30 September 2025
Cynthia T
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 1598 (LEX 1542)
Dear Cynthia T
Freedom of information internal review request decision notice
1.
I am writing about your Freedom of Information (
FOI) internal review request under the Freedom
of Information Act 1982 (
FOI Act) made on 30 August 2025 for access to documents held by the
Australian Public Service Commission (
Commission).
2.
I am authorised to make this decision under subsection 23(1) of the FOI Act, and have reviewed
your application in accordance with section 54C of the FOI Act.
3.
My role as authorised internal review decision maker is to make a new decision on your FOI
request, impartially and independently from the primary decision maker. Internal review is a merit
review process where I can exercise all the powers available to the primary decision maker.
Background of primary FOI request and decision – LEX 1542
4.
Your original FOI request was made on 20 July 2025 seeking access to documents in the
following terms:
‘
Under the Freedom of Information Act 1982 (Cth), I request access to any and all
correspondence, sent or received by Dr Gordon de Brouwer from 1 July 2023 to the date of this
request, that relates to (in the broadest sense) PID-2020-400006, an investigation handled by
Kate McMullan of the APSC.
Correspondence relating to PID-2020-400006 could include, but is not limited to, things like
memos from the Ombudsman’s office arising from the Ombudsman’s investigation, memos
about FOI requests, internal memos about the disclosure investigation (including the
inadequacy of the investigation), memos about referral of the underlying issues to the NACC
(the referral has been flagged in the AFR: https://www.afr.com/politics/federal/corruption-boss-
warns-on-lawyers-consultants-and-the-election-20240805-p5jzlg ) etc.’
5.
SM identified two (13) documents within the scope of your request.
6.
On 19 August 2025,
SM made a decision to grant you partial access to Documents 1 to 5 and
refuse you access to Documents 6 to 13, on the basis the documents are exempt in part or full.
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7.
For completeness, I note I was not involved in the making of SM’s decision and have not consulted
with them about the history of the matter.
Internal review application
8.
On 20 August 2025, you made an FOI internal review application, as fol ows:
“
This is an application for a total internal review of your decision.
Please pass this request to the person who conducts Freedom of Information reviews.”
9.
In making this request, you specifically highlighted some reasons you wished for the authorised
officer conducting the internal review to consider, being:
“
Document 4
You have applied redactions to Document 4, which is a decision notice issued by Clare McLean on 29
March 2023.
There is no justification for applying redaction pursuant to section 47F of the FOI Act because that
document is published online: https://archive.org/details/pid-2020-400006-2023-04-28-lex-524-helen-
wilson-clare-mc-lean-apsc-freedom-of-in
Document 5
You have applied redactions to Document 5, which is a decision notice issued by Marco Spaccavento on
19 May 2022.
There is no justification for applying redaction pursuant to section 47F of the FOI Act because that
document is published online: https://archive.org/details/pid-2020-400006-2022-05-19-shc-22-27698-
marco-spaccavento-apsc-freedom-of-inform
Searches conducted
I noticed that you provided correspondence from one V Oranienbaum (see Document 3 -
https://www.righttoknow.org.au/request/11097/response/42895/attach/18/Document%203%20Email%20t
o%20the%20APS%20Commissioner.pdf?cookie_passthrough=1 ).
I have seen other correspondence that was sent to Dr de Brouwer and fal s within the scope of my request.
I believe that you have failed to conduct adequate searches of the APSC’s records and would like you to
again search for documents relevant to my request.
Hearne v Street
You claim, in your reasons for decision, that Hearne v Street applies to submissions made to the
Information Commissioner by an access applicant.
Hearne v Street is an elaboration by the High Court of Australia of the Harman principle.
Hearne v Street does not stand for the proposition that submissions made to the Information
Commissioner, which are, in the main, non-confidential (see Direction as to certain procedures to be
followed by applicants in Information Commissioner reviews, [2.30], and Direction as to certain procedures
to be followed by agencies and ministers in Information Commissioner reviews, [3.26] – [3.27]), “remain
confidential to the parties and an implied undertaking of confidentiality applies to the submissions” (as you
have noted in your decision at [23]).
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Your statement is obviously incorrect because, on this very website, submissions to the OAIC are, on a
regular basis, published for everybody in the world to read. Here is just one example:
https://www.righttoknow.org.au/request/report_on_the_operations_of_apsc_2#outgoing-23579
Claims about application of legal professional privilege
Considering that you have made incorrect statements about the applicability of Hearne v Street to
submissions made to the OAIC, I have doubts about your technical aptitude when it comes to the law.
