DEFENCE FOI 480/23/24
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by Simon Harris (the applicant), received 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 JTF 633.
1.
The initial document which established the JTF633 (there should only a few
documents)
2.
Each document which assigned or authorised the CJTF633 and DCJTF633
(say, two documents per year, so ~40 documents)
3.
An org chart for each of the above changes (so another ~20 documents)
In relation to assignment of SOTG/TF66:
4.
The documents which assigned a commander to SOTG/TF66 (there should
only be one or two per year, so maximum 40)
5.
The documents which assigned or gave control of SOTG/TF66 to anyone
outside of Australian chain of command, e.g. to ISAFSOF (estimated
between 10-30 documents).
Save for item 3, the request relates only to the formal instruments or documents, in
other words, they are likely to be letters or in a similar format and signed, and
would not be in an informal email format (although they may be attachments to
emails). Given the effect and importance of these documents they should be well
managed in a centralised location and easy to obtain (i.e. intensive and broad
searches should not be required).
Background
2.
On 26 November 2023, the applicant submitted a request under the FOI Act to
Defence in the following terms:
1. documents authorising or establishing JTF 633 and any updates or
amendments.
2. documents assigning any command or control of SOTG/Task Force 66 to any
non-ADF chain of command.
3.
On 12 December 2023
period for dealing with the request until 12 January 2024 in accordance with section
15AA [extension of time with agreement] of the FOI Act.
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4.
On 4 January 2024, Defence wrote to the applicant seeking clarification regarding the
scope of their request and their agreement to a further extension of the statutory
timeframe in accordance with section 15AA [extension of time with agreement] of the
FOI Act. On the same day, the applicant refused Defences request for further time to
process their request however provided the following clarification in relation to the
scope:
To clarify by timeframe, the timeframe is from 2006 to 2014
To clarify by "points of contact", by way of example and not to limit any other
"points of contact", for instance a point of contact may be ISAF SOF or COM
ISAF SOF.
5.
On 12 January 2024, Defence formally consulted with the applicant in accordance
with section 24AB of the FOI Act. On 15 January 2024, the applicant provided a
response however did not revise the scope of their request. On 19 January 2024,
Defence wrote to the applicant providing further information regarding the magnitude
of their request. On 1 February 2024, the applicant revised the scope of their request to
the terms outlined in paragraph 1.
6.
On 9 February 2024, the OAIC issued a direction to make a revised decision under
section 55G [Procedure in IC review revocation or variation of access refusal
decision] of the FOI Act by 29 March 2024.
Scope of external review
7.
In view of the OAICs correspondence of 9 February 2024, 36 documents matching the
process.
8.
The purpose of this correspondence is to provide the applicant with a revised decision
under section 55G the FOI Act.
FOI decision maker
9.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
10.
I have identified 36 documents as falling within the scope of the request.
Exclusions
11.
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.
Revised Decision under section 55G of the FOI Act
12. I have decided to:
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a. partially release 36 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 33 [Documents affecting
national security, defence or international relations] of the FOI Act;
b. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
13. 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. advice received from subject matter experts within Defence.
REASONS FOR DECISION
Section 22 Access to edited copies with exempt or irrelevant matter deleted
14.
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.
15.
The documents contain exempt material and information that does not relate to the
request.
16.
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 33(a) Documents affecting national security, defence or international relations
17.
Section 33(a) of the FOI Act states:
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i)
the security of the Commonwealth
(ii)
the international relations of the Commonwealth
18.
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.
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28.
I found that the information contains personal information of a number of individuals.
The documents include names and email addresses which if disclosure, could
reasonably be expected to identify the third parties.
29.
In my assessment of whether the disclosure of personal information is unreasonable, I
considered the following factors in accordance with section 47F(2):
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.
30.
I found that the personal information relating to the third parties is not readily
available from publicly accessible sources and could reasonably identify or cause
harm to the individuals.
31.
Accordingly, I am satisfied that the information is conditionally exempt under section
47F of the FOI Act.
Public interest considerations - section 47F
32.
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.
33.
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.
34.
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).
35.
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:
