FOI 141 2024 Notice of FOI decision 9 Aug 2024.pdf

Australian Securities
and Investments Commission

Office address:

Level 5, 100 Market Street,
Sydney NSW 2000

Mail address for Sydney office:
GPO Box 9827,

MELBOURNE VIC 3001

Tel: +61 1300 935 075

Fax: +61 1300 729 000

www.asic.gov.au/

Me

By email: foi+request-11634-
xxxxxxxx@xxxxxxxxxxx.xxx.xx

Our Reference: FOI 141-2024

9 August 2024

Dear Me
Freedom of Information Request No. FOI 141-2024
I refer to your request of 6 July 2024 for access to documents in the possession
of the Australian Securities and Investments Commission (ASIC) pursuant to the
Freedom of Information Act 1982 (FOI Act).
Following a request consultation process,1 you revised your request as follows:
- All emails sent by ASIC between 0000 1 July and 2359 5 July 2024,
where:
- The author is an ASIC Executive Director (or equivalent), including
acting Executive Director, and
- The email relates in any way to the SERC report on ASIC investigation
and enforcement (whether before or after the report’s formal tabling),
and
- The email was not sent outside the Commonwealth (that is, internal
emails, or to other Commonwealth entities, or a minister/their office, are
all included; emails to journalists, or companies (that are not CCEs), or
private citizens are excluded)
Personal information of any Senior Executive Leader, Senior Executive
Specialist or Executive Director or equivalent, including a/SES and SES at
other departments, is included unless (1) it is sensitive personal

1 On 12 July 2024, I advised you that I intended to refuse your request on the basis that a
practical refusal reason existed within the meaning of s 24AA(1)(a) of the FOI Act. I invited you
to revise the terms of your request before a final decision was made (s 24AB notice). On 17 July
2024, you revised the scope of your request.

2

information, or (2) it is a non-work contact detail (such as a mobile
phone number where the employer didn’t provide the phone)
Duplicates are excluded - one email trail is sufficient if it has all the emails
in scope
Attachments to emails, and other documents referred to in emails, are
included
Third party personal information, apart from Senior Executive Leader,
Senior Executive Specialist or Executive Director and SES as above, is
excluded except for first names
All emails domains (‘@asic.gov.au’) are included
All email addresses are included subject to the above. So positional
emails and Senior Executive Leader, Senior Executive Specialist or
Executive Director and SES names included, other names excluded
except first name
The 30-day statutory time period for processing your request commenced on
the day after the day on which your request was received.2 This timeframe was
extended until 9 August 2024 to undertake the request consultation process.3
I am the authorised decision-maker for the purposes of section 23 of the Act
and this letter gives notice of my decision.
Decision and reasons for decision
I have identified 11 documents within the terms of your request. These documents
are described in the schedule attached to this letter.
I advise that I have decided to:
  grant access in full to 6 documents: documents 1, 2, 4, 7, 8 and 9
  grant access in part to 5 documents with the removal of exempt
material pursuant to the certain operations of agencies exemption
(s 47E(d)): documents 3, 5, 6, 10 and 11, and
  remove some matter as irrelevant to the scope of the request pursuant
to s 22 of the FOI Act: documents 1 to 6 and 8 to 11.
I have taken the following material into account in making my decision:
  the terms of your request
  the documents within scope
  searches conducted by ASIC staff
  advice from responsible business areas
  the FOI Act (specifically ss 11A(5), 22 and 47E(d)), and
  the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the FOI Guidelines).
My reasons are set out below.
Searches undertaken