That doubt extends to your claims about the applicability of section 42 to documents that you claim are
covered by section 42. As such, I would like your claims reconsidered as part of the internal review.
Conclusion
Please ensure that the reviewing officer conducts a total review of your decision, on all grounds, explicitly
noted or otherwise.”
10. I have addressed these submissions in my reasons for decision.
Decision on your internal review request
11. I have considered your request and contentions, together with other relevant information including
the nature of the information, the relevant provisions of the FOI Act and the guidelines issued by
the Australian Information Commissioner under the FOI Act.
12. After considering your request under section 54 of the FOI Act, I:
• affirm SM’s primary decision to grant you partial access to Documents 1 to 3 and refuse
you access to Documents 6 to 13, on the basis the documents are exempt in part or full;
• set aside SM’s primary decision to grant you partial access to Documents 4 to 5 as
documents publicly available cannot be the subject of the FOI Act.
13. My reasons for this decision are set out in
Attachment A.
Review rights
14. You are entitled to seek a review of my decision. Your review rights are set out in
Attachment B
to this notice.
Contact
15. If you have any questions, please email the Commission’s FOI Officer at xxx@xxxx.xxx.xx.
Yours sincerely,
JO
Authorised FOI internal review decision maker
Australian Public Service Commission
30 September 2025
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ATTACHMENT A
Reasons for decision 1.
In making my decision I have had regard to:
• the terms of your request and submissions;
• the content of the document;
• the FOI Act; and
• the Australian Information Commissioner’s Direction as to certain procedures to be followed
by applicants in Information Commissioner reviews;
• the FOI Guidelines issued by the Australian Information Commissioner (
FOI Guidelines).
2. In making the decision to exempt the documents in ful and in part, I have applied the following
exemptions:
• section 42 – legal professional privilege;
• section 47C – deliberative processes;
• section 47E(d) – certain operations of agencies;
• section 47F – personal privacy.
Exemptions
Section 42 – Legal Professional Privilege
3. Section 42(1) of the FOI Act provides that a document is an exempt document if it is of such a
nature that it would be privileged from production in legal proceedings on the ground of legal
professional privilege.
4. In determining whether or not the material contained in Documents 7 to 13 could be privileged
from production in legal proceedings I have considered:
• Whether there is a legal adviser-client relationship;
• Whether the communication was for the dominant purpose of giving or receiving legal advice
or use in connection with actual or anticipated litigation;
• Whether the advice given is independent; and
• Whether the advice given is confidential.
5. The Commission has a General Counsel Branch staffed by lawyers admitted to practice and who
hold practising certificates. The lawyers in this Branch provide independent advice and support
function, acting on instructions from other line areas within the Commission. When providing legal
advice, Branch staff provide advice to Commission employees and office holders as clients, they
are not acting as decision makers.
6. Document 7 (and its attachments, namely Documents 8 to 13) comprises a brief to the APS
Commissioner, marked “Confidential” and “Legal Professional Privilege”. The brief contains
confidential communications between the Commissioner and the Commission’s legal advisers
acting in their professional capacity, for the dominant purpose of giving or receiving legal advice. I
am satisfied that the brief was provided by the Commission’s General Counsel Branch to the APS
Commissioner in an independent legal adviser-client relationship, and in confidence. I am satisfied
that Documents 7 to 13 meet the threshold for legal professional privilege to apply, and are not
merely administrative in nature.
7. There is no evidence that legal professional privilege has been waived, or that the Commission
wishes to disclose the privileged information.
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8.
Further, in accordance with the recent decision of
Shafran and Secretary, Department of
Veterans' Affairs (Freedom of information) [2025] ARTA 799, specifically paragraph 33, I am
satisfied that the privilege attaches to the whole of the communication, and therefore release
of the documents in part is not appropriate.
9.
I am therefore satisfied that the relevant information in
Documents 7 to 13 are exempt under
section 42(1) of the FOI Act.
Section 47C – Deliberative processes
10. Section 47C of the FOI Act conditionally exempts documents containing deliberative matter.
Deliberative matter generally consists of matter in the nature of, or relating to:
• an opinion, advice or recommendation that has been obtained, prepared or recorded; or
• a 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, Minister or the
Commonwealth Government.
11. Deliberative matter does not include operational information or purely factual material,
particular types of reports, or records or formal statement of reasons for a final decision given
in the exercise of a power or of an adjudicative function.
