OFFICIAL
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2024/059
Rob Stewart
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Stewart,
I refer to your request to the Department of the Prime Minister and Cabinet (the Department), under
the
Freedom of Information Act 1982 (Cth) (the FOI Act), received on 11 February 2024.
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
Scope of request
You set out your request in the following terms:
1. I require an unredacted copy of this document, in ful ;
https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2023-080-082-086.pdf
2. Specifically, I require an unredacted copy of this document - Document 3 PDR: MS21000495,
bullet point c and f.
Request decided out of time
A decision on your request was due 12 March 2024. Unfortunately the Department was unable to
complete the processing of your request by the due date. In these circumstances the Department
follows the advice in the FOI Guidelines at paragraph 3.161.
As a result, review rights for your request can be direct to the Information Commissioner, information
on how to submit a review is at the bottom of this letter.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
1
OFFICIAL
Material taken into account
In reaching my decision I referred to the following:
• the terms of your request
• the documents relevant to your request
• the FOI Act
• the Guidelines issued by the Information Commissioner1 (the FOI Guidelines)
Documents in scope of request
The Department has identified 10 documents that fall within the scope of your request.
These documents are set out in the Schedule of Documents at Attachment A.
Decision
I have decided to grant access in part, with exempt material deleted, on the basis that the documents
contain information exempt under:
• section 42 – Legal professional privilege
• section 47E(d) – Agency operations
• section 47F – Personal privacy
Reason for decision
My findings of fact and reasons for deciding that certain information is exempt is set out below.
1.
Section 42 – Legal professional privilege
Section 42(1) exempts documents that would be privileged from production in legal proceedings on
the ground of legal professional privilege.
The FOI Guidelines note that decision makers are required to turn their mind to the common law
concept of legal professional privilege,2 and that to determine whether a communication is privileged
requires a consideration of:
• whether there is a legal adviser-client relationship
• whether the communication was for the purpose of giving or receiving legal advice, or use in
connection with actual or anticipated litigation
• whether the advice given is independent
1 section 93A of the FOI Act
2 Paragraph 5.127 of the FOI Guidelines
OFFICIAL
PM&C | Freedom of Information (FOI) request
2
OFFICIAL
• whether the advice given is confidential.3
In light of these factors, and having regard to the nature of the advice, I am satisfied that part of
document 3 and 8 meets the common law requirements for establishing a claim of legal professional
privilege.
I have decided that part of documents 3 and 8 are exempt from release under section 42 of the FOI
Act.
2.
Section 47E(d) – Conditional Exemption – Operations of the Agency
Section 47E(d) of the FOI Act provides (extract):
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to …
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
Paragraphs 5.15-5.18 of the FOI Guidelines explain that the term ‘reasonably be expected’ means that
the predicted effect needs to be reasonably expected to happen, and that the effect is identified
during the decision making process.
Portions of documents 4 – 7, 9, and 10 contain internal email addresses and contact details which are
not publicly available. I consider the disclosure of these internal contact details would, or could
reasonably be expected to have, a substantial adverse effect on the proper and efficient conduct of
the operations of the Department. Disclosure of the information could reasonably be expected to lead
to significant increased volumes of unsolicited enquiries being made, which would compromise the
day to day operations of the Department, as these internal contact details are not resourced to triage
and respond to public enquiries and communications. I note there are established channels of
communication available for members of the public to contact government agencies.
I am satisfied that portions of the documents are conditionally exempt under section 47E(d) of the FOI
Act. I have considered the public interest factors at section 4.
3.
Section 47F – Conditional Exemption – Personal Privacy
Section 47F(1) of the FOI Act provides:
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).
‘Personal information’ under the FOI Act has the same meaning as set out in section 6 of the
Privacy
Act 1988 (Cth) and means information or an opinion about an identified individual, or an individual
3 Paragraph 5.129 of the FOI Guidelines
OFFICIAL
PM&C | Freedom of Information (FOI) request
3
OFFICIAL
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.
