9 March 2024
CR
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/01/00548
File Number:
FA24/01/00548
Dear CR
Freedom of Information (FOI) request – Access Decision
On 12 January 2024, the Department of Home Affairs (the Department) received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
I request access to the following documents under the Freedom of Information Act 1982:
1. Al correspondence between the department's FOI team and the FOI applicant of request 'FA
23/10/01506'.
2. Al internal correspondence sent to/from the department's FOI team regarding the above-
mentioned request.
3. Al correspondence between the department's FOI team and any external parties regarding
the above-mentioned request.
4. Al correspondence between the FOI applicant and any external parties regarding the above-
mentioned request.
Please include any email attachments as they form part of the scope of this request.
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your request
Level 3/299 Adelaide Street • www.homeaffairs.gov.au
• the documents relevant to the request
• the FOI Act
• Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
• advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
• advice from The Attorney-General’s Department
• advice from The Office of the Secretary
4
Documents in scope of request
The Department has identified 56 documents, including four (4) duplicates, as falling within the
scope of your request. These documents were in the possession of the Department on
12 January 2024 when your request was received.
Attachment A is a schedule which describes the relevant documents and sets out my decision
in relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is as follows:
• Release 46 documents in part with deletions
• Exempt six (6) documents in full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
Where the schedule of documents indicates an exemption claim has been applied to a document
or part of document, my findings of fact and reasons for deciding that the exemption provision
applies to that information are set out below.
6.1 Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose information
that would reasonably be regarded as irrelevant to the request, it is possible for the Department
to prepare an edited copy of the document, modified by deletions, ensuring that the edited copy
would not disclose any information that would reasonably be regarded as irrelevant to the
request.
On 16 January 2024, the Department advised you that its policy is to exclude the personal details
of officers not in the Senior Executive Service (SES), as well as the mobile and work telephone
numbers of SES staff, contained in documents that fall within scope of an FOI request.
I have decided that parts of documents marked ‘s22(1)(a)(i )’ would disclose information that
could reasonably be regarded as irrelevant to your request. I have prepared an edited copy of
the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
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6.2 Section 22 of the FOI Act – deletion of exempt material
I have decided to prepare an edited copy of the documents. The grounds upon which the edited
copies of these documents have been prepared are set out in
Attachment A of the
Schedule of Documents.
6.3 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the functions
of the Department. ‘Deliberative matter’ includes opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the deliberative
processes of an agency.
Deliberative processes’ generally involves
“the process of weighing up or evaluating competing
arguments or considerations”1 and the
‘thinking processes –
the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’2
Parts of the documents released to you contain advice, opinions and recommendations
prepared or recorded in the course of, or for the purposes of, the deliberative processes
involved in the functions of the Department, regarding decision-making entailing a response to
the FOI applicant.
I am satisfied that this deliberative matter relates to a process that was undertaken within the
Department to make a decision regarding a request for a list of internal documents that
included the term “
ShadowDragon” for the period 1 January 2023 to 26 October 2023. Part of
the process included consultations/discussions with responsible business areas, marking up of
documents, review of redactions, the application and explanation of exemption conditions and
the like.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I
have had regard to the fact that “purely 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.3 A factual
summary prepared to aid a complex issue may be classed as purely factual material, but may
also be of a character as to disclose a process of section involving opinion, advice or
recommendation. As such, a conclusion which involves a deliberative process may well prevent
material from being purely factual.4
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that the information redacted and marked “s47C(1)" is conditionally exempt
under section 47C of the FOI Act. Access to a conditionally exempt document must generally
be given unless it would be contrary to the public interest to do so. I have turned my mind to
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
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whether disclosure of the information would be contrary to the public interest, and have
included my reasoning in that regard at paragraph 6.6 below.
6.4 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse ef ect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of the parts of documents marked ‘
s47E(d)’ would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct
of the operations of the Department.