12. A deliberative process includes the recording or exchange of opinions, advice,
recommendations, a collection of facts (including the pattern of facts or opinions considered)
and interim decisions or deliberations.
13. In
Re Robert Wil iam Booker and Department of Social Security [1990] AATA 218, Deputy
President Forgie, in considering the meaning of ‘consultation’ determined that:
“in order for there to be consultation, there must be something of a two way exchange between
at least two parties.”
14. Although I have decided that documents 7 to 13 are exempt from disclosure on the basis of
legal professional privilege, in light of the above, I am also satisfied that Documents 7 to 13
relate to the recording or exchange of advice, consultation, and recommendations. I am further
satisfied that this deliberative matter was obtained in the course of a deliberative process as
described above in paragraph 12, involved in the functions exercised by an Australian
Government agency, being the Australian Public Service Commission.
15. For this reason, I am of the view that Documents 7 to 13 would also be conditional y exempt
under section 47C of the FOI Act.
Section 47E(d) – certain operations of agencies
16. Section 47E(d) of the FOI Act provides:
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 an
agency.
17. In determining whether disclosure “could reasonably be expected to” have a substantial
adverse effect, “could” is a less stringent standard than “would” and requires analysis of the
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reasonable expectation, rather than the certainty, of an event, effect or damage occurring.1
18. A “substantial adverse effect” connotes an “adverse ef ect which is sufficiently serious or
significant to cause concern to a properly informed reasonable person”.2 “Substantial” in this
context has been interpreted as including “loss or damage that is, in the circumstances, real or
of substance and not insubstantial and nominal”.3
19. Document 6 includes submissions made by an applicant to the Of ice of the Australian
Information Commissioner (OAIC) for an Information Commissioner (IC) review. To enable
OAIC, which has a critical oversight function, to properly process IC reviews, it is essential for a
party’s submissions to remain confidential to not adversely affect future IC reviews.
20. I also consider disclosure of the content of document 6 would likely adversely affect the ability
of the Commission to properly and efficiently fulfil its functions during IC reviews. During such
reviews, the Commission’s functions include:
• Handling of IC reviews in cooperation with the OAIC;
• Maintaining open, frank, and full participation in review processes by both applicants and
agencies;
• Protecting sensitive handling of personnel or APS conduct matters which may be the
subject of an FOI decision under review.
21. This view is supported by paragraph 6.114 of the FOI Guidelines, which provides:
“
The conditional exemption may also apply to a document that relates to a complaint made
to an investigative body. Disclosure of this type of information could reasonably affect the
wil ingness of people to make complaints to the investigative body, which would have a
substantial adverse effect on the proper and efficient conduct of the investigative body’s
operations. Further, disclosure of information provided in confidence by parties to a
complaint or investigation may reduce the wil ingness of parties to provide information
relevant to a particular complaint and may reduce their wil ingness to participate fully and
frankly with the investigative process. In such cases the investigative body’s ability to obtain
all information would be undermined and this may have a substantial adverse effect on the
proper and efficient conduct of the investigative body’s operations.”
22. Disclosure of Document 6 would, or could reasonably have a substantial adverse effect on
OAIC’s and the Commission’s operations by:
• deterring future applicants from being candid in their submissions, in fear that their
submissions could be released under FOI in the future;
• causing applicants to withhold relevant information during the IC review or frame
information defensively rather than cooperatively;
• causing potential delays during the IC review process, prejudicing the Commission’s
distribution of government resources;
• hindering OAIC’s ability to process IC reviews effectively and efficiently.
23. It is relevant to my decision that the OAIC has not yet deliberated on the matter to which the
submissions relate, so the submissions remain confidential to the parties and an implied
undertaking of confidentiality applies to the submissions: see
Hearne v Street (2008) 235 CLR
125 (
Harman undertaking).
24. For the reasons above, I have decided Document 6 is a conditionally exempt document under
paragraph 47E(d) of the FOI Act, as it would, or could reasonably be expected to have a
substantive adverse effect on the proper and efficient conduct of the operations of OAIC and
the Commission and the confidentiality of the submissions made by a party.
_____
1 Paragraph 6.15 of the FOI Guidelines.
2
Thies and Department of Aviation [1986] AATA 141 at [24].
3 Paragraph 6.18 of the FOI Guidelines.
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Section 47F – personal privacy
25. Subsection 47F(1) of the FOI Act provides:
(1) 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).
