OFFICIAL
Reference: IR FOI 23-24/034
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
‘Me’
via Right to Know website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Me,
Notice of Internal Review Decision (s 54C(4)) – FOI 23-24/034
The purpose of this letter is to advise you of my decision following your request for internal
review of the Department of Finance’s (Finance) decision to refuse part access to documents
you requested under the
Freedom of Information Act 1982 (Cth) (FOI Act).
Background
The primary request
On 29 September 2023, Finance received your request made under the FOI Act to access the
following documents:
“For all unsuccessful (note ‘un’) act of grace applications made against ASIC for the period
1 July 2021 - 30 June 2023, I request:
−
A copy of the record entered in the SFC database regarding the application
(see FOI 22/119 Document 1)
−
Where the application was for more than $100,000 (including more than
$500,000), the Ministerial Submission regarding the application
−
Where the application was for under $100,000, the Minute that contains the
reasons for refusal (for the avoidance of doubt, this includes any sort of
briefing covered by the policy disclosed under 22/119. It may simply be an
email)
−
Where the final decision came after a reconsideration by the Ombudsman or
Federal Court, a copy of the final reasons for decision given by the
Ombudsman or Federal Court.
This request includes:
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
−
Work-related personal information of Finance and ASIC SES (e.g., name,
signature block details)
−
Work-related personal information of SES-equivalent staff in a Minister's
office (if applicable)
−
The domain of any email addresses in documents in scope
This request excludes:
−
Personal information of non-SES staff
−
Personal information of third parties (that is, this personal information is
excluded under s 22, not s 47F…”
On 19 October 2023, you agreed to revise the scope of your request to the following terms:
“... the 10 most recent decisions before 30 June 2023, where the decision:
−
is not substantially the same as another decision in the set of 10 (that is, the
facts underlying each decision are not similar), and
−
resulted in the production of a minute, or other document containing
substantive reasons for decision.
I note that personal information of third parties is excluded from the scope of my request. It
should be redacted under s 22. Once it is redacted, the remaining 'personal information' is
anonymous, and therefore ceases to be personal information. As a result, s 47F will not
arise...”
On 19 February 2024, Finance released five (5) documents which were identified as being in
scope of your request. Finance advised you of the decision to grant access in part to those
documents.
The internal review request
On 20 March 2024, you sought an internal review of that decision. Relevantly, you
contested Finance’s application of:
• section 22 – Access to edited copies with exempt or irrelevant matter deleted.
• section 42 – Documents subject to Legal Professional Privilege.
• section 47E – Public interest conditional exemptions – certain operations of
agencies.
I also understand you have sought a review of the searches and documents identified as part
of your request.
The purpose of this letter is to inform you of the outcome of the internal review.
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have decided to vary the decision relating to 5 documents, which were released to you
within the primary request by granting you further access to the documents.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
I have also decided to grant you part access to one additional document that was identified
during the course of our additional searches. The reasons provided below are applicable to
my decision on release of this document.
Specifically, I have decided to:
• vary some exemptions made under section 22(a)(ii) to grant you further access to the
documents.
• vary some exemptions made under section 47E(d) to grant you further access to the
documents.
• affirm exemptions made in accordance with section 42.
• grant part access to an additional document (document 6) subject to section 42,
47E(d) and irrelevant material removed under section 22.
In making my decision, I have had regard to the following:
• the terms of your review request;
• the content of the documents that fall within the scope of your request;
• additional searches conducted by Finance;
• consultations with internal staff;
• consultations with third parties in accordance with the FOI Act and submissions
made by those third parties;
• the relevant provisions of the FOI Act;
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines); and
• section 11B of the FOI Act.
The documents are identified in the Schedule at
Attachment A.
Reasons
I have considered your submissions seeking an internal review of the decision dated 19
February 2024, and have decided to vary and affirm those decisions, subject to the following
provisions:
Material related to legal professional privilege (section 42)
You have submitted that legal professional privilege was not adequately justified and should
not be removed on the basis that the author of the documents are not legal professionals for
the purposes of section 42. Section 42(1) provides that:
“A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal professional
privilege.”
To determine whether a communication is legally privileged regard must be had to:
• whether there is a legal adviser-client relationship;
• whether the communication was for the dominant purpose of giving or receiving
legal advice, or for use in connection with actual or anticipated litigation;
• whether the advice given is independent; and
• whether the advice given is confidential.
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OFFICIAL
Further, the FOI guidelines at paragraph 5.174 provides that legal advice can be summarised
and communicated while maintaining legal privilege:
“Modern organisations often work in teams and several people may need to know
about privileged communications, both in the requesting client organisation and in
the firm of legal advisers. Similarly, a limited disclosure of the existence and effect of
legal advice could be consistent with maintaining confidentiality in the actual terms
of the advice. The Legal Services Directions 2017 issued by the Attorney-General
require legal advices obtained by Australian Government agencies to be shared in
particular circumstances, and complying with this requirement does not waive
privilege.”
I am satisfied that parts of the documents contain information that reveals confidential and
privileged communications provided by external lawyers to the Commonwealth. This
information was communicated to another officer of the agency to assist in their decision of
an Act of Grace claim.
Furthermore, I consider that a legal adviser-client relationship exists between the external
lawyers and the Commonwealth at the time that the advice was provided, and that the advice
was brought into existence for the dominant purpose of giving legal advice.
I note for completeness, that the author of the document therefore is not required to be a
legal practitioner for LPP to apply, as the exempt material relates to external legal advice
that was provided by a lawyer in their capacity as a legal practitioner.
You have submitted that even if LPP applies, the decision maker is required to consider the
‘real harm’ test and did not. However, the ‘real harm’ test is not a relevant consideration in
determining whether advice is legally privileged.
1 Nor is it a relevant consideration under
the FOI Act for determining whether a document is legally privileged and therefore exempt
under section 42. However, paragraph 5.177 of the FOI guidelines states:
A ‘real harm’ criterion is not an element of the common law doctrine of legal
professional privilege. Likewise, the test is not a feature of the FOI Act. Historically,
government, through convention, has referenced the test as a relevant discretionary
factor in determining FOI requests.
Accordingly, I have considered whether the disclosure of the information would result in
‘real harm’ and have not taken into consideration any irrelevant factors as provided in
section 11B of the FOI Act. I am satisfied therefore, that disclosure of the legal advice
which was provided to assist in the proper decision making of one of the Department’s
functions would harm the administration of justice and would harm the sound decision
making of the Department.
Accordingly, I am satisfied that LPP applies, and I affirm the primary decision of the
application of section 42 to refuse access to parts of documents 1-6.
Material related to certain operations of agencies (section 47E)
You have submitted that the section 47E exemptions that were applied to the documents are
too broad. In considering your submission, I have reviewed the documents and have
1 The FOI Guidelines at 5.150.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
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OFFICIAL
decided to vary the decisions made in the primary request relating to section 47E. I consider
that some of the material is not subject to the exemption, and that on balance, disclosure
would be in favour of the public interest.
I have granted you further access to the documents by removing the redactions that were
previously applied.
However, I consider that other parts of those documents are exempt under this provision and
affirm the decision on those parts of the documents for the following reasons:
Section 47E of the FOI Act provides:
(d) A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
The FOI Guidelines at paragraph 6.101 provide that for section 47E to apply:
“... the predicted effect needs to be reasonably expected to occur... There must be
more than merely an assumption or allegation that damage may occur if the
document were to be released. ...
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...”
Documents 1-6 contains information relating to the decision-making process of Act of Grace
claims. Specifically, parts of the document discuss submissions made by other
Commonwealth departments in response to the Act of Grace claim, which was taken into
consideration by the decision maker.
The Department of Finance relies on the advice and submissions of other Commonwealth
departments as a prominent element of their decision making process. The material that has
been conditionally exempt would, if disclosed, identify key processes and considerations of
the Commonwealth when determining the outcome of a claim.
In
DZ and Commonwealth Ombudsman, it was found that disclosure of certain material
could adversely affect the willingness of agencies to cooperate with another investigative
body.
2 Furthermore, the IC provided that:
“It is likely that a situation will arise in future that involves information held across
more than one agency and that agencies will be less forthcoming about the issues
this raises if the information is not treated confidentially. If agencies are less
forthcoming and less willing to consider and consult on the proper course of action
in this situation, the [Ombudsman’s] investigations will be less efficient.”
2
DZ and Commonwealth Ombudsman [2014] AICmr 137.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
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OFFICIAL
I am of the view that the submissions made by ASIC and Treasury – who were consulted
about those submission – were provided with the expectation that they would not be
disclosed or at the very least, not disclosed to the world at large. Act of Gace is a
discretionary payment under the
Public Governance, Performance and Accountability Act
2013. There is no situation which creates an automatic entitlement to an act of grace
payment and a decision maker must consider all relevant facts to determine whether a
special circumstance exists to justify a payment.
3 Other agencies provide comprehensive
and candid submissions relating to specific matters to assist in the making of an act of grace
decision. Finance is reliant on the submissions of other departments to enable it to consider
all relevant material relating to the claim and determine whether a special circumstance
exists.
I am of the view that there is a real prospect that if confidential submissions obtained with
the cooperation of departments were to be released under FOI, departments would be less
forthcoming with the breadth of material and views provided in future submissions. If this
occurred, this would materially impact the quality of decision making in relation to act of
grace applications.
