Internal review decision signed.pdf

Your ref:
Our ref: LEX 841

‘Me’
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx.xx

Dear Me

Freedom of Informa�on – Internal review decision

1.  I refer to your email of 17 November 2023 reques�ng an internal review of the Department of
Educa�on’s (the department) freedom of informa�on (FOI) decision dated 16 November 2023
made under the Freedom of Information Act 1982 (FOI Act).

2.  I am authorised to make internal review decisions under the FOI Act.

Decision summary

3.  For the reasons set out below, I have decided to vary the primary decision dated 16 November
2023 (the primary decision). I have decided to release informa�on contained on pages 13, 25,
26, 29, 30, 36, 37, 39 and 40 of the document bundle that was previously redacted under sec�on
47C(1) of the FOI Act.

4.  In respect of the balance of the material, I aﬃrm the primary decision that the material
iden�ﬁed in the atached Schedule of Documents (Atachment B) is exempt from disclosure
under sec�ons 34 (Cabinet-related material), 42 (legal professional privilege), 47C (delibera�ve
material), 47E(d) (certain opera�ons of the agency) and 47F (personal privacy).

Background

5.  On 17 August 2023, the department received your request for access to documents under the
FOI Act.

6.  On 8 September 2023, the department advised you that the preliminary es�mate of the charge
for processing your request was $117.50. On 11 September 2023, you contended the calcula�on
of the charge. On 11 October 2023, the department decided to reduce the charge to $87.50.

7.  On 9 November 2023, an authorised decision maker decided to set aside the decision dated 11
October 2023 and subs�tute a decision not to impose a charge fol owing no�ﬁca�on from the
Oﬃce of the Australian Informa�on Commissioner that you had sought Informa�on
Commissioner review of the department’s charge decision dated 11 October 2023.

8.  On 16 November 2023, the primary decision maker advised you that 17 documents consis�ng of
67 pages fal  within the scope of your request. The primary decision maker granted access to 12
documents in part. In summary, the primary decision maker decided that certain documents

GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.educa�on.gov.au | ABN 12 862 898 150

and/or parts of documents captured by the scope of your request were exempt under the FOI
Act because they contain:

•  informa�on, the disclosure of which would reveal a Cabinet delibera�on or decision
(sec�on 34 exemp�on)
•  material subject to legal professional privilege (sec�on 42 exemp�on)
•  delibera�ve mater, the disclosure of which would be contrary to the public interest
(sec�on 47C condi�onal exemp�on)
•  informa�on, the disclosure of which would, or could reasonably be expected to, have a
substan�al adverse eﬀect on the proper and eﬃcient conduct of the opera�ons of an
agency, contrary to the public interest (sec�on 47E(d) condi�onal exemp�on)
•  personal informa�on, the disclosure of which would be unreasonable and contrary to
the public interest (sec�on 47F condi�onal exemp�on).

9.  On 17 November 2023, the department received your request for internal review.

Reasons for decision
10. In accordance with sec�on 54 of the FOI Act, FOI applicants have a right to apply for internal
review of an ‘access refusal decision’, as deﬁned in sec�on 53A of the FOI Act. An access refusal
decision includes a decision refusing access to a document in accordance with a request.

11. In reaching my decision, I took the fol owing material into account:

•  the primary decision dated 16 November 2023
•  your correspondence dated 17 November 2023 seeking internal review of the
department’s primary decision
•  consulta�ons with relevant departmental oﬃcers
•  consulta�ons with another Commonwealth Government agency who was consulted at
the primary decision stage
•  the FOI Act
•  the guidelines issued by the Australian Informa�on Commissioner under sec�on 93A of
the FOI Act (the FOI Guidelines).

Scope of your request for internal review

12. Your request for internal review states “I am writing to request an internal review of Department
of Education's handling of my FOI request 'LEX71589 corro - DoE'. It relates speciﬁcal y to the
s 47C exemptions.” You then go on to provide conten�ons with regard to the applica�on of
sec�on 47C to the documents in the primary decision. For this reason, I understand your request
for internal review to be limited to the applica�on of sec�on 47C to parts of the documents.

13. However, in accordance with part VI of the FOI Act, an internal review of a decision involves the
making of a “fresh” decision. On this basis, I have also considered whether the documents
iden�ﬁed in the Schedule of Documents are exempt under the other exemp�on provisions
applied by the primary decision maker.

Sec�on 22 of the FOI Act

14. I have decided that some of the documents fal ing within the scope of your request contain
exempt and/or irrelevant material. In this regard, sec�ons 22(1) and (2) of the FOI Act provide
that:

Scope
(1)  This section applies if:
(a)  an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)  it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modiﬁed by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably be
regarded as irrelevant to the request; and
(c)  it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modiﬁcations; and
(ii)
the resources available to modify the document; and
(d)  it is not apparent (from the request or from consultation with the applicant) that the
applicant would decline access to the edited copy.

