Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests on behalf of the OAIC.
Subject to the following provisions of the FOI Act, I have made a decision to:
• grant access in part to 4 documents
In accordance with section 26(1)(a) of the FOI Act, the reasons for my decision and
findings on material questions of fact are provided below.
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
The following line areas of the OAIC conducted reasonable searches for documents
relevant to you request:
• Freedom of Information Branch
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s case management system - Resolve
The following search terms were used when undertaking electronic records
searches:
• MR numbers
• Agency reference number
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 6 March 2024
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• the FOI Act, in particular 3, 11, 11A, 15, 26, 47F and 47E of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act to which regard must be had in performing a
function or exercising a power under the FOI Act (FOI Guidelines)
• consultation with Attorney General’s Department (AGD)
• consultation with the applicable line area of the OAIC in relation to your
request
Section 47E(d) – Proper and efficient conduct of the OAIC’s operations
In accordance with section 47E(d) of the FOI Act, I have made a decision to redact
material on the basis that disclosure would or could reasonably be expected to have
a substantial adverse effect on the proper and efficient conduct of the OAIC’s
operations.
Paragraph 6.101 of the FOI Guidelines explains that:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is
explained in greater detail in Part 5. There must be more than merely an
assumption or allegation that damage may occur if the document were to be
released.
Additionally, at 6.103 the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure.
The particulars of the predicted effect should be identified during the decision
making process, including whether the effect could reasonably be expected to
occur. Where the conditional exemption is relied upon, the relevant particulars
and reasons should form part of the decision maker’s statement of reasons, if
they can be included without disclosing exempt material (s 26, see Part 3).
The material that I have decided is subject to conditional exemption comprises of
information shared between the Attorney-Generals’ Department and the OAIC during
a private meeting between the two parties, in relation to an ongoing Information
Commissioner review (IC review).
In undertaking an assessment of this conditional exemption, I have had regard to
relevant and recent AAT and Information Commissioner decisions including
Seven
Network Operations Limited and Australian Human Rights Commission [2021] AICmr
66,
Paul Farrell and Department of Home Affairs (Freedom of information) (No 2) [2022]
AICmr 49 (8 April 2022) and
Knight v Commonwealth Ombudsman [2021] AATA 2504.
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In
Seven Network Operations Limited and Australian Human Rights Commission [2021]
AICmr 66, a document was found not to be conditionally exempt under
section 47E(d) of the FOI Act in circumstances where the agency argued that
disclosure of the relevant material would or could reasonably be expected to have
result in stakeholders declining to work with the Australian Human Rights
Commission. The decision found that there was not sufficient evidence to support
the conclusion that such harm would occur. Similarly in
Paul Farrel and Department
of Home Affairs (Freedom of information) (No 2) [2022] AICmr 49 (8 April 2022), whilst
the material found within the documents related to the Department of Home Affairs’
operations, the Commissioner determined that the Department had failed to provide
sufficient evidence as to why disclosure would have a substantial and adverse effect
on its operations. These decisions further reinforce the position that this provision
requires a high threshold as to the substantial and adverse effect that disclosure
would have on an agency’s operations.
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC, I have taken into consideration the functions and activities of
the OAIC. In particular, I have had regard to the Australian Information
Commissioner’s privacy powers, freedom of information powers and regulatory
powers, under the Australian Information Commissioner Act 2010 (Cth) (AIC Act), the
Privacy Act 1988 (Cth) (‘The Privacy Act’) and the Freedom of Information Act 1982
(Cth) (‘The FOI Act’). Under the AIC Act and the FOI Act, the Information
Commissioner has a range of functions and powers promoting access to information
under the FOI Act, including making decisions on Information Commissioner reviews
and investigating and reporting on freedom of information complaints, as well as
assessing and making decisions on vexatious applicant declarations.
The AAT has recognised in Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) [24] that the conduct of an
agency’s regulatory functions can be adversely affected in a substantial way when
there is a lack of confidence in the confidentiality of the investigative process.
