the future supply
of information to the OAIC if third party organisations’ sensitive business information,
which was provided to the OAIC for the purpose of assisting OAIC in processing the IC
review  of  access grant matters,  is  publicly  disclosed.  Namely, I consider that the
disclosure of such information could discourage business organisations seeking the IC
review of access decisions, from providing necessary information for the purpose of
processing the reviews in the future.

For the above reasons, based on the information before me at this time, I am satisfied
that disclosure of the documents at this time could reasonably be expected to
prejudice the future supply of information to the OAIC for the purposes of processing
the IC review of access grant matters (s 47G(1)(b)).
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
The public interest test (s 11A(5))

As provided above, I have considered that material within the documents is subject
to conditional exemptions under sections 47E(d) , 47F  and 47G of the FOI Act.
An agency cannot refuse access to conditional y exempt documents unless giving
access would, on balance, be contrary to  the public  interest (s 11A(5)). The FOI
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Guidelines explain that disclosure of conditionally exempt documents is required
unless the particular circumstances at the time of decision reveal countervailing harm
which overrides the public interest in giving access. In this case, I must consider
whether disclosure of the 3 documents at this time would be contrary to the public
interest.
Subsection 11B(3) of the FOI Act provides a list of public interest factors favouring
disclosure. The FOI Guidelines at paragraph [6.19] also provide a non-exhaustive list
of public interest factors favouring disclosure, as well as public interest factors against
disclosure. The relevant public interest factor in favour of disclosure in this case is that
disclosure would promote the objects of the FOI Act and inform debate on a matter of
public importance. Other factors are not relevant.
The public interest factors favouring disclosure must be balanced against any public
interest factors against disclosure. The FOI Guidelines at paragraph [6.22] contain a
non-exhaustive list of factors against disclosure. In my view, the fol owing relevant
public interest factors against disclosure in this case is that disclosure would:
•  Undermine the purpose of public facing the FOI team to receive and manage
FOI enquiries from the public;
•  Would involve the unreasonable disclosure of personal information of
applicants associated with the IC review of access grant decisions processed
by the OAIC; and
•  Would prejudice the future supply of information to the OAIC by third-party
organisations for the purposes of processing the IC review of access grant
matters (s 47G(1)(b)).
I am satisfied that the public interest factors against disclosure outweigh the public
interest factor in favour of disclosure.
I have decided that at this time, giving you full access to the documents, which I have
found to be conditional y exempt under s47F, s 47E(d) and s47G of the FOI Act would,
on balance, be contrary to the public interest.
Administrative Request
I note as part of your FOI request you sought the fol owing information:
‘[…] Administratively, I also request confirmation on whether agencies are obligated
under the FOI Act or Guidelines to provide copies of extension of time applications
submitted to the OAIC directly to the original FOI applicant […]’

In response to your request, Legal contacted the FOI Branch who provided the following
information:
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‘There is no statutory obligation to share this, but we do advise respondents in our
online extension of time request form that the application may be shared with the
applicant, and our online guidance for agencies also states the fol owing:
Generally the OAIC will consult the applicant where the extension sought is for a period
longer than 30 days or where the agency is seeking to vary (further extend) an earlier
extension granted by the OAIC. During consultation, the OAIC will often send the
applicant a copy of the EOT application, so please advise if it contains anything
sensitive that should not be passed on.’
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely

Alessia Mercuri
Lawyer

14 September 2023

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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request for
IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
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Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxx@xxxx.xxx.xx. More information is available on the Access our information page
on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
The documents I have decided to release to you do not contain personal information
that would be unreasonable to publish. As a result, the documents wil be published
on our disclosure log.

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