Defence FOI 388 23 24 Statement of Reasons.pdf

DEFENCE FOI 388/23/24
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by Mr James Smith (the applicant), dated and received on
29 October 2023 by the Department of Defence (Defence), for access to the following
documents under the Freedom of Information Act 1982 (Cth) (FOI Act):
1. the quarterly Afghanistan Inquiry Implementation Oversight Panel Reports to the Defence Minister
that have not yet been released under FOI (i.e. Report number 11 and 12).
2. any responses by the Minister, the Dept of Defence, or ADF to any of those reports (i.e. Report
number 1 to 12).
3. copies of all documents initiating, requesting or establishing the report by Andrew Hocking into
organisational "lessons learnt" during the Afghanistan Campaign (which ultimately became the report
known as "Preparing for the future: key organisational lessons from the Afghanistan campaign").
4. copies of all documents which in any way set, changed, altered, edited or commented on the scope,
terms, issues, matters or topics of the report referred to in item 3 above.
FOI decision maker
2.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
3.
I have identified one (1) document in relation to Item 1 of the request, three (3)
documents in relation to Item 3 and one (1) document in relation to Item 4.
4.
I did not identify any documents in relation to Item 2.
5.
One document identified with regard to Item 3 and one document with regard to
Item 4 have previously been released under a separate FOI. These documents, the
Afghanistan Inquiry Implementation Oversight Panel Quarterly Reports 3 and 4, were
published on the Defence FOI Disclosure log on 21 December 2022 and are publicly
available. They can be found at the following link:
x Freedom of information disclosure log | About | Defence – FOI 491/21/22
6.
As the documents are publicly available, I have not considered access as part of my
decision.
Exclusions
7.
Personal email addresses, signatures and PMKeyS numbers contained in documents
that fall within the scope of the FOI request, duplicates of documents, and documents
sent to or from the applicant are excluded from this request. Defence has only
considered final versions of documents.

Decision
8.
I have decided to:
a. partially release three documents in accordance with section 22 [access to edited
copies with exempt or irrelevant matter deleted] of the FOI Act on the grounds
that the deleted material is considered exempt under sections 33(a)(ii)
[Documents affecting national security, defence or international relations],
45 [Documents containing material obtained in confidence], 47C [Public interest
conditional exemptions - deliberative processes] and 47E(d) [Public interest
conditional exemptions - certain operations of agencies] of the FOI Act; and
b. refuse Item 2 of the request under section 24A [requests may be refused if
documents cannot be found, do not exist or have not been received] of the FOI
Act.
Material taken into account
9.
In making my decision, I have had regard to:
a. the terms of the request;
b. the content of the identified documents in issue;
c. relevant provisions of the FOI Act;
d. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines);
e. advice from the Afghanistan Inquiry Implementation Oversight Panel
Secretariat; and
f. the Terms of Reference for the Afghanistan Inquiry Implementation
Oversight Panel.
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
10.
Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of
a document where the agency has decided to refuse access to an exempt document or
that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access.
11.
Two documents contain exempt material and information (PMKeys number and
signatures) that does not relate to the request.
12.
I am satisfied that it is reasonably practicable to remove the exempt and irrelevant
material and release the documents to you in an edited form.
Section 24A – Requests may be refused if documents cannot be found, do not exist or have
not been received
13.
Section 24A(1) of the FOI Act states:

(a) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
14.
Paragraph 3.94 of the Guidelines advises the detail this statement of reasons should
include to refuse a request under section 24A(l):
…the statement of reasons given to the applicant should sufficiently identify the document, explain
why it cannot be found or is known not to exist or to be in the agency’s possession, describe the
steps the agency took to search for the document, and note the limitations of any search…
15.
To ensure all reasonable steps have been taken in relation to this request, every
reasonable avenue of locating potential documents matching Item 2 of the request has
been exhausted.
16.
Personnel searched for documents containing “Implementation Oversight Panel”.
No records were found matching the scope of Item 2 of the applicant’s request.
17.
I am satisfied that all reasonable steps have been taken to locate the documents sought
by the applicant. I am satisfied that the documents cannot be found or do not exist, and
refuse the request under section 24A(1) of the FOI Act.
Section 33(a)(ii) – Documents affecting national security, defence or international
relations
18.
Section 33(a)(ii) of the FOI Act states:
A document is an exempt document if disclosure of the document under this Act:
(b) would, or could reasonably be expected to, cause damage to:
(ii) the defence of the Commonwealth…
19.
In regard to the terms ‘would, or could reasonably be expected to’ and ‘damage’, the
Guidelines provide:
5.16 The test requires the decision maker to assess the likelihood of the
predicted or forecast event, effect or damage occurring after disclosure
of a document.
5.17 The use of the word ‘could’ in this qualification is less stringent than
‘would’, and requires analysis of the reasonable expectation rather than
certainty of an event, effect or damage occurring. It may be a reasonable
expectation that an effect has occurred, is presently occurring, or could
occur in the future.
…
5.31 The meaning of ‘damage’ has three aspects:
i. that of safety, protection or defence from something that is regarded as a
danger. The AAT has given financial difficulty, attack, theft and political or
military takeover as examples.

