18 October 2023

Ben Fairless
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

RE: FREEDOM OF INFORMATION REQUEST 2024-00111

Dear Ben,

The purpose of this letter is to give you a formal decision about access to documents that you requested
under the Freedom of Information Act 1982 (Cth) (“FOI Act”).

I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to FOI requests.

Your request was received by Australia Post on 18 August 2023. You are seeking documents that relate to
the use of the gTLD (.auspost), specifically:

•  requests to create domains on the gTLD;
•  zone files for domains on the gTLD;
•  applications from registrants (people who want a domain) to the Registrar for domains on the gTLD;
•  all registry rules created by the Registry for the gTLD.  (“Request”).

It is my view that documents matching the description of your request should not be released under the FOI
Act.  Further, I note that the documents matching the description of your request have not been listed in this
section 26 notice.

The non-inclusion of a schedule of documents to an access decision is supported by the FOI Guidelines
issued by the Office of the Information Commissioner (“Guidelines”), paragraph 3.176, Part 3 which says:

When a decision is made, the schedule (minus any exempt material considered during the process) can be
attached to the statement of reasons.

As all the material or documents were considered exempt, they were not listed in a schedule of documents.
Nor was an ‘empty’ schedule of documents attached, given this would be of no benefit.

My formal decision and information about that decision are set out below.

Decision and reasons for decision

Your Request is formally refused under section 7(2) – commercial activities, section 47D (conditional
exemption – financial or property interests of the Commonwealth) and 47E (conditional exemption – certain
operations of agencies) of the FOI Act.

The following material was considered in making my decision:

•  documents matching the description of your request;
Freedom of
   Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

•  the FOI Act (specifically section 7, 47D and 47E) and
•  the Guidelines.

Insofar as your Request relates to applications from registrants and requests to create domains, the websites
and infrastructure associated with the gTLD are maintained for commercial trading purpose and facilitating
commercial activities and accordingly, are refused on the ground that these constitute commercial materials
(section 7(2)).

Insofar as your Request relates to content (zone files and registry rules) within documents which are not
commercial, the documents identified are conditionally exempt on the basis of section 47D and 47E.

Section 7(2)

Section 7(2) in conjunction with Schedule 2, Part I , of the FOI Act entirely exempts Australia Post from the
operation of the FOI Act in respect of documents relating to its commercial activities.

The Guidelines confirm this at paragraph 2.14, Part 2 which state:

Exemptions applying to commercial activities, security and defence  intelligence documents, and other
matters Section 7(2) (supplemented by Schedule 2, Part II) lists agencies that are exempt from the operation
of the FOI Act in relation to particular types of documents. The list includes amongst others; the Attorney-
General’s Department in relation to documents in respect of activities undertaken by the Australian
Government Solicitor and various bodies such as Australia Post, Comcare, Commonwealth Scientific and
Industrial Research Organisation (CSIRO), NBN Co and Medicare, in relation to documents in respect of
commercial activities.

Section 7(3) of the FOI Act defines commercial activities in Part II of Schedule 2 as being:

a)  activities carried on by an agency on a commercial basis in competition with persons other than
governments or authorities of governments; or
b)  activities carried on by an agency, that may reasonably be expected in the foreseeable future to be
carried on by the agency on a commercial basis in competition with persons other than governments
or authorities of governments.

For this exemption to apply, the commercial activity must be carried out in competition with persons other
than governments and government authorities.

Also, section 7(4) provides that a reference to documents in respect of particular activities (commercial
activities) should be read as ‘documents received or bought into existence in the course of, for the purposes
of, the carrying on of those activities’.

I believe that documents matching the aspects of your request described as applications from registrants and
requests to create domains, have been bought into existence in the course of and for the purposes of carrying
out commercial profit seeking activities, as described in section 7(3) of the FOI Act.  Australia Post’s Digital ID
and retail business competes against private enterprise in the services it offers.  Australia Post’s online retail
shop faces intense competition from major and boutique entities such as Officeworks, Big W, Kmart, JB HiFi,
mobile phone retailers, newsagencies, to name a few.   Australia Post’s Digital ID services also competes
against other entities.  For example, when it comes to Police Checks, Australia Post competes with
crimecheckaustralia.com.au, cvcheck.com, nationalcrimecheck.com.au among others.
Freedom of
   Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

In summary, I believe that Australia Post’s intellectual property  has  predominately been brought into
existence in the course of and for the purposes of carrying on commercial profit seeking activities and the
activities carried on Australia Post’s websites and infrastructure associated with the gTLD in a competitive
basis in competition with persons other than governments or authorities of governments.

It follows that I believe that the disclosure of the applications from registrants and requests to create domains
sought is not required.

Section 47D

Under section 47D, the FOI Act provides that a document is conditionally exempt if its disclosure would have
a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.

Paragraph 6.90, Part 6 of the Guidelines states that an agency’s property interests may be broader than
buildings and land, and include intellectual property.

The documents you seek were created as part of Australia Post’s intellectual property and therefore relate to
‘financial or property interests’ within the meaning of section 47D.

For this exemption to apply, the Guidelines state at paragraph 6.91, Part 6 that the potential effect that would
be expected to occur following disclosure must be both substantial and adverse.