Similarly, in this instance, the OAIC’s ability to carry out its regulatory functions
would be affected if there was a lack of confidence in the confidentiality of this
process.
I have refused access in part to 4 documents over material which relates to
information pertaining to the open and ongoing IC review. I accept that as party to
the IC review, you will be privy to the information related to this matter in future,
however, as this review remains open and is in its preliminary stages, I consider
disclosure of the relevant material at this stage can impede the efficient conduct of
the case. Specifically, review officers are still in the process of formulating their
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views, and gathering facts and evidence, and no decisions or findings have been
made regarding these reviews.
The OAIC’s Freedom of Information Regulatory Action Policy advises at paragraph 73
that the Information Commissioner will generally not comment publicly about
ongoing IC review applications.
I consider that there would or could be a substantial adverse impact on the operation
of the OAIC if the OAIC cannot conduct its regulatory functions in a confidential
manner. Premature release of information that is being considered by the OAIC in
relation to an open IC review, may impact on the efficiency of the process and divert
staff to respond to deal with further inquiries about information and issues that are
not yet determined.
For the reasons given above, I consider the relevant documents identified in the
schedule are conditionally exempt under section 47E(d) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
Public interest conditional exemptions--personal privacy (section 47F)
In accordance with section 47F of the FOI Act, I have made a decision to redact
material on the basis that disclosure would constitute an unreasonable disclosure of
personal information.
A document is conditionally exempt under section 47F(1) of the FOI Act where
disclosure would involve the unreasonable disclosure of personal information of any
person, including a deceased person. This exemption is intended to protect the
personal privacy of individuals.
There are two elements which must be satisfied to determine whether section 47F
applies:
1) Whether the information constitutes ‘personal information’; and
2) Whether the disclosure of the personal information is ‘unreasonable’.
I will now consider both elements of this test.
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Whether the information constitutes ‘personal information’
Section 4 of the FOI Act provides that the definition of personal information in the
Privacy Act 1988 (Cth) also applies to the FOI Act. The term personal information is
defined in section 6 of the Privacy Act to be:
… information or an opinion about an identified individual, or an individual
who is reasonably identifiable:
(a)
whether the information or opinion is true or not;
(b)
whether the information or opinion is recorded in a material form or
not.
The documents contain personal information of public servants who work within
AGD. This includes their full name, phone number and email addresses.
I am satisfied that this material meets the definition of personal information because
the material relates closely to the personal matters of an individual and disclosure of
this information would reasonably identify that individual.
Whether disclosure of the personal information would be ‘unreasonable’
In determining whether disclosure of other personal information in the documents
would involve an unreasonable disclosure of personal information, the FOI
Guidelines provide the following considerations at paragraph 6.140:
• the extent to which the information is well known
• whether the person to whom the information relates is known to be
associated with the matters in the document
• the availability of the information from publicly accessible sources
• any other matters the agency or Minister considers relevant.
The FOI Guidelines further describes the key factors for determining whether
disclosure is unreasonable at paragraph 6.143:
•
the author of the document is identifiable
•
the documents contain third party personal information
•
release of the documents would cause stress on the third party
•
no public purpose would be achieved through release.
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The FOI Guidelines explain at paragraph 6.138 that the test of ‘unreasonableness’ in
section 47F ‘implies a need to balance the public interest in disclosure of
government-held information and the private interest in the privacy of individuals’.
Consistent with
FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines at paragraph 6.143 explain that other relevant 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 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 submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or
likely use or dissemination of the information, and
•
whether disclosure of the information might advance the public interest in
government transparency and integrity
In consideration of these factors and the material contained within the documents, I
am satisfied that the release of this personal information, apart from the first name
of AGD employees, would be unreasonable.
Primarily, I consider that the release of surnames and contact information of AGD
employees unreasonable as the information is current, the individuals have objected
to the disclosure and the fact that the information will be published on the right to
know website and available to the world at large. I also do not consider the
disclosure of the information would advance the public interest in government
transparency and integrity. AGD FOI provides both a phone number and email
address for applicants to contact them. I do not consider that it would advance the
public interest to provide individual AGD FOI employee surnames and contact
details.
