Freedom of Information
CP1-6-001
PO Box 7910
CANBERRA BC ACT 2610
Tel: 02 626 62200
Fax: 02 626 62112
xxx@xxxxxxx.xxx.xx
Our reference: FOI 003/15/16
CD
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear CD
NOTICE OF DECISION ON FREEDOM OF INFORMATION REQUEST
I refer to your request of 7 July 2015 in which you requested access, under the
Freedom of
Information Act 1982 (FOI Act), to:
"1. Cocos Island Surveillance System -Concepts and Capability - 2013/2014, Strategic
Management - Research", and
2. Cocos Island Surveillance System -Trials and Reports - 2013/2014, Strategic
Management - Research - Projects".
Revised scope
By email of 13 July 2015, you agreed to the following revised scope:
“access under the Freedom of information Act 1982 (FOI Act), to documents from
Defence Science and Technology Organisation to the Department of Border Force
Control (formerly Department of Immigration and Border Protection) in relation to the
Cocos Island Surveillance System Trials, created during the period 1 June 2013 to 31
December 2014."
Background
On 15 July 2015, our office advised you of the preliminary assessment of charges associated
with your request. The statutory processing time for the request was suspended on this date.
You provided the receipt for your payment of the required deposit on 12 August 2015. As
such, the statutory deadline for processing your request was 7 September 2015.
On 28 August 2015, our office informed you that the decision maker had determined that
there was a requirement to consult with third parties under section 27 [Consultation –
documents affecting business] of the FOI Act, before finalising the decision. As such, in
accordance with section 15(6) [extension of processing period to comply with requirement of
section 27] of the FOI Act, the statutory timeframe was amended to 7 October 2015.
The purpose of this letter is to provide you with the decision relating to the document that is
the subject of your request.
Defending Australia and its National Interests
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FOI decision maker
Dr R Sandeman, Director Ministerial Liaison, Defence Science and Technology Group, is the
authorised officer pursuant to section 23 of the FOI Act to make a decision on this FOI
request.
Documents identified
Dr Sandeman identified 52 documents that match the description of your request. The
decision in relation to each document detailed in a schedule of documents, which will be
provided when the documents are released (refer to below for further information).
When documents are released, you will note the decision maker has added an FOI Item
number to each of the documents, which corresponds with the schedule.
Decision
Dr Sandeman decided to release the identified documents with deletions made in accordance
with section 22 [access to edited copies with exempt or irrelevant matter deleted] of the FOI
Act, on the grounds that the deleted material is considered either irrelevant, or exempt under
section 33 [documents affecting national security, defence or international relations], and/or
section 47F [documents containing personal information] and/or section 47G [Public interest
conditional exemptions – business] of the FOI Act.
Material taken into account
In making her decision, Dr Sandeman had regard to:
a.
the content of the documents in issue;
b.
relevant provisions in the FOI Act;
c.
the
Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines);
d.
responses to internal Defence consultation; and
e.
responses to third party consultation.
Reasons
Section 22 - Irrelevant
Dr Sandeman found that certain documents contained material regarding matters which did
not relate to the scope of your request.
Therefore, Dr Sandeman considered that the material, if released, would disclose information
that would be reasonably regarded as irrelevant to the scope of the request. Consequently, in
accordance with subparagraph 22(1)(a)(ii) of the FOI Act, she decided to remove the material.
Section 33 - Security and Defence
Section 33 [Documents affecting national security, defence or international relations] of the
FOI Act states:
33 Documents affecting national security, defence or international relations
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
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(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth;
Section 33 of the FOI Act exempts material from release if its disclosure would, or could
reasonably be expected to cause damage to the security or defence of the Commonwealth. In
regards to the terms, ‘could reasonably be expected to’ and ‘damage’, the Guidelines specify:
5.13 The test requires the decision maker to assess the likelihood of the predicted or
forecast event, effect or damage occurring after disclosure of a document.
5.14 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 expectation that an effect has
occurred, is presently occurring, or could occur in the future.
5.25 ‘Damage’ for the purposes of this exemption is not confined to
loss or damage in monetary terms. The relevant damage may be intangible,
such as inhibiting future negotiations between the Australian Government and
a foreign government, or the future flow of confidential information from a
foreign government or agency. In determining whether damage was likely to
result from disclosure of the document(s) in question, a decision maker could
have regard to the relationships between individuals representing respective
governments.[11] A dispute between individuals may have sufficient
ramifications to affect relations between governments. It is not a necessary
consequence in all cases but a matter of degree to be determined on the facts
of each particular case.