Substantial adverse effect

Australia Post has devised and implemented intellectual property  which best support the efficient and
effective discharge of its responsibilities and enhance and support its commercial, reserved activities and
operations. Part of the value in the intellectual property is established in the proper maintenance of websites
and content relied on for Australia Post to conduct its commercial and statutory functions and in public trust
in the security and veracity of Australia Post’s online infrastructure and systems.

In the course of considering and responding to this application I have consulted and taken advice from the
Australia Post cyber security team who on review of the documents identified and advised the disclosure of
documents comprise a significantly increased cyber-security risk which risk is mitigated by these documents
comprising trade secrets.

Disclosure of the documents would result in an increased risk of cyber-intrusion on Australia Post websites
that would cause risk of illegal activity and interference including domains hosting online commerce and the
collection of information vital for Australia Post’s operations.  The increase cyber risk is likely to cause cost
for Australia Post’s online operations.  Further, the disclosure of the documents would disclose domains used
by secure functions of Australia Post’s intellectual property in respect of products such as Australia Post’s
MyPost application, Digital ID and other online services offered by Australia Post.

I believe that Australia Post’s financial and property interests could be substantially and adversely hindered
if Australia Post customers were aware that Australia Post’s intellectual property could become publicly
disclosed through the FOI channel.  This would affect the confidence Australia Post’s customers may have
with their dealings with Australia Post.  Customers may be reluctant to use Australia Post as they be
apprehensive that any information disclosed to Australia Post may be illegally interfered with.

Freedom of
   Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

It follows that I believe that the zone files and registry rules described in your request are exempt from
disclosure.

It is also my belief that section 47E(d) supports the non-disclosure of the documents you seek for the same
reasons listed above.

Under section 47E(c), the FOI Act provides that a document is conditionally exempt if its disclosure would or
could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the
agency.

I believe that disclosure of the documents that disclose the mapping of domains under gTLDs would make it
difficult for Australia Post to maintain domains for secure services such as Digital ID and agency services.
This could reasonably affect the willingness of people to transact with Australia Post. This would have a
substantially adverse effect on the proper and efficient conduct of Australia Post’s operations.

In summary, disclosure of the documents would have a substantial adverse effect on Australia Post’s property
interests and its operations resulting in its inability to meet its statutory requirements.

Public Interest

Under the FOI Act, access to documents covered by a conditional exemption must be given unless it would
be contrary to the public interest.  As both section 47D and section 47E are conditional exemptions, the
public interest must be considered.

The public interest is considered to be:

•  something that is of serious concern of benefit to the public, not merely of individual interest;
•  not something of interest to the public, but in the interest of the public;
•  not a static concept, and where it lies in a particular matter will often depend on the balancing of
interests;
•  necessarily broad and non-specific – what constitutes the public interest depends on the particular
facts of the matter and the context in which it is being considered; and
•  related to matters of common concern or relevance to all members of the public, or a substantial
section of the public.

My view is that there are several public interest factors weighing against disclosure of the documents
sought, including that such disclosure:

•  could reasonably be expected to discourage the use of Australia Post’s services;
•  could reasonably be expected to harm the interests of persons using Australia Post’s digital
services;
•  could reasonably be expected to prejudice the commercial activities of Australia Post;
•  could reasonably be expected to prejudice Australia Post’s ability to obtain and retain confidential
information; and
•  no public purpose would be achieved through release.

Conclusion

It follows that I believe that disclosure of the documents you seek is not required under then FOI Act.
Freedom of
   Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

Your review rights

If you are dissatisfied with my decision, you may apply for internal review or Information Commissioner review
of the decision.

Internal Review

Under section 54 of the FOI Act, you may apply in writing to Australia Post for an internal review of my
decision. The internal review application must be made within 30 days of the date of this letter.

Where possible please attach reasons why you believe review of the decision is necessary. The internal
review will be carried out by the FOI Review officer within 30 days.

Please send your review request in writing or email to:
FOI Review Officer
or to xxx@xxxxxxx.xxx.xx
Australia Post

GPO Box 1777
MELBOURNE VIC 3001

Information Commissioner Review

Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review my
decision. An application for review by the Information Commissioner must be made in writing within 60 days
of the date of this letter, and be lodged in one of the following ways:
online: https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
email: xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney NSW 2001

More information about an Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go to https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/.

FOI Complaints

If you are unhappy with the way we have handled your FOI request, please let us know what we could have
done better. We may be able to rectify the problem. If you are not satisfied with our response, you can make
a complaint to the Australian Information Commissioner. A complaint to the Information Commissioner must
be made in writing. Complaints can be lodged in one of the following ways:
online: https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1
email: xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney 2001

More information about complaints is available on the Office of the Australian Information Commissioner
at https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/.

If you are sure whether to lodge an Information Commissioner review or an Information Commissioner
complaint, the Office of the Australian Information Commissioner has more information
at: https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Freedom of
   Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

Yours sincerely

Anna

Anna
Freedom of Information Officer
Australia Post

Freedom of
Information
Contact:
111 Bourke St, Melbourne, VIC, 3000
E xxx@xxxxxxx.xxx.xx
PO Box 1777, Melbourne VIC, 3001

Document Outline