26. For the purposes of the FOI Act, “personal information” is defined as information or an opinion
about an identified individual, or an individual who is reasonably identifiable:4
• whether the information or opinion is true or not; and
• whether the information or opinion is recorded in a material form or not.
27. I consider that Documents 1 to 3 contain parts that are conditionally exempt; specifically:
• the names and contact information of non-Senior Executive Staff within the Australian
Public Service (
APS); and
• the names and contact information of other FOI applicants.
28. Subsection 47F(2) of the FOI Act provides:
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(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 or Minister considers relevant.
29. I have had regard to the matters I must consider under subsection 47F(2) of the FOI Act in
determining whether the disclosure of the personal information would involve the unreasonable
disclosure of personal information.
30. Under paragraph 6.137 of the FOI Guidelines, key factors in determining whether disclosure is
unreasonable include:
• the author of the document is identifiable;
• the document contains third party personal information;
• release of the document would cause stress to the third party;
• no public purpose would be achieved through release.
31. Under paragraph 6.138 of the FOI Guidelines, other factors include:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s or minister’s collection and use of the information;
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act;
• any submissions an FOI applicant chooses to make in support of their request as to their
reasons for seeking access and their intended or likely use or dissemination of the
information; and
_____
4 Section 6 of the
Privacy Act 1988.
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• whether disclosure of the information might advance the public interest in government
transparency and integrity.
32. In considering what is unreasonable, the Administrative Appeals Tribunal in
Re Chandra and
Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51] stated:
“…whether a disclosure is ‘unreasonable’ requires… a consideration of al the
circumstances, including the nature of the information that would be disclosed, the
circumstances in which the information was obtained, the likelihood of the information being
information that the person concerned would not wish to have disclosed without consent,
and whether the information has any current relevance… and to weigh that interest in the
balance against the public interest in protecting the personal privacy of a third party…”
33. Other factors to be considered include the nature, age and current relevance of the
information, any opposition to disclosure held by the person that the personal information
relates to, and the circumstances of an agency’s col ection and use of the information (‘
FG’
and
National Archives of Australia [2015] AICmr 26 at [47]).
34. I note that in
Warren; Chief Executive Officer, Services Australia and (Freedom of information)
[2020] AATA 4557 (9 November 2020), Deputy President S A Forgie found (at [130]):
“An individual may include his or her direct telephone number in correspondence directed to
other persons. Unless published on an agency’s website or made public in some other way,
such as on a pamphlet or report available to the public, I consider that disclosure of an
individual’s telephone number in his or her place of employment is unreasonable. Its
disclosure will provide an avenue by which others may choose to express their displeasure
with the individual or with that for which he or she is responsible but its disclosure does not
make any positive contribution to increasing public participation in Government processes or
in increasing scrutiny, discussion, comment and review of the Government’s activities.”
35. In relation to the question of whether disclosure would be unreasonable, in
‘BA’ and Merit
Protection Commissioner [2014] AICmr 9, former Australian Information Commissioner,
Professor John McMil an cited Heerey J in
Colakovski v Australian Telecommunications
Corporation who considered that:
“… if the information disclosed were of no demonstrable relevance to the affairs of
government and was likely to do no more than excite or satisfy the curiosity of people
about the personal affairs of the person whose personal affairs were disclosed ...
disclosure would be unreasonable.”
36. Professor McMil an further explained that:
“…the object of the FOI Act to promote transparency in government processes and
activities needs to be balanced with the purpose of s 47F to protect personal privacy,
although care is needed to ensure that an FOI applicant is not expected to explain
their reason for access contrary to s 11(2).”5
37. Relevant to personal information of certain public servants, under the FOI Act there is no
presumption that agencies and ministers should start from the position that the inclusion of the
full names of staff in documents increases transparency and the objects of the FOI Act.6
38. I have identified the fol owing factors that, in my view, do not support the release of this
personal information under section 47F of the FOI Act:
• the individuals’ personal information, in particular their name, wil identify them;
• the personal information is unique and relates specifically to the individuals, and is
generally not well known or publicly available;
• the FOI Act does not control or restrict the subsequent use or dissemination of information
_____
5 ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 [64].
6
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [83].
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released under the FOI Act;
• the disclosure of this information wil not advance scrutiny of any decisions falling within
scope of your FOI request;
• the disclosure of this information could expose concerned individuals to unsolicited and
inappropriate approaches by external parties;
• release of the individuals’ personal information may cause stress for them or other
detriment; and
• disclosure would prejudice the individuals’ right to privacy.
