PO Box 7820 Canberra BC ACT 2610
6 May 2024
Our reference: LEX 78943
Frank N Fearless (Right to Know)
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir/Madam,
Decision on your Freedom of Information Request
I refer to your request dated and received by Services Australia (the Agency) on 26 March
2024 for access under the
Freedom of Information Act 1982 (the FOI Act) to the following
documents:
I seek "the final report which is currently in the process of being drafted" which is
referred to in my previous FOI, Lex 78384. That is; the final report on the samples
prepared by Services Australia to inform decisions on whether and how to waive or
remediate its mountain of unlawful calculations.
With unlawful decision-making sitting somewhere between 54%-80% of all employment
income related debts from 2003-2021, the public interest in disclosure is particularly
compelling.
My decision
The Agency holds one document (totalling 68 pages) relating to your request.
I have decided to grant you
part access to this document (document 1) with some of the
content removed.
I have decided parts of documents, you have requested are exempt under the FOI Act as the
documents include:
• the material contained within the document is subject to legal professional privilege
(section 42 exemption)
• information, that if released, would or could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the operations of the
agency (section 47E(d) of the FOI Act), and
• personal information of a third party, the disclosure of which would be unreasonable
and contrary to the public interest (section 47F(1) of the FOI Act).
PAGE 1 OF 13
Please see the schedule at
Attachment A to this letter for a description of the document and
the reasons for my decision, including the relevant sections of the FOI Act.
How we wil send your document to you
The document is attached.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways you
can do this. You can ask for an internal review from within the Agency, or an external review
by the Of ice of the Australian Information Commissioner. You do not have to pay for a review
of the decision. See
Attachment B for more information about how to request a review.
Further assistance
If you have any questions, please email xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Tara
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Reviews Branch | Legal Services Division
Services Australia
PAGE 2 OF 13
PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
I seek "the final report which is currently in the process of being drafted" which is
referred to in my previous FOI, Lex 78384. That is; the final report on the samples
prepared by Services Australia to inform decisions on whether and how to waive or
remediate its mountain of unlawful calculations.
With unlawful decision-making sitting somewhere between 54%-80% of all employment
income related debts from 2003-2021, the public interest in disclosure is particularly
compelling.
On 4 April 2024 the Agency acknowledged your request and advised you we would not include
personal details about our staff (such as their names) without your consent. You did not contact
the Agency again about this. Therefore, staff details have not been redacted in accordance
with section 22(1) of the FOI Act.
What I took into account
In reaching my decision I took into account:
• your original request dated 26 March 2024
• the document which falls within the scope of your request
• consultation with third parties about a document containing/documents which contain
information concerning them
• whether the release of material is in the public interest
• consultations with Agency officers about:
o the nature of the document
o the Agency's operating environment and functions
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the Guidelines), and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that parts of the document you requested are exempt under the FOI Act. My
findings of fact and reasons for deciding that the exemptions apply to Document 1 are
discussed below.
PAGE 4 OF 13
Section 42 of the FOI Act – legal professional privilege
I have applied the exemption in section 42 of the FOI Act to parts of the document.
Section 42 of the FOI Act provides:
(1) 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.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the document
in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Paragraph 5.129 of the Guidelines provides the following guidance in relation to the application
of section 42:
At common law, determining 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
• whether the advice given is confidential.
(internal references omitted)
Document 1 contains legal advice provided to the Agency with respect to income
apportionment. I am satisfied the document is advice provided by legal advisers acting with
the required level of independence from the client and there is a clear legal adviser-client
relationship.
Without disclosing the content of the advice, I am satisfied that the exempted part of the
document does more than demonstrate the existence of the advice, but disclose the conclusion
and how it was relied upon.
I am satisfied LPP attaches to this document and LPP has not been waived, expressly or
otherwise. The documents have not been distributed further than reasonably necessary for
internal operational purposes. Furthermore, it has not been communicated or distributed in a
way that would be inconsistent with the maintenance of confidentiality. I am also satisfied the
substance of the legal advice contained in the document has not been used in any way which
is inconsistent with the maintenance of the confidentiality of the advice.
I am satisfied if this document were disclosed, it would most certainly impair the overall
outcome and how the advice was relied upon. Additionally, I am of the view disclosure of the
legal opinions and interpretation of legal mat ers of the Agency in such mat ers is likely to result
in some legal providers not to legal views, thus impairing the Agency’s ability to carry out its
PAGE 5 OF 13
functions effectively and efficiently. I am satisfied real harm is likely to result from the release
of the part of the document to which this exemption has been applied.
