Defence FOI 517 2324 Statement of Reasons.pdf

DEFENCE FOI 517/23/24

STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982

1.  I refer to the request by James Smith (the applicant), dated and received on
4 December 2023 by the Department of Defence (Defence), for access to the following
documents under the Freedom of Information Act 1982 (Cth) (FOI Act):

With reference to document EC21-002242 / Directive 07/2021 disclosed in FOI
388/23/24 (Direction), please provide:

1. Drafts of the paper "Preparing for the Future: Key Organisational Lessons
From the Afghanistan Campaign".

2. With reference to paragraph 7 of the Direction:
(a)   all notes, minutes or other correspondence from the monthly updates; and
(b)   calendar appointments, meeting invites or diary entries for the monthly
updates, between Andrew Hocking and Angus Campbell.

3. With reference to paragraph 8 of the Direction, all correspondence, notes,
emails, or other documents (such as briefing memos, papers or packs) prior to or
after the briefing given by Andrew Hocking to the COSC (planned to occur in
November 2021, but which may have occurred at some other time).

4. "Letters of support" referenced in paragraph 10 of the Direction.
Background
2.  On 12 December 2024, Defence sought the applicant’s written agreement to extend the
period for dealing with this request until 2 February 2024, in accordance with section
15AA [extension of time with agreement] of the FOI Act. The applicant declined this
request on the same day.
3.  On 25 January 2024, in the event Defence wished to provide partial access to the
documents within the scope of the applicant’s request, the Office of the Australian
Information Commissioner (OAIC) issued a direction to make a revised decision for
partial access under section 55G [Procedure in IC review – revocation or variation of
access refusal decision] of the FOI Act by 15 February 2024.
Scope of external review
4.  In view of the OAICs correspondence of 25 January 2024, five (5) documents matching
the scope of the applicant’s request have become the subject of an external review
process.
5.  The purpose of this correspondence is to provide the applicant with a revised decision
under section 55G the FOI Act.

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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 five (5) documents that fall within Items 2(b), 3 & 4 of the scope of
the request.
8.  The decision in relation to each document is detailed in the schedule of documents.
Exclusions
9.  Mobile telephone numbers and signatures contained in the documents that fall within
the scope of the FOI request, are excluded from this request. Defence has only
considered final versions of documents.
Revised Decision under s55G of the FOI Act
10.   I have decided to:
a.  refuse access to documents in relation to Item 1 of the applicant’s request, on
the grounds that the documents are considered exempt under sections 33
[Documents affecting national security, defence or international relations] and
47C [Public interest conditional exemptions – deliberative processes];
b.  refuse the request in relation to Item 2(a) of the applicant’s 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;
c.  partially release one (1) document in relation to Item 2(b) of the applicant’s
request, 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 47E [Public interest conditional
exemptions – certain operations of agencies] of the FOI Act;
d.  partially release three (3) documents in relation to Item 3 of the applicant’s
request, 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 [Documents affecting national
security, defence or international relations], 47C [Public interest conditional
exemptions – deliberative processes], and 47E [Public interest conditional
exemptions – certain operations of agencies] of the FOI Act;
e.  partially release one (1) document in relation to Item 4 of the applicant’s
request, 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 47E [Public interest conditional
exemptions – certain operations of agencies] of the FOI Act; and
f.  remove irrelevant material in accordance with section 22 of the FOI Act.

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Material taken into account
11.   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 Office of the Chief of the Defence Force and Mr Andrew
Hocking; and
f)  advice from Defence subject matter experts within the Afghanistan Inquiry
Response Task Force (the Task Force).
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
12.  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.
13.  Documents falling under Items 1, 2(b), 3 & 4 of the applicant’s request contain exempt
material and information that does not relate to the request.
14.  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.
15.  In addition, where a decision maker denies access to a document, section 22(1) of the
FOI Act requires that they consider releasing the document with exempt matter deleted,
if possible.
16.  Paragraph 3.98 of the Guidelines provides that:
…an agency or minister should take a common sense approach in considering
whether the number of deletions would be so many that the remaining document
would be of little or no value to the applicant.
17.  Accordingly, I have considered disclosing the relevant documents that fall under Item 1
of the applicant’s request with deletions, but have decided to refuse access as these
documents would be meaningless and of little or no value once the exempt material is
removed.
Section 24A – Requests may be refused if documents cannot be found, do not exist or
have not been received
18.  Section 24A(1) of the FOI Act states:
(1) An agency or Minister may refuse a request for access to a document if:

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(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.
19.  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…
20.  To ensure that ‘all reasonable steps’ have been taken in relation to Item 2(a) of the
applicant’s request, every reasonable avenue of locating potential documents has been
exhausted. An extensive search for documents was conducted by Task Force staff
within the Defence Records Management System (Objective) and other relevant
Group/network drives using the search terms ‘Andrew Hocking’. Searches were also
conducted by the Enterprise Committees – Chiefs of Service Committee and the Office
of the Chief of the Defence Force. By way of further information, I would like to take
this opportunity to highlight that Item 2(a) of the applicant’s request, which refers to
paragraph 7 of Directive 07/2021, directs that progress updates be provided verbally on
a monthly basis. Accordingly, no records were found matching the applicant’s scope.
21.  I am satisfied that all reasonable steps have been taken to locate the documents sought
by the applicant. I am satisfied that the documents in relation to Item 2(a) do not exist,
and refuse this part of the request under section 24A(1) of the FOI Act.
Section 33 – Documents affecting national security, defence or international Relations
22.  Section 33(a)(ii) 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:
…
(ii)  the defence of the Commonwealth…
23.  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.
…

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5.35  Damage to the defence of the Commonwealth is not necessarily confined to
monetary damage … However, in all cases, there must be evidence that the
release of the information in question will be likely to cause the damage
claimed.

24.  In regard to ‘defence of the Commonwealth’, paragraph 5.34 of the Guidelines refers to
previous Administrative Appeals Tribunal (AAT) that indicate:
a.  meeting Australia’s international obligations
b.  ensuring the proper conduct of international defence relations
c.  deterring and preventing foreign incursions into Australian territory
d.  protecting the Defence Force from hindrance or activities which would
prejudice its effectiveness.
25.  I have identified material within the documents which would, or could reasonably be
expected to, disclose the allocation of taskings both within and outside Defence as well
as the approaches taken to identify risks and strategic objectives. It is challenging to
generate military power and capabilities. Decisions and judgments involve a degree of
trade-off and uncertainty. Revealing these issues publicly could reasonably be expected
to produce adverse consequences by allowing bad actors with hostile intentions to
exploit the inner workings of the Department to the detriment of the defence of
Australia. In my view, the release of the relevant information would adversely impact
and cause damage to the defence of the Commonwealth.
26.  Accordingly, I am satisfied that the relevant information is exempt under section
33(a)(ii) of the FOI Act.
Section 47C – Public interest conditional exemptions - deliberative processes
27.  Section 47C of the FOI Act states:
(d) 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 documents, I found that they contained information relating to
internal processes of Defence, including how Defence engages with other business
areas and portfolio holders. The Office of the Chief of the Defence Force was consulted
on these documents and has supported my decision to exempt this material under
section 47C of the FOI Act.
29.  Furthermore, Section 47C(2)(b) of the FOI Act provides that deliberative matter does
not include purely factual material. Paragraph 6.73 of the Guidelines states 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.

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30.  Accordingly, I am satisfied that the relevant information 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. Therefore, I have
decided that the relevant information is conditionally exempt under section 47C of the
FOI Act.
Section 47E –Public interest conditional exemptions – certain operations of agencies
31.  Section 47E 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:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of the agency.
32.  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.
33.  In the case of ‘ABK’ and Commonwealth Ombudsman [2022] AICmr 44, the
Information Commissioner (IC) found that where the direct contact details of agency
staff are not publicly known, they should be conditionally exempt under section 47E(d).
The IC made this determination due to a 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.
34.  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 locations could, therefore, reasonably be expected to
prejudice the operations of Defence.
35.  Paragraph 6.120 of the Guidelines provide 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
this information could reasonably be expected to lead to a change in Defence’s
processes that would not lead to any efficiencies.
36.  Accordingly, I am satisfied that all staff information contained within the documents is
conditionally exempt under section 47E(d) of the FOI Act.

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Public interest considerations – sections 47C & 47E
37.  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.
38.  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.
39.  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).
40.  Paragraph 6.22 of the Guidelines specifies a non-exhaustive list of public interest
factors against disclosure. The factors that I find particularly relevant to this request are
that the release of this information could reasonably be expected to prejudice:
a.  the protection of an individual’s right to privacy;
b.  the interests of an individual or a group of individuals;
c.  an agency’s ability to obtain confidential information;
d.  an agency’s ability to obtain similar information in the future; and
e.  the management function of an agency.
41.  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 above, the release of
the names, email addresses, locations 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.
42.  Additionally, while I accept that 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 specified
documents, particularly where this information refers to Defence’s internal and external
processes which, in turn, allow Defence to undertake sensitive operational activities in
a secure and efficient manner.

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43.  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.
44.  I am satisfied, based on the above particulars, that 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
45.  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.

catherine.wallis Digitally signed by
catherine.wallis
Date: 2024.02.14 17:16:27 +11'00'

Catherine Wallis, CSM
Air Commodore
Director-General
Afghanistan Inquiry Response Task Force
Associate Secretary Group