39. I have therefore decided to the extent that Documents 1 to 3 include the names and contact
information of non-Senior Executive Staff within the APS and FOI applicants, those parts are
conditionally exempt from disclosure under section 47F of the FOI Act because it would
involve the unreasonable disclosure of their personal information.
Sections 11A and 11B – public interest factors
40. Subsection 11A(5) of the FOI Act provides:
(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.
41. I have considered the public interest exemption factors in favour of disclosure at
subsection 11B(3) of the FOI Act, including the extent to which access to the documents would
promote the objects of the FOI Act and inform debate on a matter of public importance.
42. I have identified the following factors as weighing against disclosure of certain information or
documents:
Section 47F conditional exemption:
• disclosure of individuals’ personal information wil not advance any scrutiny of any
decisions falling within the scope of your FOI request;
• disclosure would prejudice individuals’ right to privacy; and
• disclosure could lead to unwarranted approaches to the individual which would adversely
impact their ability to perform their role and functions, noting that general enquiry phone
numbers and email addresses are available;
Section 47E(d) conditional exemption:
• disclosure could prejudice candid IC review processes;
• disclosure could cause inefficiency for OAIC and the Commission in resolving FOI disputes;
• disclosure would be contrary to the implied obligation of confidence with respect to
submissions that have not been relied on in proceedings; and
• disclosure could deter future applicants from requesting an IC review, due to fears of their
submissions being released.
Section 47C conditional exemption
• disclosure of conditionally exempt information under 47C could reasonably be expected to
prejudice the ability of the Commission to manage future deliberations;
• disclosure could prejudice the relationship between the Commission and its legal advisors;
and
• disclosure of deliberative matter could unreasonably disclose deliberations, consultations,
and the exchange of advice and recommendations undertaken by a Government agency
in the course of exercising its functions.
43. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining whether
access would be in the public interest. I have not considered these factors.
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44. On balance, I find disclosure of parts of Documents 1 to 3 would be contrary to the public
interest. Further, I find disclosure of Documents 6 to 13, in part or full, would be contrary to the
public interest. To the extent that the material contained in the documents that are
conditionally exempt under section 47F, paragraph 47E(d) and section 47C, I have decided
that those parts are exempt from disclosure in the public interest.
Your submissions
45. In your submissions, you take objection to the interpretation and application of:
•
Section 47F (personal privacy) being applied to documents 4 and 5
•
Section 42 (legal professional privilege) being applied to document 7
•
Hearne v Street being applied to document 6.
46. I address these broadly below.
Documents 4 and 5
47. Documents 4 and 5 were partially released to you with personal information conditional y exempt
pursuant to section 47F (personal privacy).
48. As you have identified, documents 4 and 5 are available publicly online via the Internet Archive. I
agree that these documents are publicly accessible. Therefore, these documents are not subject
to the FOI Act as they are readily available online. I do note that locating documents 4 and 5 on the
Internet Archive is not achieved without some degree of ef ort expended.
49. Accordingly, I set aside SM’s primary decision maker’s decision to partial release documents 4 and
5, and decide that these documents are not the subject of the FOI Act.
Document 6
50. I af irm the primary decision maker’s reasons for decision.
51. I also agree with the inclusion of
Hearne v Street as being applicable in the circumstances, and
explain my reasons by reference to your concerns, which you say:
“
Hearne v Street does not stand for the proposition that submissions made to the Information
Commissioner, which are, in the main, non-confidential (see Direction as to certain procedures
to be followed by applicants in Information Commissioner reviews, [2.30], and Direction as to
certain procedures to be fol owed by agencies and ministers in Information Commissioner
reviews, [3.26] – [3.27]), “remain confidential to the parties and an implied undertaking of
confidentiality applies to the submissions” (as you have noted in your decision at [23]).
Your statement is obviously incorrect because, on this very website, submissions to the OAIC
are, on a regular basis, published for everybody in the world to read. Here is just one example:
https://www.righttoknow.org.au/request/report_on_the_operations_of_apsc_2#outgoing-
23579”
52. The Australian Information Commissioner’s
Direction as to certain procedures to be followed by
applicants in Information Commissioner Reviews sets out the steps required to be followed by
an applicant in an IC review (
Applicant Procedures). These procedures are given legal effect
by section 55(2)(e)(i) of the FOI Act and are supplemented by Part 10 of the FOI Guidelines.