Accordingly, I am satisfied that the documents subject to section 47E(d) are conditionally
exempt on the basis that disclosure would or could reasonably be expected to have a
substantial adverse effect on the operations of the agency.
Public Interest Test (section 11A and 11B)
As I have found that relevant material is conditionally exempt under s 47E(d), I am required
to consider whether it would be contrary to the public interest to grant access to the
conditionally exempt material at this time (s 11A(5)).
Factors favouring disclosure
The FOI Act sets out four factors favouring access, which must be considered if relevant.
They are that disclosure would:
(a) promote the objects of the Act;
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her personal information (s 11B(3)).
In particular, I consider that (a) and (c) are the relevant factors favouring access to the
documents in this instance. I have turned my mind to the public interest considerations of
the relevant 2 factors. Specially, I consider that the following public interest factors are in
favour of disclosure:
(a) promotes the objects of the FOI Act, including to:
i. inform the community of the Government’s operations, including, in
particular, the policies, rules, guidelines, practices and codes of conduct
followed by the Government in its dealings with members of the community;
ii. reveal the reason for a government decision and any background or
contextual information that informed the decision;
iii. enhance the scrutiny of government decision making;
3
Public Governance, Performance and Accountability Act 2013 (Cth).
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
… (c) promote effective oversight of public expenditure.
Factors against disclosure
Comparatively, the FOI Act does not list any factors weighing against disclosure. The FOI
guidelines at paragraph 6.22 provide a non-exhaustive list of factors against disclosure. I
consider that the following public interest factors against disclosure are relevant:
… (h) could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future by disclosing considerations and claims made by other
agencies.
… (n) could reasonably be expected to prejudice the management function of an agency by:
• disclosing the deliberations and claims of other parties.
• disclosing the relevant considerations and recommendations of a decision
maker.
• disclose the factors considered when determining an Act of Grace claim.
I note that many of the documents have been varied with only limited exemptions applied. I
am satisfied that the public interest factors against disclosure outweighs the factors
favouring disclosure. I recognise that disclosure would promote the objects of the FOI Act,
specifically revealing the reason for a government’s decision and any background that
informed that decision. However, I have given weight to the fact that the management of the
function, namely the Act of Grace payments, would be adversely prejudiced by the release
of this information at this time. Notably, Act of Grace is a discretionary payment which does
not have any guidance or criteria. I consider that the disclosure of this information could
disclose factors considered by a decision maker and could be used to tailor a claim to assist
in the outcome of a claim.
As such, I am satisfied that the documents which I have found to be conditionally exempt
under section 47E(d) of the FOI Act would, on balance, be contrary to the public interest.
Access to edited copies with exempt or irrelevant matter deleted (section 22)
You have submitted that section 22 of the FOI Act was liberally applied to your request
which resulted in information relevant to your request being redacted. I note that the terms
of your request included your agreement to remove non-SES personal information and third-
party personal information.
I have considered the examples you have provided in your submissions and have varied the
primary decision to remove the redaction from the following information within the
documents:
• The number of Act of Grace payments.
• The amounts of Act of Grace payments.
• The number of ‘statements of reasons’.
• The name of Assistant Secretary or A/g Assistant Secretary.
• Other information I considered to be relevant to your request and should be released
to you.
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OFFICIAL
Your submissions also question the redactions of the names of corporations made under
section 22. These redactions have been applied in line with the terms of your request and on
the basis that they are irrelevant. As you have specified, the terms of your revised request
removed third-party personal information. I understand that corporations do not possess
personal information.
The Office of the Australian Information Commissioner (OAIC) provides guidance on what
is personal information in the government context.
4 The guidance states that information
does not have to be explicitly recognised as personal information to constitute personal
information under the Privacy Act.
5 The types of information that are personal information
are unlimited and can vary widely. This can also include information about an individual’s
business or work activities. Although the name of the corporation cannot have personal
information, the disclosure of this information would likely identify other individuals due to
the unique nature of the documents. Specifically, the disclosure of the names of the
company would directly or could reasonably identify the owner of the company, and
unreasonably disclose the individual’s personal information. I consider that the individuals
have similar names to the company or can be identified through means of online searches.
The OAIC guidance provides that:
“An individual can be ‘identifiable’ where the information is able to be linked with
other information that could ultimately identify the individual.”
I am satisfied that the information ‘about’ an individual or individuals in the documents can
be inferred by the connection between the information and the individual.
Accordingly, I have affirmed the removal of this information as third-party personal
information, on the basis that it is likely to identify other individuals including within the
documents.
Validity of searches/Other matters
In the submissions you have raised concerns surrounding the validity of searches on the
basis that you consider:
• Attachments to the decisions should be provided; and
• Only 5 (now 6) decisions were provided, when the scope of your request sought the
10 most recent decisions.