Managing the security and integrity of Australia's borders is integral to the operations of the
Department. Any prejudice to the effectiveness of the operational methods and procedures used
in undertaking that role would result in a substantial adverse effect on the operations of the
Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its law
enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
Some information marked 's47E(d)' consists of operational email addresses used by this
Department. These email addresses are not otherwise publicly available, and disclosure of this
information could reasonably be expected to result in potential vexatious communication and
public inquiries which these operational areas are not resourced to manage. The Department
has established channels of communication for members of the public into the Department, and
I consider there is no public interest in disclosing these operational contact details. Given the
operational focus of those business areas, such a diversion of the resources of that business
area could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of this Department and its partner agencies.
I have decided that parts of the documents are conditionally exempt under section 47E(d) of the
FOI Act. Access to a conditionally exempt document must generally be given unless it would be
contrary to the public interest to do so. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.6 below.
6.5 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not (see section 4 of the FOI
Act and section 6 of the
Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role or
employment circumstance.
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The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the fol owing four factors set out in s.47F(2) of the
FOI Act:
•
the extent to which the information is well known;
•
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;
•
the availability of the information from publicly available resources;
•
any other matters that I consider relevant.
I have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individuals concerned are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
I do not consider that the information relating specifically to third parties would be relevant to the
broader scope of your request, as you are seeking access to correspondence regarding the
Department’s FOI team, external parties and the FOI applicant in connection with Freedom of
Information Request - FA 23/10/01506, rather than information which whol y relates to other
individuals.
I am satisfied that the disclosure of the information within the documents would involve an
unreasonable disclosure of personal information about a number of individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless it
would be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.6 below.
6.6 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(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
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(c) promote effective oversight of public expenditure
(d) allow a person to access his or her own personal information.
Having regard to the above I am satisfied that:
•
Access to the documents would promote the objects of the FOI Act.
•
The subject matter of the documents does not seem to have a general characteristic
of public importance. The matter has a limited scope and, in my view, would be of
interest to a very narrow section of the public.
•
No insights into public expenditure wil be provided through examination of the
documents.
•
You do not require access to the documents in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the documents:
• Disclosure of the operational email addresses which are conditionally exempt under
section 47E(d) of the FOI Act would have a substantial adverse effect on the ability of
the relevant operational areas to conduct their business as usual. The Department has
established avenues in place for members of the public to contact when they have
queries, complaints or comments. I consider that there is a strong public interest in
ensuring public feedback is filtered through these available channels so that operational
areas within the Department are able to carry out their functions in an effective matter.
I consider that this would be contrary to the public interest and that this factor weighs
strongly against disclosure of the exempt information.
• I consider that the public interest in protecting the internal Departmental processes of
making FOI decisions, has, on balance, more weight, than the public interest that might
exist in disclosing the deliberative matter/process.
• Disclosure of the personal information which is conditionally exempt under section 47F
of the FOI Act could reasonably be expected to prejudice the protection of those
individuals' right to privacy.
• While you may be aware of the personal information relating to some of these third
parties, their information is not well known to the public generally. These documents
are not available from publicly accessible sources. I have had regard to the fact that
disclosure of information under the FOI Act must be considered to be a disclosure to
the world at large and not just to you as the applicant.
• The Department is committed to complying with its obligations under the
Privacy Act
1988, which sets out standards and obligations that regulate how the Department must
handle and manage personal information. It is firmly in the public interest that the
Department uphold the rights of individuals to their own privacy and meets its
obligations under the Privacy Act. I consider that non-compliance with the Department’s
statutory obligations concerning the protection of personal information would be
contrary to the public interest and that this factor weighs strongly against disclosure.
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I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which
the request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
8
Your Review Rights
Information Commissioner Review
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for an
Information Commissioner review of this decision. You must apply in writing within 60 days of
this notice. For further information about review rights and how to submit a request for a review
to the OAIC, please see https://www.oaic.gov.au/freedom-of-information/your-freedom-of-
information-rights/freedom-of-information-reviews/information-commissioner-review.
9
Making a complaint
You may complain to the Information Commissioner about action taken by the Department in
relation to your request.
Your enquiries to the Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Information Commissioner. The
request should be in writing and should set out the grounds on which it is considered that the
action taken in relation to the request should be investigated and identify the Department of Home
Affairs as the relevant agency.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
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Yours sincerely,
Petrushka Mazur
A/g Assistant Secretary
Privacy, FOI and Records Management Branch
Legal Group
Department of Home Affairs
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