Our ref: FOI-2023-10088
26 October 2023
Mr Robert Not Given
Emailed to:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Robert
Freedom of Information request – internal review decision
1. I refer to your request for internal review of Mr David Yalpi’s decision to refuse access to
documents you requested under the
Freedom of Information Act 1982 (FOI Act).
2. I am an officer authorised under s 23(1) of the FOI Act to make internal review decisions in
relation to FOI requests.
Summary
3. Your FOI request dated 29 August 2023, was expressed in the fol owing terms:
I request access to any and all 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.
4. You were advised on 28 September 2023 of the decision to refuse access to 6 documents
located within scope of your request.
Request for internal review
5. On 30 September 2023, our Office received your request for internal review of the primary
decision under s 54B of the FOI Act. You stated that:
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Commonwealth Ombudsman's handling of my
FOI request 'FOI request - documents'.
A full history of my FOI request and all correspondence is available on the Internet at this
address:
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttoknow.org.
au%2Frequest%2Ffoi_request_documents&data=05%7C01%7CInformation.Access%40ombu
dsman.gov.au%7C593ed777bbbd4a14af9a08dbc157ada9%7C443ee9e811ff4c829e41393310
45260a%7C0%7C0%7C638316354559994251%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4
wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdat
a=4n8PrByGCajQWXAFEoHMKmcT4ImtnOmKOZsX%2FXZfQJ4%3D&reserved=0
Decision summary
6. In reviewing the earlier decision, I identified 6 documents which fel within the scope of your
request. I did this by searching our records and case management system using the case
number identifier you provided.
7. My decision is to affirm the primary decision dated 28 September 2023. My reasons for this
decision are outlined below.
Material taken into account
8. I have taken the following material into account in making my review decision:
• Your application for internal review.
• The scope of your FOI request.
• The content of the documents that fal within the scope of your request.
• Relevant provisions of the FOI Act.
• The Guidelines issued by the Office of Australian Information Commissioner under s 93A
of the FOI Act.
Decision and reasons
Proper and efficient conduct of operations of the agency: s 47E
9. Section 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.
10. Al documents located and within scope of your request are in relation to an Ombudsman
investigation of a complaint made to this office and are exempt in full from release under
s 47E(d) of the FOI Act. I outline the primary decision maker’s reasons below which I affirm,
along with additional reasons.
11. 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.
GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au
12. 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).
13. 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
confidentially…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”.
14. I am satisfied that disclosure of the documents sought, to an individual with no known
connection to the complaint and investigation and in circumstances where that information
will be made public, could reasonably be expected to have a substantial adverse effect on
the proper and efficient conduct of the operations of the agency. The Ombudsman’s ability
to exercise its functions and powers is reliant on complainants and other agencies
willingness to provide information to our Office. Public detriment will arise if the Office is
compromised in our ability to obtain confidential information in future investigations.
Public interest
15. I have considered the requirement outlined in s 11A of the FOI Act, that access must
generally 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.
16. In considering whether the public interest would require the documents to be released, the
factors against disclosure outweigh those in favour of disclosure. Specifically:
a.
Disclosure would reasonably be expected to prejudice the protection of an
individual’s right to privacy, in particular the right of the complainant.
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: s 47F
17. 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
GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au
information about any person.” I must give access unless access would, on balance, be
contrary to the public interest. (s 11A(5)).
18. ‘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.
19. The documents contain personal information of a complainant. I am satisfied that the
relevant information is personal information: s 4 of the FOI Act.
20. In considering whether disclosure would be unreasonable, s 47F(2) of the FOI Act
requires that I take into account:
• 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 matter considered relevant.
21. 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.
22. In terms of other matters considered relevant, the Ombudsman is an investigative agency
which conducts its investigations in private. There is no known link between you as the FOI
applicant and the matters dealt with in the investigation.
23. 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
24. 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 well as matters
specific to this agency’s functions and operating environment.
25. 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,
specifically the privacy of members of the public who have interacted with the Office, and
undermine future investigations.
26. 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.
GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au
Review rights
27. You have the right to seek Information Commissioner (IC) review of this decision. An
application for IC review must be made in writing within 60 days of the decision.
28. If you are not satisfied with the way we have handled your FOI request, you can lodge a
complaint with the OAIC. However, the OAIC suggests that complaints are made to the
agency in the first instance.
29. While there is no particular form required to make a complaint to the OAIC, the complaint
should be in writing and set out the reasons for why you are dissatisfied with the way your
request was processed. It should also identify the Ombudsman’s Office as the agency about
which you are complaining.
30. You can make an IC review application or make an FOI complaint in one of the following
ways:
• online at https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
• via email to
xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• by fax to 02 9284 9666.
31. More information about the Information Commissioner reviews and complaints is available
at its website:
www.oaic.gov.au/freedom-of-information/foi-review-process.
Contacts
32. If you have any questions about this letter, you may contact via email at
xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on 1300 362 072.
Yours sincerely
Jodie Hanlon
Legal Team
Influencing systemic improvement in public administration
GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au