ii.  the means that may be employed either to bring about or to protect against
danger of that sort. Examples of those means are espionage, theft, infiltration
and sabotage.
iii.  the organisations or personnel providing safety or protection from the
relevant danger are the focus of the third aspect.
20.
In regard to ‘defence of the Commonwealth’, the Guidelines, at paragraph 5.34, refer
to previous Administrative Appeals Tribunal (AAT) decisions which provide that the
term includes:
a.  meeting Australia’s international obligations;
b.  ensuring the proper conduct of international defence relations;
c.  deterring and preventing foreign incursions into Australian territory; and
d.  protecting the Defence Force from hindrance or activities which would
prejudice its effectiveness.

21.
I have determined that the document contains information that the exposure of could
prejudice the effectiveness of the Australian Defence Force. This is because the
information pertains to core military capabilities and its release could expose
information that external entities could utilise to hinder capability. Such action could
result in damage to the defence of the Commonwealth.
22.
Accordingly, I find that this material is exempt under section 33(a)(ii) of the FOI Act.
Sections 45 – Documents containing material obtained in confidence
23.
Section 45 of the FOI Act states:
(b) A document is an exempt document if its disclosure under this Act
would found an action, by a person (other than an agency of the
Commonwealth), for breach of confidence.
24.
In relation to a breach of confidence, the Guidelines further explain:
Breach of Confidence
i.158  A breach of confidence is the failure of a recipient to keep confidential,
information which has been communicated in circumstances giving rise to an
obligation of confidence. The FOI Act expressly preserves confidentiality
where that confidentiality would be actionable at common law or in equity.
i.159  To found an action for breach of confidence (which means s 45 would
apply), the following five criteria must be satisfied in relation to the
information:
x  it must be specifically identified
x  it must have the necessary quality of confidentiality
x  it must have been communicated and received on the basis of a
mutual understanding of confidence
x  it must have been disclosed or threatened to be disclosed, without authority
x  unauthorised disclosure of the information has or will cause detriment.

25.
Upon examination of the document, I have determined that disclosure of the redacted
information would breach the confidence of the person the information was obtained
from and could be a basis for an action to be brought against the Commonwealth.
The relevant information was obtained on the basis of a mutual understanding of
confidence to ensure frank and open conversations with key stakeholders. I believe
disclosure of this information could negatively impact the willingness of stakeholders
to provide such views in the future. This may have an adverse effect on the future
supply of information in similar situations.
26.
Accordingly, I find that the relevant material is exempt pursuant to section 45 of the
FOI Act.
Section 47C – Public interest conditional exemptions - deliberative processes
27.
Section 47C(1) of the FOI Act states:
(1)  A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
(a)  an agency; or
(b)  a Minister; or
(c)  the Government of the Commonwealth.
28.
Upon examination of the document, I have identified deliberative matter – that is in
the nature of, or relating to either opinion, advice or recommendation that has been
obtained, prepared or recorded; or a consultation or deliberation that has taken place,
in the course of, or for the purpose of a deliberative process of Defence.
29.
The redacted information contains opinions, advice, recommendations and supporting
material that was gathered through consultation and remains under consideration.
30.
Section 47C(2)(b) of the FOI Act provides that deliberative matter does not include
purely factual material. The Guidelines, at paragraph 6.73, state that:
[p]urely factual material’ does not extend to factual material that is an integral part of the
deliberative content and purpose of a document, or is embedded in or intertwined with the
deliberative content such that it is impractical to excise it.
31.
I am satisfied that the documents contains matter that meets the definition of
deliberative material, and that where the content is purely factual, it is embedded in, or
intertwined with the deliberative content and cannot be excised.
32.
Therefore, I have decided that the relevant information is conditionally exempt under
section 47C of the FOI Act.
Section 47E(d) –Public interest conditional exemptions – certain operations of agencies
33.
Section 47E(d) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
(c)   have a substantial adverse effect on the proper and efficient conduct of the operations of
the agency.

