Our Ref: FOI-2024/0328114738
29 April 2024
Mr Alex Pentland
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
Notice of Decision: Request under the Freedom of Information Act 1982 (Cth)
1. I refer to your
Freedom of Information Act 1982 (Cth) (FOI Act) request to the
Australian Human Rights Commission (Commission) dated 28 March 2024.
2. I confirm that I am an officer authorised under s 23(1) of the FOI Act to make
decisions in relation to Freedom of Information requests.
3. On 3 April 2024, by email exchange between you and the Commission, you
agreed to reduce the scope of your request to correspondence sent between
relevant Commission staff who were involved in preparing Commissioner
Lorraine Finlay’s article in The Nightly ‘In silence, anti-Semitism and racism
flourishes’ published on 27 March 2024 (‘Opinion Piece’) - (‘revised scope’).
4. In that correspondence, you also agreed to the redaction of names and
personal details of non-SES Commission staff in the documents under s 22 of
the FOI Act.
5. From reviewing the Commission’s files relating to your complaint, I have
identified 28 documents within the revised scope. Where a document has
been duplicated, this has been noted in the schedule and not reproduced.
6. I consider that reasonable searches have been undertaken to locate any
documents within the revised scope, including searches undertaken by
Human Rights Commissioner Lorraine Finlay, the director of the Human
Rights team, the director of Strategic Communications and other staff.
7. The attached schedule of documents lists and describes each document
Australian Human Rights
GPO Box 5218
General enquiries
1300 369 711
Commission
Sydney NSW 2001
National Info Service
1300 656 419
ABN 47 996 232 602
www.humanrights.gov.au
TTY
1800 620 241
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Australian Human Rights Commission
within the request’s revised scope, and each document’s access decision.
Each document’s access decision has been made with regard to:
(a) the content of the documents within the revised scope
(b) the FOI Act
(c) guidelines issued by the Australian Information Commissioner under s 93A
of the FOI Act (Guidelines) including guidelines 6.23 and 6.24 on ensuring
that irrelevant factors are not taken into account1
(d) relevant case law.
1. Decision
8. The FOI Act requires documents identified as falling within the scope of an
FOI Act request to be produced in response to an FOI request, unless the Act
provides an exemption for a particular type of document.
1
9. The FOI Act sets out categories of documents that are wholly exempt and
categories of documents that are conditionally exempt. Conditionally exempt
documents must be produced in response to an FOI Act request unless it
would be contrary to the public interest to do so.
2
10. I have reviewed the relevant documents and have decided as follows:
(a) to grant access in full to documents 1, 4, 5, 7, 20, 21, 22, 23, 23A, 24A, 25,
26, 28 and 29
(b) to allow partial release of documents 3, 24 and 27, with redactions made
under s 22 of the FOI Act.
(c) to allow partial release of documents 2, 6, 8, 9 to 15, 16 to 19 being
correspondence between Commission staff. The emails have been
redacted where applicable, and have been refused under either or both s
47C (deliberative processes) and s 47E (documents affecting certain
operations of agencies) of the FOI Act. I have also made redactions
pursuant to your consent for the Commission to redact personal
1 FOI Act ss 11 and 11A.
2 FOI Act s 11A(5).
2
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information of non-SES Commission staff, under s 22 of the FOI Act.
(d) refused to release documents 1A, 2A, 5A, 9A and 15A being draft copies of
the Opinion Piece under s 47C (deliberative processes) of the FOI Act.
2. Reasons for Decision
2.1 Conditional exemption – documents containing a deliberative process
11. Section 47C of the FOI Act provides that a document is conditionally exempt
from disclosure if it contains deliberative matter.
12. Deliberative matter includes an opinion, advice or recommendation that has
been obtained, prepared or recorded, or consultation or deliberation that has
taken place in connection with a Commonwealth agency’s functions. It may
include a col ection of facts or opinions, the pattern of facts or opinions
considered1,
3 or interim decisions or deliberations.
13. Deliberative matter does not include operational information or purely
factual material,
4 or a decision reached at the end of the deliberative
process.
5
14. The FOI Guidelines explain that a deliberative process involves the exercise of
judgment in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the
weighing up or evaluation of the competing arguments or considerations
that may have a bearing upon one’s course of action. In short, the
deliberative processes involved in the functions of an agency are its
thinking processes – the processes of reflection, for example, upon the
wisdom and expediency of a proposal, a particular decision or a course of
action.
15. Deliberative processes involve the weighing up or evaluating of competing
3
Chapman and Chapman v Minister for Aboriginal and Torres Strait Islander Affairs [1996] AATA 210.