2 Freedom of Information Act 1982 (Cth), s 15(5).
3 FOI Act, s 24AB.

3

Based on the terms of the request, searches were coordinated by liaising with
the staff members identified in the terms of the request.
Relevant staff conducted keyword and manual searches on across all
relevant locations that the documents could be held within such as ASIC’s
email system (Outlook). Given the terms of the request, the keywords utilised
included: Report, SERC, Senate and Inquiry.
Following these searches, 11 relevant documents were identified.
Having regard to the evidence of searches conducted, I am of the view that
searches have been conducted across all relevant locations that the
documents could be held within and all relevant documents were identified.
Certain operations of agencies exemption (s 47E(d))
For the reasons below I have found that the documents4 contain material
that is conditionally exempt under s 47E(d) of the FOI Act. This material can be
described as:
  details that can facilitate direct contact with ASIC staff members and
teams such as group email addresses and
  material that relates or refers to information received from third parties.
Section 47E(d) provides:
A document is conditionally exempt if its disclosure under this Act
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 FOI Guidelines explain:
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’.5
The FOI Guidelines further explain:
For the grounds in ss 47E(a)-(d) to apply, the predicted effect needs to
be reasonably expected to occur... There must be more than merely
an assumption or allegation that damage may occur if the document
is released.
...
An agency cannot merely assert that an effect will 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 on, the relevant particulars and reasons should form

4 Documents 3, 5, 6, 10 and 11.
5 FOI Guidelines [6.18].

4

part of the decision maker’s statement of reasons, if they can be
included without disclosing exempt matter... 6
Details that can facilitate direct contact with ASIC staff members and teams
The documents include the details of staff members and internal group email
addresses.7 There is evidence that some of these staff members are subject to
frequent direct contact from members of the public about matters unrelated to
their role at ASIC. The public release of this material could lead to increased
direct contact from members of the public and impede staff from quickly
identifying and progressing priority matters for ASIC. Given the significance of
the staff members’ role within ASIC, this would impact upon ASIC’s ability to
efficiently progress significant matters.
I am satisfied that if the staff members are subject to additional significant
contact about unrelated matters outside of ASIC’s established communication
channels for members of the public, this would have an adverse and
substantial effect on ASIC’s functions as the federal regulator of financial
services.
This material is conditionally exempt under s 47E(d) of the FOI Act.
Third party material
The documents include material that relates or refers to information received
from third parties on a voluntary basis (‘third party material’).8 Given ASIC’s
current regulatory context and based on the nature of the information and
communications with the third parties, the release of this material could
reasonably be expected to have an adverse impact on the relevant
stakeholder relationships. Prejudice to these stakeholder relationships would
impede ASIC from receiving and releasing candid and fulsome advice and
information relevant to its operations and effectiveness.
I am satisfied that prejudice to the nature and quality of information that ASIC
receives from relevant stakeholders and consequently releases to the public
would have an adverse and substantial effect on ASIC’s functions as the
federal regulator of financial services.
This material is conditionally exempt under s 47E(d) of the FOI Act.
Public Interest Test
As I have decided that the documents contain material that is conditionally
exempt under s 47E(d) of the FOI Act, I am required to consider whether the
disclosure of the documents would, on balance, be contrary to the public
interest.
The FOI Act provides that access must be given to a conditionally exempt
document unless disclosure would be contrary to the public interest.
I have had regard to the public interest factors favouring access to
documents outlined in section 11B(3):

6 FOI Guidelines [6.90] and [6.92].
7 Documents 3, 5, 6, 10 and 11.
8 Documents 3, 10 and 11.

5

1.  Access to the documents would promote the objects of the FOI Act
(including all matters set out in sections 3 and 3A).
2.  Access to the documents would inform debate on a matter of public
importance.
3.  Access to the documents would promote effective oversight of public
expenditure.
4.  Access to the documents would allow a person to access his or her
personal information.
Of these factors, factor 1 is relevant. The release of the documents supports
the objects of the FOI Act to provide a right of access to information in the
possession of Commonwealth government agencies and promote
accountability and transparency in government. These considerations weigh
in favour of disclosure.
The above factor must be balanced against the factors against disclosure.
Although the FOI Act does not specify any factors against disclosure in the
public interest, the FOI Guidelines include a non-exhaustive list of factors.9 In
the circumstances of this case relevant factors against disclosure are that
disclosure could reasonably be expected to prejudice ASIC’s ability to
efficiently progress functions and responsibilities imposed upon it by
Parliament.
I have not taken into account the irrelevant factors outlined in s11B(4) of the
FOI Act in deciding whether access to the documents would be contrary to
the public interest.
In balancing the factors for and against disclosure, I give greater weight to
the public interest in ensuring that ASIC is not impeded in carrying out the
functions and responsibilities imposed upon it by Parliament.10
On balance, I find that giving access to the conditionally exempt material
would be contrary to the public interest. The relevant material is exempt
under s 47E(d) of the FOI Act.
Section 22
Section 22(2) of the FOI Act requires an agency to give an applicant access to
an edited copy of a document with the exempt and irrelevant matter deleted
if it is reasonably practicable for the agency to prepare an edited copy, having
regard to:
  the nature and extent of the modifications (s22(1)(c)(i)); and
  the resources available to modify the document (s22(1)(c)(ii)).
The documents include material that:
  does not “relat[e] in any way to the SERC report on ASIC investigation
and enforcement (whether before or after the report’s formal tabling)”
  is not in an email from an Executive Director or referenced in an email
from an Executive Director, and