Access to edited copy
(2)  The agency or Minister must:
(a)  prepare the edited copy as mentioned in paragraph (1)(b); and
(b)  give the applicant access to the edited copy

15. In your FOI request dated 17 August 2023, you excluded personal informa�on about any “sub-
SES staﬀ” from the scope of your request. You also excluded documents that were processed in
response to your FOI requests to Services Australia with reference numbers Lex 71589 and
73069 and your request for internal review with reference number Lex 74480. Accordingly, I
have maintained the dele�on of this material consistent with the primary decision.

16. Consistent with the primary decision, I have also retained the dele�on of material that fal s
outside the scope of your request, namely:
•  informa�on rela�ng to the Family Assistance Legislation Amendment (Cheaper Child
Care) Bill 2022
•  material rela�ng to general departmental processes, and
•  details about other FOI requests received by the department.

17. In accordance with sec�on 22 of the FOI Act, I have redacted exempt and irrelevant material
where possible from the documents and have decided to release the remaining material to you.

Sec�on 34 of the FOI Act

18. The primary decision maker decided that the documents iden�ﬁed in the Schedule of
Documents atached to the primary decision are exempt under sec�on 34 of the FOI Act
(Cabinet-related material).

19. I agree with the reasons given by the primary decision maker and aﬃrm the primary decision
that the material iden�ﬁed in the Schedule of Documents is exempt under this provision.

Sec�on 42 of the FOI Act

20. The primary decision maker found that some of the content contained in the documents is
exempt under sec�on 42 of the FOI Act (legal professional privilege).

21. I have considered the basis on which the primary decision maker made this decision and concur
with the primary decision maker’s ﬁndings regarding the applica�on of this exemp�on to parts
of the documents. Accordingly, I aﬃrm the primary decision that the material iden�ﬁed in the
Schedule of Documents is exempt under sec�on 42 of the FOI Act.

Sec�on 47C of the FOI Act

22. The primary decision maker decided that certain documents, iden�ﬁed in the Schedule of
Documents, contain material that is exempt under sec�on 47C(1) of the FOI Act.

23. In your request for internal review, you stated:

I put to DoE that they have dressed muton up as lamb. That is, contrary to s 11B(4)(a), DoE has
expressly and unlawfully considered whether access to the documents ‘could result in embarrassment
to the Commonwealth government’. If it were not embarrassing, then on what basis could its
disclosure ‘reasonably be expected to have an adverse impact on the eﬀec�veness of interagency
consulta�ons in the future’?

Further, to the extent that the informa�on is both delibera�ve mater and embarrassing, I submit that
the text, context, and purpose of the FOI Act requires s 11B(4)(a) to trump s 47C. Otherwise, the
Commonwealth would rou�nely do exactly what DoE has done, and cloak their s 11B(4)
considera�ons in the neutral colours of ss 47B-47J. Moreover, unless s 11B(4) trumps s 47C, applicants
are le� with no ability to remedy the Commonwealth’s inten�onal thwar�ng of ss 3-3A of the FOI Act.

Alterna�vely, if embarrassment is not the muton, ‘inhibi�on of frankness and candour’ is.
‘Reasonably be expected to have an adverse impact on the eﬀec�veness of interagency consulta�ons
in the future’ is simply a diﬀerent way of complaining that it would inhibit frankness and candour,
given DoE has become aware that inhibi�on of frankness and candour is a weak ground of exemp�on.
Because, as the IC Guidelines (‘ICG’) say:
•  ‘Agencies should start with the assump�on that public servants are obliged by their posi�on
to provide robust and frank advice at all �mes and that obliga�on wil  not be diminished by
transparency of government ac�vi�es’ (ICG [6.83])
•  ‘… transparency of the work of public servants should be the accepted opera�ng
environment and fears about a lessening of frank and candid advice correspondingly
diminished’ (ICG [6.84])
•  There is nothing ‘special and speciﬁc’ that jus�ﬁes DoE’s claim (ICG [6.85]).

In addi�on, the s 47C exemp�on does not apply because:
•  Freedom of informa�on requests are not a func�on of DoE (ICG [6.60])
•  The informa�on is procedural or day to day content (ICG [6.66])

•  Disclosure would ‘reveal the reason for a government decision and any background or
contextual informa�on that informed the decision’ (ICG [6.19(a)(i )]
•  Disclosure would ‘inform the community of the Government’s opera�ons, including, in
par�cular, … prac�ces … followed by the Government in its dealings with members of the
community’ (ICG [6.19(a)(i)]) with regards to the FOI Act itself, of which there is arguably no
higher way to ‘promote the objects of the FOI Act’ (s 11B(3)(a))
•  Consequently, the decision that ‘the beneﬁt to the public resul�ng from disclosure is
outweighed by the beneﬁt to the public of withholding the informa�on’ (ICG [6.27]) is plainly
wrong.

