64798 JENNY FOI Decision Letter.pdf

LEX 64798

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reasons for decision of Jesse (Position Number 62373496),
A/g Senior Information Access Officer, Information Access Unit,
Ministerial, International & Stakeholder Relations Branch, Department of Veterans’ Affairs

Applicant:

Jenny

Decision date:

23 April 2024

FOI reference number:
LEX 64798

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Jenny,
Freedom of Information Request: LEX 64798
Decision

1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified one (1) document bundle relevant to your request.

2.
I have made a decision to refuse access to the document bundle.

3.
The document that I have chosen to refuse access to is set out in Schedule 1, together with
applicable exemption provisions.

Authority to make decision

4.
I, Jesse (Position Number 62373496), A/g Senior Information Access Officer, Information
Access Unit, Ministerial, International & Stakeholder Relations Branch, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department in accordance with section 23(1) of the
Freedom of Information Act 1982 (Cth) (FOI Act).

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Summary

5.
On 27 January 2024, you made a request for access to documents in the possession of the
Department. Your request sought access to:

‘…A copy of a submission made by DVA to the OAIC regarding delays to responding
to the more than 1,657 enquiries about the MATES privacy breaches, seeking access
to copies of disclosures made by DVA to UniSA, stated the delays were because of
internal communications over how to extract and “best present” that information
had to take place first.

It stated that the Department had to seek the approval of both the Secretary and
the Minister first as to how to present this information, contributing to these delays.

As these discussions and approvals have now finalised I seek copy of these records
of communications and approvals as to how the data of these disclosures of
personal information from DVA to UniSA would be extracted and “best present”ed.

Given the reference to internal communications by the Department about this
matter it is likely these records are held in the Department’s MS Teams, email,
TRIM, PDMS, and group drives in electronic form.

As the Minister and Secretary were mentioned as having to approve how this would
happen and in what form it is likely DVA’s Ministerial and Parliamentary Support
(MaPS) section, the Information Law section, and Research area are were these
records can be found within the Department…’

6.
On 1 February 2024, the Department acknowledged your request via email.

7.
As no extensions of time have been applied to process your request, a decision on your
request was due by 26 February 2024.

8.
In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request. I would like to apologise for the delay in issuing this decision to you and any
inconvenience it may have caused.

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9.
As a decision on your request was not made within the timeframe as prescribed in section
15(5)(b) of the FOI Act, Regulation 7(2) of the Freedom of Information (Charges) Regulations
2019 prescribed that no charge is payable.

Material taken into account

10.  In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
refuse access to the document follows.

11.  I have taken the following material into account in making my decision:

  the terms of your request on 27 January 2024;

  the types of information and documents that are in the Department’s possession;

  the content of the document that fall within the scope of your request;

  Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:

-  Section 11B  Public interest exemption – factors
-  Section 15  Request for Access
-  Section 47C   Public interest conditional exemptions--deliberative processes

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines);

12.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

13.  I have decided to refuse access to the document within the scope of your request, subject to
the following exemption in accordance with the FOI Act:

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Public interest conditional exemptions--deliberative processes (section 47C)

14.  Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
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 of the
Government, an agency or minister.

15.  Document bundle one (1) reveal the email communications and draft documentation
between the Engagements, Communications & Ministerial Division, Stakeholder Engagement
and Communications Division, Chief Financial Officer Division, and Program Delivery Division
as well as the Minister for Veterans’ Affairs and Defence Personnel for the purpose of
making a final determination on the subject matter and taking future action. I find that
disclosure of the information in Document bundle one (1) would disclose ‘deliberative
matter’ as described under section 47C of the FOI Act in the nature of opinion, advice and
recommendations obtained in the course of a deliberative process of the Department, in
particular for providing and sharing professional advice internally, relating to the subject
matter of a response from the Department in relation to the MATES program and privacy.

16.  Accordingly, I have decided that the document which is listed as exempt in accordance with
this provision in Schedule 1, meets the criteria for conditional exemption. Where a
document is assessed as conditionally exempt, access must be given subject to the public
interest test in accordance with section 11A(5).

Application of the public interest test – section 47C

17.  Section 11A(5) of the FOI Act provides that an agency 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 would, on balance, be contrary to the public interest.

18.  In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factor which favours disclosure:

(a)
disclosure would promote the objects of the FOI Act by providing access to
government held information.

19.  I also considered the following factors which do not favour disclosure:

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(a)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with its functions;

(b)
disclosure 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 an agency, a
Minister or the Government of the Commonwealth;

(c)
prejudice an agency’s ability to obtain confidential information;

(d)
prejudice an agency’s ability to share opinion, advice and recommendations within
the Department;

(e)
inhibit frankness and candour in the provision of advice, recommendations,
opinions and consultation between departmental officers in relation to deliberative
processes concerning the department's functions. This could reasonably be
expected to have an adverse impact on the decision-making and deliberative
processes of within the Department business sections; and

(f)
disclose a deliberation.

20.  I have placed greater weight on these factors. I consider that disruption of established
channels for communication and delivery of services would be likely to follow disclosure of
contact information about individual staff members. I consider that impairment of the
Department’s ability to efficiently deliver services to veterans and their families could
reasonably be expected as a result.

21.  I also consider that the disclosure of deliberative material contained in the document would
adversely affect departmental staff and third parties, and their ability to freely provide
advice and recommendations on departmental process and procedure.

22.  On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.

23.  I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.

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Your rights of review

24.  If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (OAIC). In
accordance with section 54E(b) of the FOI Act, internal review is not available as the
Department did not finalise your FOI request within the prescribed statutory timeframe.

OAIC review

25.  Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the following ways:

Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx

26.  More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/

Contact us

27.  If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

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Yours sincerely,

Jesse (Position Number 62373496)
A/g Senior Information Access Officer
Information Access Unit
Ministerial, International & Stakeholder Relations Branch
Department of Veterans’ Affairs

23 April 2024
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LEX 64798
Schedule 1

Schedule of documents

Applicant:

Jenny

Decision date:

23 April 2024

FOI reference number:
LEX 64798

Document
Date of
Document description
Page
Decision
Exemption
reference  document
number
provision
1
Various   Release Pack
1-115
Full Refusal
s 47C

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LEX 64798
Schedule 2

Schedule of relevant provisions in the FOI Act
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Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)
requiring agencies to publish the information; and

(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.

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Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:

(a)
a document of an agency, other than an exempt document; or

(b)
an official document of a Minister, other than an exempt document.

(2)
Subject to this Act, a person’s right of access is not affected by:

(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.

11A    Access to documents on request
Scope

(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:

(i)
a document of the agency; or

(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.

(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).

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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
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.
Note 1:  Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:  A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:  Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:

(a)
a conditionally exempt document; and

(b)
an exempt document:

(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).

11B
Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include 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;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(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.
Guidelines
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(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.

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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A)    The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.

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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.

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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and

(c)
give to the applicant appropriate information concerning:
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(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).

47C
Public interest conditional exemptions-deliberative processes
General rule
(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; or

(d)
the Government of Norfolk Island.
Exceptions

(2)
Deliberative matter does not include either of the following:

(a)
operational information (see section 8A);

(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).

(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not,
including reports expressing the opinions of such experts on scientific or technical
matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).

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