9 FOI Guidelines [6.233].
10 Utopia Financial Services and Australian Securities and Investments Commission [2017] AATA
269 [135].

6

  is personal information of third party individuals beyond their first names
(such as their surnames and contact details).
This material does not fall within the scope of your request and is irrelevant
matter.
I find that it is possible to prepare an edited copy of the documents with the
removal of the irrelevant matter (s 22(1)(b)). ASIC is required to provide you with
access to the edited documents (s 22(2)).
Review rights
If you are dissatisfied with my decision, you may apply for internal review or
Information Commissioner review of the decision.
Internal review
Under section 54 of the FOI Act, you may apply in writing to ASIC for an
internal review of my decision. The internal review application must be made
within 30 days of the date of this letter. Where possible please attach your
reasons for seeking review of the decision. The internal review will be carried
out by another officer within 30 days.
Information Commissioner review
Under section 54L of the FOI Act, 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 following ways:
  online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?form
Code=ICR_10
  email: xxxxx@xxxx.xxx.xx
  post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the
Office of the Australian Information Commissioner website. Go to
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/.
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please
let us know what we could have done better. We may be able to rectify the
problem. If you are not satisfied with our response, you can make a complaint
to the Australian Information Commissioner. A complaint to the Information
Commissioner must be made in writing. Complaints can be lodged in one of
the following ways:
  online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?form
Code=ICCA_1
  email: xxxxx@xxxx.xxx.xx
  post: GPO Box 5218 Sydney 2001

7

More information about complaints is available on the Office of the Australian
Information Commissioner at https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/make-an-foi-complaint/.
If you are not sure whether to lodge an Information Commissioner review or
an Information Commissioner complaint, the Office of the Australian
Information Commissioner has more information at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Questions about this decision
If you have any questions or wish to discuss this decision, please contact me on
xxxxxx.xxxxxx@xxxx.xxx.xx.

Yours sincerely
Dr Rachel Ranjan
Senior Lawyer, FOI
Australian Securities and Investments Commission

(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)

8

FOI 141‐2024
SCHEDULE OF DOCUMENTS
Number  Date
Pages   Description
Decision
Exemption(s)
1 July 2024  1
Internal ASIC email from  Release in full
Irrelevant matter: s 22
1
ED attaching transcript
2 July 2024  10
Internal ASIC email from  Release in full
Irrelevant matter: s 22
2
ED
3 July 2024  11
Internal ASIC email from  Release in part  Irrelevant matter: s 22
ED

Contact details, third
3
party material: s 47E(d)
3 July 2024  13
Internal ASIC email from  Release in full
Irrelevant matter: s 22
4
ED
3 July 2024  14
Internal ASIC email from  Release in part  Irrelevant matter: s 22
ED attaching SERC

Report
Contact details: s
5
47E(d)
3 July 2024  248
Internal ASIC email from  Release in part  Irrelevant matter: s 22
ED

Contact details: s
6
47E(d)
4 July 2024  251
Internal ASIC email from  Release in full
Irrelevant matter: s 22
7
ED
4 July 2024  253
Internal ASIC email from  Release in full
Irrelevant matter: s 22
8
ED
4 July 2024  255
Internal ASIC email from  Release in full
Irrelevant matter: s 22
9
ED
4 July 2024  257
Internal ASIC email from  Release in part  Irrelevant matter: s 22
ED

Contact details, third
10
party material: s 47E(d)
5 July 2024  262
Internal ASIC email from  Release in part  Irrelevant matter: s 22
ED

Contact details, third
11
party material: s 47E(d)