34.
The Guidelines, at paragraph 6.123, provide that:
  The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the
agency is undertaking its expected activities in an expected manner.
35.
In the case of ‘ABK’ and Commonwealth Ombudsman [2022] AICmr 44, the
Information Commissioner (IC) found that where the direct email addresses and phone
numbers of agency staff are not publicly known, they should be conditionally exempt
under section 47E(d). The IC made this determination due to reasonable expectation
that the release of direct contact details would undermine the operation of established
channels of communication with the public. Further, the IC accepted that staff who
were contacted directly could be subject to excessive and abusive communications,
which may give rise to work health and safety concerns.
36.
I am satisfied that were the contact details of Defence personnel made publicly
available, it would have substantial adverse effects on the proper and efficient
operation of existing public communication channels. Further, I am satisfied of a
reasonable expectation that the information could be used inappropriately, in a manner
which adversely affects the health, wellbeing and work of Defence personnel.
Disclosure of names, email addresses and phone numbers could, therefore, reasonably
be expected to prejudice the operations of Defence.
37.
The Guidelines advise, at paragraph 6.120, that I should consider whether disclosure
of the information ‘would, or could reasonably be expected to lead to a change in the
agency’s processes that would enable those processes to be more efficient.’ Given that
the direct contact details within the document are not publicly available and that more
appropriate communication channels are already available, I am satisfied that release
of the information could reasonably be expected to lead to a change in Defence’s
processes that would not lead to any efficiencies.
38.
Accordingly, I am satisfied that all staff information contained within the documents
is conditionally exempt under section 47E(d) of the FOI Act.
Public interest considerations - sections 47C and 47E(d)
39.
Section 11A(5) of the FOI Act states:
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
40.
I have considered the factors favouring disclosure as set out in section 11B(3) [factors
favouring access] of the FOI Act. The relevant factors being whether access to the
document would:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(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 own personal information.

41.
In my view, disclosure of this information would not increase public participation in
Defence processes (section 3(2)(a) of the FOI Act), nor would it increase scrutiny or
discussion of Defence activities (section 3(2)(b) of the FOI Act).
42.
Paragraph 6.22 of the Guidelines specifies a non-exhaustive list of public interest
factors against disclosure. The factors I find particularly relevant to this request are
that release of this information could reasonably be expected to prejudice:
x  an agency’s ability to obtain confidential information;
x  an agency’s ability to obtain similar information in the future;
x  the management function of an agency; and
x  the personnel management function of an agency.
43.
While I accept there is a public interest in ensuring that Defence undertakes its
functions in a transparent and proper manner, there is also a strong public interest in
maintaining the confidentiality of the material contained within the document,
particularly those still under consideration by Defence.
44.
Further, it is in the public interest that Defence efficiently and productively operates
with regard for the health and wellbeing of its personnel. The release of the names,
email addresses and phone numbers of Defence personnel can reasonably be expected
to prejudice the management and personnel management functions of Defence.
Existing communication channels and processes enable efficient and appropriate
liaison with the public. The direct contact details of Defence personnel should,
therefore, not be disclosed, as the public interest against their disclosure outweighs the
public interest in their release.
45.
I have not taken any of the factors listed in section 11B(4) [irrelevant factors] of the
FOI Act into account when making this decision.
46.
I am satisfied, based on the above particulars, the public interest factors against
disclosure outweigh the factors for disclosure, and that, on balance, it is against the
public interest to release the information to you. Accordingly, I find that the
information is exempt under sections 47C and 47E(d) of the FOI Act.
FURTHER INFORMATION
47.
Some of the documents matching the scope of this request contained a dissemination
limiting marker (DLM). Where documents have been approved for public release, the
DLM has been struck through.

Digitally signed
Jason by Jason

WOODS
WOODS Date: 2023.11.20

18:32:55 +11'00'
Mr Jason Woods
Accredited Decision Maker
ADF Headquarters
Department of Defence