4 Section 47C(2)(b), FOI Act.
5
Chapman and Chapman and Minister of Aboriginal and Torres Strait Islander Affairs [1996] AATA 210;
British
American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19;
Briggs
and the Department of the Treasury (No. 3) [2012] AICmr 22.
3
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arguments.
6 One person may deliberate on their own.
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16. For documents to be conditional y exempt pursuant to s 47C of the FOI Act,
the deliberative process must relate to a Commission function, and the
processes undertaken in carrying out Commission functions. Part of the
Commission’s functions as a Commonwealth ‘agency’ is to fulfil obligations
under the FOI Act including consider and respond to request for access to
documents under the FOI act make decisions on whether .
8
17. In my view, documents 2, 6, 8, 9 to 15, 16 to 19, and 1A, 2A, 5A, 9A, 15A in the
Schedule of documents contain deliberative matters and are conditionally
exempt.
18. The documents include the following content:
(a) email correspondence between Commissioner Finlay and other
Commission staff (including the President of the Commission (Rosalind
Croucher), the Chief Executive (Leanne Smith), Race Discrimination
Commissioner (Giridharan Sivaraman), director of the Human Rights team,
director of the Strategic Communications and senior policy executive of
Human Rights and Strategy), regarding the drafting of the opinion piece
(b) working drafts of the ‘Opinion Piece’ (documents 1A, 2A, 5A, 9A, 15A)
(c) discussions including expressing opinions, deliberating options, and
providing advice and recommendations regarding the Commission’s
position and function in relation to the opinion piece and related issues.
19. I consider that the above discussions form part of the operational function of
the Commission: s 11(g) of the
Australian Human Rights Commission Act 1986
(Cth) (AHRC Act).
20. However, a document that is conditionally exempt under s 47C of the FOI Act,
must be disclosed unless disclosure would be contrary to the public interest.
9
6
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67;
British American Tobacco Australia Ltd
and Australia Competition and Consumer Commission [2012] AICmr 19;
Dreyfus and Secretary Attorney-
General’s Department (Freedom of Information) [2015] AATA 962.
7
Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512.
8 Section 11 of the FOI Act.
9 s 11A(5), FOI Act.
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Australian Human Rights Commission
(a) Contrary to the public interest to disclose
21. In my view, the disclosure of the material (marked with redactions) contained
within these documents and the drafts of the Opinion Piece, would be
contrary to the public interest. I have taken the fol owing matters into
consideration.
22. I consider that disclosure may promote the objects of the FOI Act, however I
am not satisfied that disclosure would meaningful y inform public debate on a
matter of public importance given the preliminary and contemplative nature
of these documents.
23. I consider that there is public interest in protecting drafts of opinion pieces
intended for publication and related discussions, allowing for frank
consideration of the issues and open col aboration between Commission staff
(including the President and Commissioners). The draft Opinion Piece
contains preliminary views by its author and was not intended to be viewed
or published in that form, the draft opinion piece therefore represents the
thinking process prior to producing the final product. I consider there is public
interest in protecting the integrity of decision-making, to separate material
that was contemplative in nature and the final decision.
24. In addition, the disclosure of these documents could reasonably be expected
to prejudice the management functions of the Commission as an
agency.
10The list of factors set out in the Guidelines is non-exhaustive.
25. Relevant management functions of the Commission include promoting an
understanding and acceptance, and the public discussion, of human rights in
Australia.
11 The Opinion Piece drafted by Commissioner Finlay, as the Human
Rights Commissioner, addresses human rights issues on racism, specifically
anti-semitism. The redacted materials in the email correspondence contain
discussions, deliberations and consideration of relevant issues by senior
Commission staff that relate to the exercise of these functions of the
Commission.
10 Australian Information Commissioner, FOI Guidelines [6.22(n)].
11
Australian Human Rights Commission Act 1986 (Cth), s 11(1)(g).
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Australian Human Rights Commission
26. I am satisfied that disclosure of the deleted material could reasonably be
expected to inhibit the effectiveness of the evaluation and decision-making
processes of the Commission relevant to exercising these functions.
27. Having regard to all of these matters, I am satisfied that disclosure of the
redacted material in these documents and the drafts of the Opinion Piece
would be contrary to the public interest. Accordingly, I have refused to release
the working drafts of the Opinion Piece.
28. However, in relation to documents 2, 6, 8, 9 to 15, 16 to 19, I consider that the
internal email correspondence can be prepared to remove the deliberative
material, with appropriate redactions and these documents have been
provided in the bundle of documents.
3.2 Conditional exemption (documents affecting certain operations of
the agency
29. Section 47E(d) of the FOI Act provides that a document is conditionally
exempt from disclosure if disclosure ‘would, or could reasonably be expected
to … have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency’. The Commission is an agency for the purposes
of the FOI Act.