24. In regard to the documents exempted by the primary decision maker under sec�on 47C(1) of the
FOI Act, I have decided to vary the primary decision and release informa�on contained on pages
13, 25, 26, 29, 30, 36, 37, 39 and 40 of the document bundle that was previously redacted under
this provision.

25. I have decided to aﬃrm the primary decision to withhold from release some of the content
redacted under sec�on 47C(1) appearing on page 13 of the document bundle, as iden�ﬁed in
the Schedule of Documents.

26. As set out in paragraph 6.52 of the FOI Guidelines, sec�on 47C condi�onal y exempts documents
containing delibera�ve mater. Delibera�ve mater is content that is in the nature of, or rela�ng
to either:

•  an opinion, advice or recommenda�on that has been obtained, prepared or recorded or
•  a consulta�on or delibera�on that has taken place, in the course of, or for the purposes
of, a delibera�ve process of the government, an agency or a minister.

27. The main requirements of this condi�onal exemp�on are that a document (FOI Guidelines,
paragraph 6.52 to 6.88):

•  contains or relates to ‘delibera�ve mater’ that was prepared for a ‘delibera�ve purpose’
(sec�on 47C(1))
•  the material is not ‘purely factual’ or non-delibera�ve (sec�on 47C(2)), and
•  it would be ‘contrary to the public interest’ to give access at this �me (sec�on 11A(5)).

28. As noted above, I have decided to vary the primary decision with respect to al  material
previously redacted under sec�on 47C(1) except for some of the material appearing on page 13
as iden�ﬁed in the Schedule of Documents. I am sa�sﬁed this material was prepared for the
purpose of consul�ng and obtaining advice about the applica�on of an FOI exemp�on to
material on which the department was consulted by Services Australia.

29. In your submissions, you contend that ‘freedom of information requests are not a function of
DoE (ICG [6.60]).’ While processing FOI requests is not explicitly listed in the discussion at
paragraph 6.60 of the FOI Guidelines, which you cited in your submissions, it is my view that the
func�ons discussed in paragraph 6.60 of the FOI Guidelines are examples to help guide FOI
decision-makers in deciding whether sec�on 47C(1) applies to documents captured by an FOI
request and are not intended to be exhaus�ve. I also note that paragraph 6.60 states that ‘the
non-policy decision making processes required when carrying out agency, ministerial or
governmental functions, such as code of conduct investigations, may also be deliberative
processes.’ I am sa�sﬁed managing FOI requests cons�tutes a non-policy decision making
process as contemplated in this part of the FOI Guidelines. Accordingly, it is my view that
processing FOI requests is a func�on of the department and, as such, material revealing

delibera�ve processes rela�ng to this func�on is capable of falling within the sec�on 47C(1)
condi�onal exemp�on.

30. I am sa�sﬁed that any factual material in the documents is an integral part of the delibera�ve
content and is intertwined with the delibera�ve content such that it is not possible to release it
without also releasing delibera�ve material. I am also sa�sﬁed that the informa�on is not
opera�onal informa�on as deﬁned in sec�on 8A of the FOI Act.

31. Accordingly, I have decided that the material iden�ﬁed in the Schedule of Documents is
condi�onal y exempt under sec�on 47C(1) of the FOI Act.

Public interest

32. Sec�on 11A(5) of the FOI Act provides:

The agency or Minister must give the person access to the document if it is condi�onally exempt at a
par�cular �me unless (in the circumstances) access to the document at that �me would, on balance,
be contrary to the public interest.

33. When weighing the public interest for and against disclosure under sec�on 11A(5) of the FOI Act,
I have taken into account the following submissions you made in your request for internal
review that are relevant to the public interest test:

•  “Disclosure would ‘reveal the reason for a government decision and any background
or contextual information that informed the decision’ (ICG [6.19(a)(i )]
•  Disclosure would ‘inform the community of the Government’s operations, including,
in particular, … practices … fol owed by the Government in its dealings with members
of the community’ (ICG [6.19(a)(i)]) with regards to the FOI Act itself, of which there
is arguably no higher way to ‘promote the objects of the FOI Act’ (s 11B(3)(a))
•  Consequently, the decision that ‘the beneﬁt to the public resulting from a disclosure
is outweighed by the beneﬁt to the public of withholding the information’ (ICG [6.27]
is plainly wrong.”