In relation to the ‘security of the Commonwealth’, the Guidelines provide:
5.26 The term ‘security of the Commonwealth’ broadly refers to:
a. the protection of Australia and its population from activities that are hostile
to, or subversive of, the Commonwealth’s interests;
b. the security of any communications system or cryptographic system of any
country used for defence or the conduct of the Commonwealth’s international
relations (see definition in s 4(5)).
5.27 A decision maker must be satisfied that damage to the security of the
Commonwealth would be caused by disclosure of the information under
consideration….
The Guidelines provide that “
The Act does not define ‘defence of the Commonwealth’.
Previous AAT decisions indicate that the term includes:
Meeting Australia’s international obligations
Ensuring proper conduct of international defence relations
Deterring and preventing foreign incursions into Australian territory
Protecting the Defence Force from hindrance or activities which would
prejudice its effectiveness.”
Upon examination of the documents, Dr Sandeman found they contained information
regarding Commonwealth assets and capability that, if released, could allow those hostile to
the Commonwealth’s interests to take appropriate counter measures and/or hinder
Commonwealth operations. Hindrance of these activities could prejudice Commonwealth
agencies in their effectiveness to undertake required operations and to be ready for future
4
tasks as part of the Government’s overall national security strategy. Hence, Dr Sandeman
found that disclosure of this information would cause, or could reasonably be expected to
cause damage to the security and the defence of the Commonwealth. For this reason,
Dr Sandeman found the material to be exempt under subsections 33(a)(i) and 33(a)(ii) of the
FOI Act.
Section 47F - Personal privacy
Upon examination of the documents, Dr Sandeman identified information, specifically names
and signatures, belonging to individuals other than you that satisfy the definition of personal
information in section 4 of the FOI Act.
In addition, in consultation with the Department of Border Force Control (previously the
Department of Immigration and Border Control), the Department specifically requested that
names and details of the Department’s staff members below SES level also be considered
exempt under section 47F of the FOI Act, as this information is not well known, is not
publicly accessible and release of these names and personal details would result in an
unreasonable disclosure of staff members’ personal information.
In accordance with section 47F(2) of the FOI Act, in determining whether the disclosure of
the identified personal information would be unreasonable, Dr Sandeman had regard to:
(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 documents; and
(c)
the availability of the information from publicly accessible sources.
Against those criteria, Dr Sandeman found that:
(a)
the specific personal information is not well known to the general community;
(b)
the person to whom the information relates is not known to be, or to have been,
associated with the matters dealt with in the documents; and
(c)
the specific information is not readily available from publicly accessible
sources.
Noting the findings against the above criteria, Dr Sandeman decided that the disclosure of this
information would constitute an unreasonable disclosure of personal information belonging to
a person other than you. Accordingly, Dr Sandeman considered this material to be
conditionally exempt under section 47F of the FOI Act.
Subsection 11A(5) of the FOI Act requires Defence to allow access to a conditionally exempt
document unless, in the circumstances, access to the document would, on balance, be contrary
to the public interest.
Section 47G - Business
Dr Sandeman also found that some documents contained information concerning the business
affairs of third parties. Dr Sandeman considered that the disclosure of this information may
unreasonably adversely affect the third party in respect of its business, commercial and/or
financial affairs by allowing a competitor or another person access to confidential information
to the third parties business. Further, Dr Sandeman considered that whilst the contractor may
be prepared to provide this information to the Commonwealth, it may not wish this
information to be made publically available. As such, the inappropriate release of business
5
affairs by the Commonwealth could have an adverse effect on the future ability of
negotiations between both parties, and therefore, prejudice supply to the department.
Therefore, Dr Sandeman considered the information, if released, would adversely affect the
contractor in respect of their lawful business and commercial affairs, and is therefore
considered conditionally exempt under section 47G of the FOI Act.
Public interest considerations – Section 47F and 47G
In assessing whether the disclosure of the information considered exempt under section 47F is
contrary to the public interest, Dr Sandeman considered the factors that favour access to a
document set out in section 11B(3) of the FOI Act [Public interest exemptions – factors].
Subsection 11B(3) states “
factors favouring access to the document in the public interest
include whether access to the document would do any of the following:
(a)
promote the objects of this Act
(b)
inform debate on a matter of public importance
(c)
promote the effective oversight of public expenditure; and
(d)
allow a person to access his or her own personal information.”
Dr Sandeman noted that disclosure may promote some of the objects of the FOI Act, as
information held by the Government is a national resource. However, she considered
disclosure of this information would not increase public participation in the Defence process,
nor would it increase scrutiny or discussion of Defence activities.
Based on the above, under section 47F, Dr Sandeman considered that, on balance, the public
interest factors against disclosure outweigh the factors for disclosure of the identified personal
information. Therefore, she decided that it would be contrary to the public interest to release
information considered exempt under section 47F of the FOI Act.