30. I have formed the view that disclosure of the documents (or parts of the
documents), namely documents 2, 7, 9, 14, 15, 16, 17, 18, 19 and 20 could
reasonably be expected to have a substantial adverse effect on the proper
and efficient conduct of the Commission’s function to promote an
understanding and acceptance, and the public discussion, of human rights in
Australia, consistent with s 11(1)(g) of the AHRC Act.
31. The Guidelines provide that:
(a) the phrase 'could reasonably be expected to' requires the decision maker
to assess the likelihood of the predicted or forecast event, effect or
damage occurring after disclosure of a document, and
(b) the use of the word 'could' in this qualification is less stringent than
'would', and requires analysis of the reasonable expectation rather than
certainty of an event, effect or damage occurring. It may be a reasonable
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expectation that an effect has occurred, is presently occurring, or could
occur in the future.
12
32. A central function of the Commission is to promote an understanding and
acceptance, and the public discussion, of human rights in Australia. It is
therefore essential for senior management staff at the Commission
(including Commissioners and directors) can communicate with one another
in a candid and open manner as part of internal deliberative processes, when
considering how to best serve the functions of the Commission.
33. For these reasons I find that disclosure of the (redacted material) in
documents 2, 7, 9, 14, 15, 16, 17, 18, 19 and 20, could reasonably be
expected to have a substantial and adverse effect on the proper and efficient
conduct of the operations of the Commission.
34. Pursuant to s 11A(5) of the FOI Act, a document must be disclosed even if it is
conditional y exempt, unless disclosure of the document would be contrary
to the public interest. In my view, disclosure of the documents in question
would be contrary to the public interest.
35. Section 11B(3) of the FOI Act sets out factors favouring disclosure of
documents. These include:
• promoting the objects of the Act
• informing debate on a matter of public importance
• promoting effective oversight of public expenditure
• al owing a person to access his or her own personal information.
36. I have considered whether disclosure would promote the objects of the FOI
Act. The objects of the FOI Act relevantly include the objects of:
• increasing scrutiny, discussion, comment and review of the Government’s
activities
• increasing recognition that information held by the Government is to be
managed for public purposes, and is a national resource
12 Re Maksimovic and Australian Customs Service [2009] AATA 28.
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Australian Human Rights Commission
• facilitating and promoting public access to information, promptly at the
lowest reasonable cost.
37. In my view, disclosure of the withheld information may, to some limited
extent, promote the objects of the FOI Act and increase recognition that
information held by Government is to be managed for public purposes and is
a national resource. However, I do not consider that the contents of the
documents in question would particularly increase scrutiny, discussion,
comment and review of the Government’s activities.
38. I have considered whether disclosure would inform debate on a matter of
public importance. Following my review of the comments and discussions
over email correspondence between senior management, I do not consider
those matters would inform public debate. Neither do I consider that
disclosure would promote oversight of public expenditure.
39. I have also had regard to the OAIC Guidelines which outline public interest
factors favouring disclosure and public interest factors against disclosure.
The OAIC Guidelines at 6.22 relevantly specify that disclosure may be
contrary to the public interest where disclosure could reasonably be
expected to:
• impede the flow of information to … [a] regulatory agency
• prejudice an agency’s ability to obtain confidential information
• prejudice an agency’s ability to obtain similar information in the future
• harm the interests of an individual or group of individuals.
40. I consider that the release of the redacted material would impede the
Commission’s ability to carry out its functions, as it could reasonably deter
senior Commission staff, from ful y and candidly participating in important
deliberative decision-making processes.
41. In my view, the factors against disclosure of the withheld materials outweigh
the factors in favour of disclosure. Accordingly, it is my view that disclosure
would be contrary to the public interest. However, I consider it possible to
produce copies of the documents with the material redacted and have
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Australian Human Rights Commission
provided these in the bundle of documents.
42. Your review rights
Internal Review
43. You may apply for an internal review of my decision by writing to the
Commission within 30 days of the date of this letter stating the reasons why
you believe the review of the decision is necessary. The internal review wil be
carried out by another officer within 30 days.
Information Commissioner Review
44. 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 of the date of this letter, and be lodged in one
of the fol owing ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html
?formCode=ICR_10
Email:
xxxxx@xxxx.xxx.xx
Post:
GPO Box 5218, Sydney NSW 2001
In Person:
Level 3, 175 Pitt Street, Sydney NSW
Go to
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/ for
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Australian Human Rights Commission
more information about a review by the Information Commissioner.
Yours sincerely
Jessica Tran
Senior Lawyer
T: +61 2 9284 9726
E:
xxxxxxx.xxxx@xxxxxxxxxxx.xxx.xx
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