Conclusion
In summary, I am satisfied parts of Document 1 are conditionally exempt under section 42 of
the FOI Act. Accordingly, I have decided not to release the document in full to you.
Section 47E(d) of the FOI Act – Operations of the Agency
I have applied the conditional exemption in section 47E(d) of the FOI Act to parts of the
document.
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.
Paragraph 5.20 of the Guidelines provides:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is
sufficiently serious or significant to cause concern to a properly concerned reasonable
person’. The word ‘substantial’, taken in the context of substantial loss or damage, has
been interpreted as ‘loss or damage that is, in the circumstances, real or of substance
and not insubstantial or nominal’.
Further, in
Re James and Australian National University (1984) 6 ALD 687 the phrase ‘conduct
of operations’ was interpreted to extend ‘to the way in which an agency discharges or performs
any of its functions.’
Parts of Document 1 contain details of the Agency’s computer systems, including internal
business and management processes and screen shots relating to the use of the Agency’s
computer systems that are not publicly available.
Disclosure of this information would result in sensitive internal agency information being placed
in the public domain, resulting in increased vulnerability of the Agency’s computer systems to
cyber-attack.
The Agency’s purpose is to provide high-quality government services and payments to
Australians. It is a large, public facing, government organisation and cyber security is an
integral part of the Agency’s obligations to protect the information of all customers, staff and
government information.
Internal positional mailboxes
Parts of Document 1 also contain information relating to internal positional mailboxes of the
Agency.
The Agency’s purpose is to provide high-quality government services and payments to
Australians. It is a large, public facing, government organisation with many points of contact
designed to facilitate its purpose. Because of this, the Agency receives a significant volume of
correspondence from customers and members of the public each day.
PAGE 6 OF 13
The Agency’s Annual Report for 2022-2023 notes that from 1 July 2022 to 30 June 2023, the
Agency had 26.7 mil ion Medicare customers, 9.5 mil ion Centrelink customers and 1.1 mil ion
Child Support customers. There were over 10 mil ion face-to-face interactions in service
centres, 1.1 bil ion online transactions and 55.2 mil ion calls handled.
Noting, the large volume of interactions the Agency has with the public, the Agency has
established channels of communication for customers and members of the public, which have
been put in place to ensure the effective management of the significant volume of
communication received. Such channels include dedicated and externally published positional
mailboxes of dif erent business areas within the Agency. These have been established to
ensure correspondence is directed to the correct area and actioned accordingly. These
established channels are monitored to ensure quality of service and ensure the Agency can
respond to increased demand in a particular service as required.
Substantial peripheral work occurs in handling an enquiry, including filing, record keeping, and
statistical analysis. Ensuring customers contact a dedicated Agency line or publicly available
positional mailbox guarantees the call or email can be appropriately triaged, there is a record
of the contact and information can be collected to assist in the design and delivery of services.
Doing so also assists the Agency management to direct resources to where they are most
needed and rapidly respond to a surge in workload to avoid interruptions in service.
If contact were received directly, the onus of recording much of this data (which in most cases
is currently automatically collected) would fall upon individual staff members, who would need
to manually complete the tasks. This would negatively affect customers as more staf effort
would be diverted to this task, and away from the provision of critical services. If this information
is not recorded accurately, the integrity of Agency record keeping and reporting would be
jeopardised, creating further dif iculties in managing the correspondence received by the
Agency.
If internal positional mailbox details were to be made publicly available, this would have a
substantial adverse ef ect on the proper and efficient conduct of the operations of the Agency
for the following reasons:
• these are not in the public domain and are intended to be used to facilitate
confidential and prompt communications within the Agency.
• correspondence received and directed could be mishandled, lost, duplicated or
double-handled on account of it not being directed to the most appropriate teams
through the publicly available communication channels.
• from time to time, email addresses are deleted or changed due to operational
requirements, and if a member of the public sends an email to such an address,
there is a high probability the email would not be actioned. This may result in
services not being administered correctly, or at all.
Noting the Agency’s interactions with the public number in the mil ions and bil ions, diverting
people away from correct channels cannot be appropriately categorised as ‘insubstantial’ or
‘nominal’.
For the reasons set out above, I am satisfied the disclosure of internal positional mailboxes
are conditionally exempt under section 47E(d) of the FOI Act as release would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of the Agency.
PAGE 7 OF 13
Public interest considerations
Section 11A(5) of the FOI Act provides:
'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.'
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would promote the objects of the FOI Act.