I am satisfied the documents contain personal information in the form of email addresses, direct
phone numbers, and names of individuals who are reasonably identifiable, and this amounts to
personal information for the purposes of section 47F(1) of the FOI Act.
In considering whether release of the personal information is unreasonable, I note paragraph 6.138 of
the FOI Guidelines which states “the test of ‘unreasonableness’ implies a need to balance the public
interest in disclosure of government-held information and the private interest in the privacy of
individuals.” The FOI Guidelines also note what is considered unreasonable requires a consideration of
all the circumstances. My assessment is set out below.
Having identified staff and third party personal information within the documents, I have considered
section 47F(2) of the FOI Act, which lists factors an agency must have regard to in determining
whether disclosure would be unreasonable:
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
d) any other matters that the agency considers relevant.
The portions of the documents found to be conditionally exempt include the personal information of
individuals, including their direct contact information. In this instance, and with regard to the factors
listed above, I am satisfied the information identified in the documents is not well known and is not
available from public sources. Further, I have considered that harm could, or would reasonably be
caused by release, impacting the individuals’ right to privacy.
I am satisfied that portions of the documents are conditionally exempt under section 47F(1) of the FOI
Act. I have considered the public interest factors below.
4.
Public interest
The FOI Act provides that a conditionally exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest.4 In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider the public interest factors, in doing so I have not taken into account the irrelevant factors as
set out in section 11B(4) of the FOI Act, this includes:
4 section 11A(5) of the FOI Act
OFFICIAL
PM&C | Freedom of Information (FOI) request
4
OFFICIAL
a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in 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 documents 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
In applying the public interest, I have noted the objects of the FOI Act5 and the factors favouring
access as listed in section 11B(3) of the FOI Act. Having regard to the material before me and the
circumstances of the documents found to be conditionally exempt I am satisfied of the following:
• access would promote the objects of the FOI Act6
• the subject matter within the conditionally exempt parts of the documents does not seem to
have the character of public importance, rather the matter has very limited scope and may only
be of interest to a narrow section of the public
• the subject matter within the conditionally exempt documents does not offer any insights into
public expenditure
• I am satisfied that your personal information is not contained within the conditionally exempt
documents and therefore section 11B(3)(d) is not a relevant factor to favour access
The FOI Act does not set out any public interest factors against disclosure and require that agencies
are to have regard to the FOI Guidelines in order to work out if disclosure would, on balance, be
contrary to the public interest.7 The FOI Guidelines contain a non-exhaustive list of factors that,
depending on the circumstances of the documents found to be conditionally exempt, may weigh
against disclosure.
In my view, the factors against disclosure of the conditionally exempt material is that disclosure of
personal information exempt under section 47F could reasonably be expected to prejudice
individuals’ rights to personal privacy. I consider that this factor weighs heavily in favour of it being in
the public interest not to release the material.
I also consider that disclosure of internal contact details exempt under section 47E(d) could
reasonably be expected to prejudice the Department’s effective operations. There are established
channels of communication for members of the public to contact that Department, and I consider it is
not in the public interest to disclose these operational contact details.
5 section 3 of the FOI Act
6 section 11B(3)(a) of the FOI Act
7 section 11B(5) of the FOI Act
OFFICIAL
PM&C | Freedom of Information (FOI) request
5
OFFICIAL
After careful consideration of all relevant factors, I have decided that, on balance, the factors against
disclosure outweigh those favouring disclosure. Accordingly, I am of the view that disclosure of the
requested document would be contrary to the public interest.
Review rights
If you disagree with my decision you may apply for review with the Information Commissioner.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days after the date this request was deemed to be refused, 12 March 2024.
More information about Information Commissioner review is availa
ble here.8
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response,
you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. More information about complaints is available
here.9
If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx.
Yours sincerely
David Belgrove
Assistant Secretary
Parliamentary and Government Branch
Department of the Prime Minister and Cabinet
30 April 2024
8 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-reviews/information-commissioner-review
9 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-complaints/make-an-foi-complaint
OFFICIAL
PM&C | Freedom of Information (FOI) request
6
