DEFENCE FOI 397/23/24
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by Trent Morrison-Francis (the applicant), by the Department of
Defence (Defence), for access to the following documents under the
Freedom of
Information Act 1982 (Cth) (FOI Act):
In relation to the DVA veterans mates programme [I seek] All active Memorandum of
Understanding, Heads of Agreement, Data Sharing Agreements, and Service
Contracts that result in the sharing of veteran data, even if de-identified. I am looking
for similar documents for programs and agreements that ceased within the last 10
years or are still active.
Background
2.
On 31 October 2023, the applicant submitted a request under the FOI Act to Defence
in the following terms:
All active Memorandum of Understanding, Heads of Agreement, Data Sharing
Agreements, and Service Contracts that result in the sharing of veteran data, even if
de-identified. I am looking for similar documents for programs and agreements that
ceased within the last 10 years or are still active.
3.
On 10 November 2023, Defence formally consulted with the applicant in accordance
with section 24AB of the FOI Act. On 14 November 2023, the applicant advised:
This relates to the DVA veterans mates program and the constant sale and provision
of veterans data without consent. https://www.dva.gov.au/news/latest-
stories/statement-department-veterans-affairs-veterans-mates-program-update
4.
On 14 November 2023, Defence confirmed the scope of the FOI request as outlined in
paragraph one above.
5.
On 4 December 2023, the applicant declined to extend the period for dealing with the
request under section 15AA [extension of time with agreement] of the FOI Act.
FOI decision maker
6.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
7.
I have identified two documents as falling within the scope of the request.
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Exclusions
8.
Personal email addresses, signatures, PMKeyS numbers and mobile telephone
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
9.
I have decided to:
a. partially release two 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 section(s) 47E(d) [Public
interest conditional exemptions - certain operations of agencies] and 47F
[Public interest conditional exemptions – personal privacy] of the FOI Act; and
b. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
10.
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); and
e. consultation with the Department of Veterans’ Affairs.
REASONS FOR DECISION Section 22 – Access to edited copies with exempt or irrelevant matter deleted
11.
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.
12.
The identified documents contains exempt material and information (signatures) that
does not relate to the request.
13.
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 47E(d) –Public interest conditional exemptions – certain operations of agencies
14.
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:
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(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of the agency.
15.
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.
16.
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.
17.
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.
18.
The Guidelines provide, 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 documents 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.
19.
Accordingly, I am satisfied that all staff information contained within the documents
is conditionally exempt under section 47E(d) of the FOI Act.
Section 47F – Public interest conditional exemptions - personal privacy
20. Section 47F(1) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including
a deceased person).
21.
The FOI Act shares the same definition of ‘personal information’ as the
Privacy Act 1988 (Cth). Furthermore, the Guidelines provide that:
6.128 Personal information means 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.
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22. I found that the documents contain personal information of third party individuals. This
includes names, positions and contact details, which would reasonably identify the third
parties.
23. In my assessment of whether the disclosure of this personal information is
unreasonable, I considered the following factors in accordance with section 47F(2) of the
FOI Act:
a. the extent to which the information is well known;
b. 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;
c. the availability of the information from publicly accessible sources; and
d. the effect the release of the personal information could reasonably have on the
third party.
24.
I found that the specific information listed is not well known and the information is
not readily available from publicly accessible sources. I consider disclosure, in
absence of consent, is likely to cause significant concern to the relevant individuals.
25.
Accordingly, I am satisfied that the specified information in the documents is
conditionally exempt under section 47F of the FOI Act.
Public interest considerations – sections 47E and 47F
26.
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.
27.
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.
28.
In my view, disclosure of this information would not increase public participation in
the Defence process (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).
29.
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:
the management function of an agency; and
the personnel management function of an agency.
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30.
It is in the public interest that Defence efficiently and productively operates with
regard for the health and wellbeing of its personnel. As I have established, 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.
31.
Furthermore, I find disclosure of the conditionally exempt under section 47F would
compromise the personal privacy of those employees associated with Defence
activities. While I accept there is a public interest in ensuring Defence undertakes its
functions in a transparent and proper manner, there is also a public interest in
maintaining the roust advice, options and recommendations provided by other
agencies as part of these processes.
32.
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.
33.
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 47E(d) and 47F of the FOI Act.
James
Digitally signed by
HAWTHORN James HAWTHORN 2
Date: 2023.12.15
2
14:08:03 +10'00'
James Hawthorn
Accredited Decision Maker
Military Personnel Organisation
Department of Defence