I have also consider the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
• prejudice the Agency’s ability to safeguard its computer systems and the substantial
amount of sensitive personal information it holds about mil ions of Australians
• increase the risk of individuals circumventing the Agency’s established communication
channels for their own benefit, and
• undermine existing mechanisms of contacting the Agency, resulting in a limited ability
for the Agency to provide essential services to the Australian public.
Having regard to the factors above, I have decided that in the circumstances of this particular
matter, the public interest in disclosing the information in the document is outweighed by the
public interest against disclosure.
Conclusion
In summary, I am satisfied that parts of Document 1 are conditionally exempt under section
47E(d) of the FOI Act. Furthermore, I have decided that on balance it would be contrary to the
public interest to release this information. Accordingly, I have decided not to release the
document in full to you.
Section 47F of the FOI Act - unreasonable disclosure of personal information
I have applied the conditional exemption in section 47F(1) to part of document 1.
Section 47F 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).
(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;
PAGE 8 OF 13
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Personal Information
The term 'personal information' is defined as follows:
.. 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; and
(b) whether the information or opinion is recorded in a material form or not.
Paragraph 6.130 of the Guidelines provides:
Personal information can include a person's name, address, telephone number, date
of birth, medical records, bank account details, taxation information and signature.
I find Document 1 contains personal information of other people. This includes names, direct
phone numbers, signatures and interactions with the Agency.
Whether disclosure is 'unreasonable'
In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.138 of the
Guidelines provides:
The personal privacy exemption is designed to prevent the unreasonable invasion of
third parties' privacy. 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.
In deciding if the disclosure of certain third party personal information would be unreasonable,
I have considered the following factors:
• 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 the Agency's collection and use of the information, and
• the fact the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act.
I am satisfied the disclosure of certain third-party personal information would be unreasonable
for the following reasons:
• it relates to aspects of an individual's personal affairs
PAGE 9 OF 13
• you do not have the consent from this individual for the release of their personal
information, and
• the information is private and not available in full or in part from publicly-accessible
sources.
On this basis, I have decided the personal information included in the Document 1 is
conditionally exempt under section 47F(1) of the FOI Act.
Public interest considerations
Access to conditionally exempt documents must be given unless I am satisfied it would not be
in the public interest to do so per section 11A(5) of the FOI Act as extracted above.
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would promote the objects of the FOI Act and inform
the debate on a matter of public importance.
I have also considered the relevant factors weighing against disclosure, indicating access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
• prejudice an individual's right to privacy, and
• adversely affect or harm the interests of an individual or group of individuals,
including current employees and customers of the Agency.
Based on these factors, I have decided in this instance, the public interest in disclosing the
information in Document 1 is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Conclusion
In summary, I am satisfied parts of Document 1 are conditionally exempt under section 47F(1)
of the FOI Act. Furthermore, I have decided on balance it would be contrary to the public
interest to release this information. Accordingly, I have decided not to release the document in
full to you.
PAGE 10 OF 13
Summary of my decision
In conclusion, I have decided to grant you part access to one document with some of the
content removed.
I have decided parts of the document you have requested are exempt under the FOI Act on
the basis the document contains:
• the material contained within the document is subject to legal professional privilege
(section 42 exemption),
• operational information, the disclosure of which would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient conduct of
the operations of the Agency, and release would be contrary to the public interest
(section 47E(d) conditional exemption), and
• personal information of third parties, the disclosure of which would be unreasonable
and contrary to the public interest (section 47F(1) conditional exemption).
PAGE 11 OF 13
PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a ful explanation of a Freedom of Information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We wil explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of a FOI decision
If you stil believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act) gives
you the right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act,
you can apply for a review of an FOI decision by:
1. an Internal Review Of icer in Services Australia (the Agency); and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the Agency delegate who made
the original decision wil carry out the review. The Internal Review Of icer wil consider all
aspects of the original decision and decide whether it should change. An application for internal
review must be:
• made in writing
• made within 30 days of receiving this letter
• sent to the address at the top of the first page of this letter or by email to
xxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx.xx
Note 2: You do not need to fil in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the Agency within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original
FOI decision.
You wil have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 12 OF 13
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
Note 3: The Of ice of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
• If you are applying online, the application form the 'FOI Review Form' is available at
www.oaic.gov.au
• If you have one, you should include with your application a copy of the Agency's
decision on your FOI request
• Include your contact details
• Set out your reasons for objecting to the Agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian 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 Australian Information Commissioner must
be made in writing. The Australian Information Commissioner's contact details are:
Telephone: 1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may also complain to the Commonwealth 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 Commonwealth Ombudsman may be made
in person, by telephone or in writing. The Commonwealth Ombudsman's contact details are:
Phone: 1300 362 072
Website: www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 13 OF 13
