28 September 2023
Mr Robert Not Given
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Robert,
Freedom of Information request (FOI-2023-10088) – Access decision
1. I refer to your email dated 29 August 2023 in which you requested access to documents under the
Freedom of Information Act 1982 (FOI Act). Your request for documents was framed in the
fol owing way:
‘Under the FOI Act 1982 (Cth), I request access to any and al documents (including decisions)
issued by officials in the Office of the Commonwealth Ombudsman between 1 September 2020
and 31 October 2020 relating to matter 2019-402149.’
Decision
2. I am an officer authorised under s 23 of the FOI Act to make decisions in relation to FOI requests.
3. Our Office has identified six (6) documents relevant to your request. I have decided:
to refuse access to 6 documents.
4. A schedule setting out the relevant documents is at Attachment B. Our Office identified the
documents by searching our electronic records management system and our case management
system.
Reasons
5. My findings of fact and reasons for refusing access to the material are as fol ows.
6. In making my decision I had regard to the fol owing:
the terms of your request
relevant provisions of the FOI Act
the Australian Information Commissioner’s Guidelines on FOI, available at
www.oaic.gov.au (the FOI Guidelines)
relevant case law and decisions; and
The fact that you have used the Right to Know website to make your request, and that
any documents released wil be published online
Access refusal
Proper and efficient conduct of the operations of the agency
7. 6 documents are exempt from release, pursuant to s 47E which provides:
A document is conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to,:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of the
agency.
8. Al documents located and within scope of your request are in relation to a complaint made to this
office and are exempt in ful from release under s 47E(d) of the FOI Act. The FOI Guidelines state at
paragraph 6.122:
The exemption may also apply to documents that relate to a complaint made to an
investigative body. The disclosure of this type of information could reasonably affect the
wil ingness of people to make complaints to the investigative body, which would have a
substantial adverse effect on the proper and efficient conduct of the investigative body’s
operations.
9. Ombudsman investigations are dealt with in private pursuant to s 8(2) of the Ombudsman Act
1976, and Ombudsman officers are to observe confidentiality with respect to information
disclosed under the Act (see s 35).
10. As noted in Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr
11 (26 April 2012) (‘ABC’) at [33]:
“the Ombudsman Act establishes a framework within which the Ombudsman’s investigations
are conducted in private, and information disclosed or obtained under the Act is treated
confidential y…Disclosure, under the FOI Act, of information provided to the Ombudsman by
complainants in such circumstances would affect the wil ingness of people to make complaints
to the Ombudsman in the future. That would have a substantial adverse effect on the proper
and efficient conduct of the Ombudsman’s operations”
11. I have considered the requirement outlined in s 11A of the FOI Act, that access must general y be
given to a conditional y exempt document unless it would be, on balance, contrary to the public
interest. In considering whether access would, on balance, be contrary to the public interest, I
have considered the factors for and against disclosure, including the factors identified in s 11B(3)
of the FOI Act. I have also considered the public interest factors favouring and against disclosure in
the FOI Guidelines [6.17 – 6.19] and [6.22], as wel as matters particular to the Ombudsman’s
functions and operating environment.
12. In considering whether the public interest would require the documents to be released, the factors
against disclosure outweigh those in favour of disclosure. Specifical y:
a. Disclosure would reasonably be expected to prejudice the protection of an individual’s
right to privacy, in particular the right of complainants
b. Disclosure would reasonably be expected to prejudice the proper and efficient conduct
of investigations by the Ombudsman
c. Disclosure would reasonably be expected to prejudice the Ombudsman’s ability to
obtain confidential information;
d. Disclosure would reasonably be expected to prejudice the Ombudsman’s ability to
obtain similar information in the future.
e. Disclosure, in this instance, would be to the world at large as the application has been
made through the Right to Know website.
Personal privacy
13. In addition to the exemption above, Section 47F of the FOI Act conditional y exempts a document
where “its disclosure would involve the unreasonable disclosure of personal information about any
person.” I must give access unless access would, on balance, be contrary to the public interest. (s
11A(5))
14. ‘Personal information’ is defined in section 4 of the FOI Act as:
information or an opinion about an identified individual, or an individual who is reasonably
identifiable: (a) whether the information or opinion is true or not; and (b) whether the
information or opinion is recorded in a material form or not.
15. The documents contain personal information of complainants. I am satisfied that the relevant
information is personal information: s 4 of the FOI Act.
16. In considering whether disclosure would be unreasonable, subsection 47F(2) of the FOI Act
requires that I take into account:
the extent to which the information is wel 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 matter considered relevant.
17. The relevant information is not wel known. The individuals to whom the information relates are
not general y known to be associated with the relevant information. The relevant information is
not readily available from public sources. Release, in this instance, to a Right to Know email
address, would result in the information being published on the internet.
18. I find that release of such information would involve the unreasonable disclosure of personal
information under s 47F(1) of the FOI Act.
Public interest
19. In deciding whether access should be given to this information on the basis of public interest, I
have taken into account the public interest factors for and against disclosure, s 11B(3) of the FOI
Act, the FOI Guidelines at paragraphs 6.17 – 6.22, as wel as matters specific to this agency’s
functions and operating environment.
20. The release of complaint related material may increase scrutiny around the handling of
investigations by the Commonwealth Ombudsman. However, release of the information could
reasonably be expected to prejudice the protection of a person’s right to privacy, specifical y the
privacy of members of the public who have interacted with the Office, and undermine future
investigations.
21. Pursuant to subsection 11A(5) of the FOI Act, I have concluded that this material is not required to
be disclosed because disclosure at this time would be, on balance, contrary to the public interest.
Contact details
22. You may contact me via email at xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on
1300 362 072.
Yours sincerely
David Yalpi
Legal Officer
Legal Team
Influencing systemic improvement in public administration
Attachment B – Schedule of documents
Doc No.
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
1. 1
2
Document 1
Exempt in full
Conditional y exempt
Contains material related
under s 47E(d) –
to complaint investigation
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
2.
1
Document 2
Exempt in full
Conditional y exempt
Contains material related
under s 47E(d) –
to complaint investigation
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
3.
1
Document 3
Exempt in full
Conditional y exempt
Contains material related
under s 47E(d) –
to complaint investigation
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
Doc No.
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
(unreasonable disclosure
of personal information)
4.
4
Document 4
Exempt in full
Conditional y exempt
Contains material related
under s 47E(d) –
to complaint investigation
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
5.
1
Document 5
Exempt in full
Conditional y exempt
Contains material related
under s 47E(d) –
to complaint investigation
(substantial adverse effect Contains personal
on agency operations)
information
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information)
6.
2
Document 6
Exempt in full
Material outside scope of
Contains material related
Conditional y exempt
to complaint investigation
under s 47E(d) –
Contains personal
(substantial adverse effect information
on agency operations)
Doc No.
Pages/
Description of Document
Decision on
Exemption
Notes
Folio
access
Conditional y exempt
under s 47F of the FOI Act
(unreasonable disclosure
of personal information))