However, your initial request of 29 September 2023 sought only “the Minute that contains
the reasons for refusal” for act of grace applications that were under $100,000. Further your
email of 19 October 2023 narrowed the scope to decisions that “resulted in the production of
a minute,
or other document containing substantive reasons for decision”. As a result, it was
clear that the scope of your request sought only a statement of reasons for act of grace
decisions
. As attachments to the decision briefs are supporting documentation to assist the
delegate to reach a decision, the attachments are not considered to be part of the substantive
reasons for the decision and not within scope of your request. You are able to request these
attachments in a new FOI request by emaili
ng xxx@xxxxxxx.xxx.xx.
4 See:
What is personal information? | OAIC
5
Privacy Act 1988 (Cth).
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
Paragraph 9.34 of the FOI Guidelines provide the principles of internal review decision
making, as a tool to determine best practice rather than a formal procedure or criteria. I have
considered these principals and have relevantly undertaken additional searches for
documents held by the agency and consulted with other agency staff as to the review of your
request.
This search process identified 1 additional document in scope of your request. When asked
about the decisions located, the business area advised that no more than the 6 documents
were identified, as they were the only documents that met the terms of your request. That is,
no more than 6 decisions of unsuccessful Act of Grace claims were identified in their
searches.
Review and appeal rights
You are entitled to request an external review by the OAIC of my decision. The process for
review and appeal rights is set out at
Attachment B.
Publication
Finance will publish the documents released to you on our
Disclosure Log. Finance’s policy
is to publish the documents the working day after they are released to you.
If you have any questions regarding this request, please contact the FOI Team on the above
contact details.
Yours sincerely,
Rachel Antone
First Assistant Secretary
Risk, Insurance & Discretionary Payments Division
Department of Finance
10 May 2024
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
ATTACHMENT A
SCHEDULE OF DOCUMENTS RELEVANT TO FOI 23-24/034
Document Date of No. of Description of Document
Decision
Relevant exemptions
No.
Document Pages
1
01/10/2021 5
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
2
30/09/2022 5
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
3
17/02/2023 6
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
4
24/02/2023 6
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
5
3/05/2023
6
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
6
29/07/2022 4
Minutes related to Act of Grace
Release in part
s42
claims
s47E(d)
s22(a)(ii)
10
Updated to ‘A’ i
OFF
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IC
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chedule is attached ATTACHMENT B
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. You can seek a
review of our decision by an external review (ER) made by the Australian Information
Commissioner (IC).
GPO Box 5218
Review by the Australian Information
Sydney NSW 2001
Commissioner (IC)
The IC’s enquiries phone line is
The Office of the Australian Information
1300 363 992.
Commissioner (OAIC) is an independent
office who can undertake an ER of our
Can I appeal the Information
decision under the FOI Act. The IC can
review access refusal decisions, access grant
Commissioner’s external review
decisions, refusals to extend the period for
decision?
applying for an IR, and IR decisions.
Yes. You can appeal the Information
Commissioner’s ER decision to the
If you are objecting to a decision to refuse
Administrative Appeals Tribunal (AAT).
access to a document, impose a charge, or a
refusal to amend personal information, you
There is a fee for lodging an AAT application
must apply in writing to the IC within 60
(as at 17 February 2023 it is $1,011).
calendar days of receiving our decision.
Further information is accessible
here.
Do I have to pay for an external review?
No. An ER are free.
The AAT’s number is 1800 228 333.
E
xternal review (Information Commissioner
Complaints
Review)
For an ER, you must apply to the OAIC in
Making a complaint to the Office of the
writing. The OAIC ask that you commence a
Australian Information Commissioner
review by completing their online form
here.
You may make a written complaint to the
OAIC about actions taken by us in relation to
Your application must include a copy of the
your application.
notice of our decision that you are objecting
to, and your contact details. You should also
Further information on lodging a complaint is
set out why you are objecting to the decision.
accessible
here.
Email: xxxxx@xxxx.xxx.xx
Investigation by the Commonwealth
Ombudsman
Post: Office of the Australian Information
Commissioner
11
OFFICIAL
The Ombudsman can also investigate
complaints about action taken by agencies
under the FOI Act. However, if the issue
complained about either could be, or has been,
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
being investigated twice. If the Ombudsman
decides not to investigate the complaint, then
they are to transfer all relevant documents and
information to the IC.
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
occur where the FOI complaint is only one
part of a wider grievance about an agency’s
actions. You will be notified in writing if your
complaint is transferred.
Complaints to the Ombudsman should be
made online
here.
The Ombudsman’s number is 1300 362 072.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
Document Outline