34. While I consider disclosure may promote the objects of the FOI Act to a smal  extent, I consider
this factor is outweighed by the factors weighing against disclosure. In par�cular, I have
considered the extent to which disclosure could reasonably be expected to prejudice the
department’s ability to eﬃciently and eﬀec�vely manage FOI consulta�on requests received
from other Australian Government agencies and prejudice the department’s ability to obtain
similar informa�on in the future.

35. With respect to your submissions, I do not accept that disclosure of the informa�on would
reveal the reason for a government decision and any background or contextual informa�on that
informed the decision, nor do I accept that disclosure would inform the community of the
Government’s opera�ons, including, in par�cular, prac�ces fol owed by the Government in its
dealings with members of the community. The content I have decided to withhold from release
under sec�on 47C(1) does not reveal the reason for a government decision or any meaningful
background or contextual informa�on that informed a decision, nor does it disclose informa�on
which would have the eﬀect of informing the community about prac�ces fol owed by the
Government in its dealings with members of the community.

36. For completeness, I note that I have not taken into account any of the irrelevant factors set out
in sec�on 11B(4) of the FOI Act in making this decision. These irrelevant factors are:

•  access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of conﬁdence in the Commonwealth Government
•  access to the document could result in any person misinterpre�ng or misunderstanding
the document
•  the author of the document was (or is) of high seniority in the agency which the request
for access to the document was made
•  access to the document could result in confusion or unnecessary debate (sec�on
11B(4)).

Sec�on 47E(d) of the FOI Act

37. The primary decision maker found that certain parts of the documents are condi�onal y exempt
under sec�on 47E(d) of the FOI Act. I have reviewed the primary decision maker’s reasoning in
this regard as well as the relevant parts of the documents and agree with the primary decision
maker. Accordingly, I aﬃrm the primary decision regarding the applica�on of sec�on 47E(d) of
the FOI Act, including the public interest considera�ons set out in the primary decision.

Sec�on 47F of the FOI Act

38. The primary decision maker decided that certain documents, iden�ﬁed in the Schedule of
Documents atached to the primary decision, contain personal informa�on that is exempt under
sec�on 47F(1) of the FOI Act.

39. I have had regard to the reasons given by the primary decision maker and have decided to aﬃrm
the primary decision to withhold this material from release in accordance with this condi�onal
exemp�on on the same basis as set out in the primary decision, including the public interest
considera�ons.

Rights of review

40. I have enclosed informa�on about your rights of review under the FOI Act at Atachment A.

41. Should you have any ques�ons, please do not hesitate to contact me via email at
foi@educa�on.gov.au.

Yours sincerely

Genevieve
Authorised decision maker
Freedom of Informa�on Team
Department of Educa�on

15 December 2023

Atachment A
YOUR RIGHTS OF REVIEW
Applying for external review by the Australian Informa�on Commissioner
If you do not agree with this decision, you can ask the Australian Informa�on Commissioner to
review the decision.
You will have 30 days to apply in wri�ng for a review by the Australian Informa�on Commissioner.
You can lodge your applica�on in one of the following ways:
Online:
htps://forms.business.gov.au/smar�orms/servlet/SmartForm.html?formCode=ICR 10

Email:
xxxxx@xxxx.xxx.xx

Post:
Australian Informa�on Commissioner

GPO Box 5218

SYDNEY NSW 2001

Complaints to the Australian Informa�on Commissioner
Australian Information Commissioner
You may complain to the Australian Informa�on Commissioner about ac�on taken by an agency in
the exercise of powers or the performance of func�ons under the FOI Act.
A complaint to the Australian Informa�on Commissioner must be made in wri�ng and can be lodged
in one of the fol owing ways:
Online:
htps://forms.business.gov.au/smar�orms/servlet/SmartForm.html?formCode=ICCA 1
Email:
xxxxx@xxxx.xxx.xx

Post:
Australian Informa�on Commissioner

GPO Box 5218

SYDNEY NSW 2001

9.
25-28
13.02.2023
Emails
Grant access in s 34(3)
Primary decision
part
s 42

s 47C
Page 26: Cabinet material deleted under
s 47E(d)
sec�on 34(3)

Page  26:  legal  professional  privilege
material deleted under sec�on 42

Pages  25-26:  delibera�ve  processes
material deleted under sec�on 47C

Page  27:  opera�ons  of  an  agency
informa�on  deleted  under  sec�on
47E(d)

Exempt  and  irrelevant  material  deleted
under sec�on 22

Decision on internal review

Vary  the  primary  decision  to  release
content  previously  redacted  under
sec�on 47C on pages 25-26 and to delete
material  previously  redacted  under
sec�on  47C  on  page  25  as  irrelevant
material under sec�on 22.

Aﬃrm primary decision in rela�on to the
redac�on of the balance of the material
under sec�ons 34(3), 42 and 47E(d).

Irrelevant  and  exempt  material  deleted
under sec�on 22.