53. In particular, the Applicant Procedures also address mat ers relating to the production of
submissions in IC reviews, which I summarise briefly below:
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• The writ en directions set out the procedures to be followed by
Paragraph [1.2]
applicants for IC reviews.
• Applicants must respond to enquiries from the OAIC
Paragraph [1.22]
• Submissions provided to the OAIC are generally provided to other Paragraph [1.26]
parties to the review unless there is a reason not to do so
• A party can apply to the OAIC for their submissions to be held in
Paragraph [1.27]
confidence and not provided to another party
54. In
Hearne v Street the majority of the High Court explained:
“
where one party to litigation is compel ed, either by reason or by rule of court, or by reason of a
specific order of the court, or otherwise, to disclose documents or information, the party
obtaining the disclosure cannot, without leave of the court, use it for any purpose other than for
which it was given unless it is received into evidence. The types of material disclosed to which
this principle applies include documents inspected after discovery, answers to interrogatories,
documents produced on subpoena, documents produced for the purposes of taxation of costs,
documents produced pursuant to a direction from an arbitrator, documents seized
pursuant to an Anton Pil er order, witness statements served pursuant to a judicial direction and
affidavits”
[My bold underline]
55. I consider that submissions provided to the OAIC in an IC review are ‘
documents produced
pursuant to a direction from an arbitrator’. In this case, the arbitrator is the Australian Information
Commissioner and the relevant document are the submissions made by a party consistent with the
Applicant Procedures.
56. Relevantly, the Fair Work Commission explained in
Application by Peter Farac [2021] FWC 5971
(
Farac) that when a tribunal requires a party to make submissions, those submissions are then
subject to the Harman Undertaking. It also explained that this obligation may cease to apply in
certain situations where:
• compliance with the obligation would be inconsistent with a statute; or
• the relevant material was received into evidence available to the public.
57. I do acknowledge that published Information Commissioner Decisions may quote or summarise
submissions made by the parties to an IC review unless there is a reason not to (see paragraph
[1.30] of the Applicant Procedures).
58. It is clear that the author of Document 6 made submissions for the OAIC’s consideration consistent
with the Applicant Procedures.
59. Given that this particular matter in which Document 6 relates to has not been the subject of a
published decision– it has therefore not been made public and remains subject to the Harman
Undertaking. There is nothing before me to indicate that submissions made by a party in an IC
review, prior to it being published, are publicly available to the world.
60. For clarity, Document 6 has not been disclosed by the Commission pursuant to the FOI Act or other
authorising law. If Document 6 had been disclosed lawfully under the FOI Act or other authorising
law, then the Harman Undertaking would cease to apply as compliance with the obligation would be
inconsistent with a statute.
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61. In my view, Document 6 remains subject to the Harman Undertaking, which can only be
dispensed with by:
• seeking permission from the Australian Information Commission for those materials to be
used for a purpose other than what it was originally created for; or
• a statute has authorised its use for another purpose.
62. For completeness, the Harman Undertaking applies to the Commission. The Australian
Information Commission has not released the parties from this obligation nor has a law compelled
the production of document 6 or is it available publicly. The obligation would cease to apply if the
primary decision maker released the document to you, which is not the case here.
Documents 7 to 13
63. I af irm the primary decision maker’s reasons for decision, and some brief reasons in addition.
64. Documents 7 (and its attachments, being Documents 8 to 13) comprise a brief prepared for the
APS Commissioner. It has been marked both “
Confidential” and
“Legal Professional Privilege”. It is
clear that the Commission’s in-house legal advisors prepared this brief for the predominant purpose
of giving legal advice. I also note all the Commission’s in-house legal advisors hold practicing
certificates and have had regard to similar cases (see
‘DB’ and Australian Federal Police [2014]
AICmr 105 paragraph [21]).
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ATTACHMENT B
Rights of Review
Asking for a ful explanation of a Freedom of Information decision If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we will
explain the decision to you.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision. You have 60 days to apply in writing for
a review by the Office of the Australian Information Commissioner (the OAIC) from the date you
received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you should
include your contact information, a copy of the related FOI decision and provide details of your
reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Information Commissioner must be made in writing. The Information
Commissioner's contact details are:
Telephone:
1300 363 992
Website:
www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise of
powers or the performance of functions under the FOI Act. There is no fee for making a complaint.
A complaint to the Ombudsman may be made in person, by telephone or in writing. The
Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
Australian Public Service Commission I
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