For the reasons given above, I consider the relevant documents identified in the
schedule are conditionally exempt under section 47F of the FOI Act.
As section 47F is a conditional exemption, I am also required to consider the
application of a public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
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Application of the public interest test – (section 11A and 11B)
As provided above, I have considered that material within the documents is subject
to conditional exemption under s 47E(d) and s 47F.
Section 11A(5) provides that where a documents are considered to be conditionally
exempt, an agency
must give the person access to those documents unless the FOI
decision maker would, on balance, would be contrary to the public interest.
This means that I must balance factors for and against disclosure in light of the
public interest.
In Chapter 6, the FOI Guidelines provide the following guidance:
6.4
There is a single public interest test to apply to each of the conditional
exemptions. This public interest test is defined to include certain factors that
must be taken into account where relevant, and some factors which must not
be taken into account.
6.5
The public interest test is considered to be:
•
something that is of serious concern or benefit to the public, not merely
of individual interest
•
not something of interest to the public, but in the public interest
•
not a static concept, where it lies in a particular matter wil often depend
on a balancing of interests
•
necessarily broad and non-specific, and
•
related to matters of common concern or relevance to al members of the
public, or a substantial section of the public.
6.6
It is not necessary for a matter to be in the interest of the public as a whole. It
may be sufficient that the matter is in the interest of a section of the public
bounded by geography or another characteristic that depends on the
particular situation. A matter of public interest or benefit to an individual or
small group of people may also be a matter of general public interest.
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, at paragraph 133
of the Decision Deputy President Forgie explained that:
… the time at which I make my decision for section 11A(5) requires access to be
given to a conditionally exempt document “
at a particular time” unless doing so is,
on balance, contrary to the public interest. Where the balance lies may vary from
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time to time for it is affected not only by factors peculiar to the particular
information in the documents but by factors external to them.
The FOI Act sets out four factors favouring access, which must be considered if
relevant. Of these factors, we consider the following to be relevant:
• promote the objects of the FOI Act, and
• allow a person access to their own personal information.
In addition to these factors favouring disclosure, I have also considered that the
following factors in favour of disclosure apply:
• disclosure would enhance scrutiny around government decision making.
Section 11B(4) of the FOI Act provides factors which are not to be taken into account
in , which I have had regard to. Section 11B does not further prescribe the factors
against disclosure to be considered. In considering the documents subject to this
request, I consider that the follow factors do not favour disclosure:
• disclosure could reasonably be expected to have a substantial adverse effect
on the conduct of the IC reviews; and
• disclosure of the personal information contained in the documents could
reasonably be expected to interfere with the individuals right to privacy.
In relation to information pertaining to your IC review, I acknowledge the public
interest in allowing individuals access to information that relates to them. However,
I have balanced this with the fact that the IC review is only in its preliminary stages
and discussions between AGD and the OAIC are ongoing. I have granted access to
large portion of the documents and only considered material exempt where I
consider that factors against disclosure outweighs the public interest in allowing you
access to information that relates to your IC review.
In relation to AGD employees’ surnames and contact details, I consider that there is
little public interest in the release of these details in these circumstances. When
balanced with the objections raised by the effected staff about the interference on
their right to privacy I have decided that the factors against disclosure outweigh the
public interest.
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.
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Disclosure log decision
Section 11C of the FOI Act requires agencies to publish online document released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
As discussed above and identified in the attached documents schedule, 4 documents
subject to this decision contain personal information, and information specifically
relevant to an ongoing IC review.
Accordingly, I have determined that it would be unreasonable to publish these
documents on the disclosure log.
Release of document
The documents are enclosed for release.
Please see the following page for information about your review rights.
Yours sincerely,
Emily Elliot
Senior Lawyer
5 April 2024
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request for
IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
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Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxx@xxxx.xxx.xx. More information is available on the Access our information page
on our website.
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