Dr Sandeman considered the position of the third party under s47G, and formed the view that
disclosure of their business information would directly impact on the profitably of the
contractor, and further, it would also affect their ability to maintain competitive advantage
over their competitors. Dr Sandeman also considered that the public interest that Defence
does not disclose sensitive proprietary information of other companies or organisations, as
this may not only adversely affect their lawful business and commercial affairs, but also affect
their dealings and prejudice supply to the department.
Accordingly, Dr Sandeman considered that, on balance, the public interest factors against
disclosure, outweighed the factors for disclosure of the material. Therefore, Dr Sandeman
decided that it would be contrary to the public interest to release information considered to be
exempt, under section 47G of the FOI Act.
In coming to the above decision, Dr Sandeman also considered subsection 11B(4) [Public
interest exemptions – irrelevant factors] of the FOI Act, which lists factors which must be
taken into account in deciding whether access would, on balance, be contrary to the public
interest. Dr Sandeman advised that none of the factors she took into account were listed
under subsection 11B(4) of the FOI Act.
6
Payment of Charges
In order to finalise your request, you are required to pay the remaining $121.65. Please find
attached at Enclosure 1, a Payment Authorisation Form for the balance, for you to complete
and return.
FOI Disclosure Log
In accordance with the requirements of section 11C of the FOI Act, Defence is required to
publish details of information released under the FOI Act. Defence publishes identified
documents relating to requests within five working days of receipt by the applicant. Defence
will also publish this decision notice with privacy deletions.
Your Review Rights
Internal Review
Under the provisions of section 54 of the FOI Act, you are entitled to request a review of this
decision. You must request a review, in writing, within 30 days of the date of this letter, or the
date you receive the documents. Requests can be sent to:
Email: xxxxxxxxx@xxxxxxx.xxx.xx
Fax: 02 626 62112
Post: Freedom of Information Directorate - Reviews
Department of Defence
CP1-6-029
PO Box 7910
CANBERRA BC ACT 2610
Australian Information Commissioner
Under the provisions of section 54 of the FOI Act, you are also entitled to request an external
review of this decision by the Australian Information Commissioner. You have 60 days to
lodge such a request, using one of the contact methods below:
Email: xxxxxxxxx@xxxx.xxx.xx
Phone: 1300 363 992
Fax: 02 9284 9666
Post: GPO Box 2999
Canberra ACT 2601
Complaints
You may complain to Defence, the Information Commissioner or the Commonwealth
Ombudsman about an action taken by Defence in the exercise of its power or the performance
of its functions under the FOI Act. There is no fee for making a complaint. Should you wish
to complain to the Department of Defence, your complaint can be addressed to
Mr Tony Corcoran using the contact details below:
Email: xxxx.xxxxxxxx@xxxxxxx.xxx.xx
Post: Tony Corcoran
Assistant Secretary Information Management and Access Branch
CP1-6-14
PO Box 7911
CANBERRA BC ACT 2610
7
Contact details for the Commonwealth Ombudsman are below:
Phone: 1300 362 072)
Fax: 02 6276 0123
Post: Commonwealth Ombudsman
GPO Box 442
CANBERRA ACT 2601
Contact details for the Information Commissioner are above.
Should you have any questions in regard to this matter please contact this office.
Yours sincerely
John Peterson
Case Officer
Freedom of Information
6 October 2015
Enclosures:
1.
Freedom of Information Payment Authorisation Form
Freedom of Information
CP1-6-001
PO Box 7910
CANBERRA BC ACT 2610
Tel: 02 626 62200
Fax: 02 626 62112
xxx@xxxxxxx.xxx.xx
FREEDOM OF INFORMATION REQUEST – BALANCE OF CHARGES
AUTHORISATION
FULL NAME or
ORGANISATION
Service or PMKEYS ID (if
applicable)
POSTAL ADDRESS:
CONTACT PHONE
H M B
NUMBERS:
EMAIL:
FOI REFERENCE :
AMOUNT $
$121.65
By signing this form you are agreeing to pay the charges notified to you by the Freedom of
Information Directorate.
PLEASE DO NOT SEND CHEQUES OR MONEY ORDERS TO FOI
Once our office receives this form, the Department of Defence will generate an invoice in
order for you to make payment of the agreed charges via one of the payment options
made available.
Our office will not send documents until a receipt has been received in our office
notifying that the balance of charges amount has been paid.
Please sign below and return this form by one of the following:
Email: xxx@xxxxxxx.xxx.xx
Fax:02 6266 2112
Post: CP1-6-001, PO Box 7910, CANBERRA BC ACT 2610
Signature: ____________________________________________________
Defending Australia and its National Interests
