LEX 11451 Decision Letter.pdf

FOI Reference: LEX 11451
File Reference: 24/31014
26 August 2024
Tyler
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Tyler
Re: Freedom of Information Request
I refer to your request received by the Department of Foreign Aﬀairs and Trade (the
department) on 30 July 2024 and revised on 5 August 2024, for access to documents
under the Freedom of Information Act 1982 (the FOI Act).
I am writing to provide you with a decision about your request.
I have identiﬁed documents relevant to your request. After careful consideration, I
have decided to refuse access to the documents because the documents are exempt in
full under the FOI Act.
Your request
In your revised scope, you requested access to:
. . MOUs between Australia and the Philippines:
- MOU on Enhanced Maritime Cooperation to strengthen existing civil
and defence maritime commitments (2024)
- MOU on Cyber and critical technology to harden our resilience against
cyber attacks and encourage cooperation on the digital economy (2024)
Reasons
I am an oﬃcer authorised under section 23 of the FOI Act to make decisions in relation
to FOI requests.
In making my decision I have taken into account:
• the terms of your request;
• the documents within the scope of your request;
• the FOI Act; and
R G Casey Building John McEwen Cres Barton 0221
DFAT.GOV.AU
T +61 2 6261 1111
@DFAT

• the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines).
The reasons for my decision and for the application of exemptions under the FOI Act to
the document are set out below.
Where I refer to sections of the FOI Act, these are available at www.legislation.gov.au.
Where I refer to parts of the FOI Guidelines, these are available at
www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-
government-agencies/foi-guidelines.
Damage to international relations (section 33(a)(i i) of the FOI Act)
Under section 33(a)(iii) of the FOI Act, a document is exempt if its disclosure would, or
could reasonably be expected to, cause damage to the international relations of the
Commonwealth.
The phrase ‘international relations’ has been interpreted to mean the ability of the
Australian Government to maintain good working relations with other governments
and international organisations and to protect the ﬂow of conﬁdential information
between them (FOI Guidelines, paragraph 5.39).
This applies to documents, the disclosure of which may diminish the conﬁdence which
another country has in Australia as a reliable recipient of conﬁdential information,
making that country or its agencies less willing to cooperate with Australian agencies in
future (FOI Guidelines, paragraph 5.42).
The expression ‘damage’ can include intangible damage, including inhibiting future
negotiations between the Australian Government and a foreign government, or the
future ﬂow of conﬁdential information from a foreign government or agency
(FOI Guidelines, paragraph 5.25).
I consider the expectation of damage to international relations is reasonable in all the
circumstances, having had regard to the nature of the information, the circumstances
in which it was communicated and the relationship between the Commonwealth and
the foreign country (FOI Guidelines, paragraph 5.40).
The documents you have requested were, in their entirety, agreed to between
Australia and a foreign country in conﬁdence.
I consider that the disclosure of the documents would be reasonably likely to cause
damage to the international relations of the Commonwealth, and would diminish the
conﬁdence which other countries would have in Australia as a reliable recipient of
conﬁdential information. This information is therefore exempt under section 33(a)(iii)
of the FOI Act.

Material obtained in conﬁdence (section 33(b) of the FOI Act)
Under section 33(b) of the FOI Act, a document is exempt if disclosure would divulge
any matter communicated in conﬁdence to the Australian Government by or on behalf
of a foreign government, an authority of a foreign government or an international
organisation.
Information is communicated in conﬁdence by or on behalf of another government or
international organisation if it was communicated under an express or implied
understanding that the communication would be kept conﬁdential (FOI Guidelines,
paragraph 5.46).
Conﬁdentiality need not be formal. A general understanding that communications of a
particular nature will be treated in conﬁdence wil  suﬃce. The understanding of
conﬁdentiality may be inferred from the circumstances in which the communications
occurred, including the relationship between the parties and the nature of the
information communicated (FOI Guidelines, paragraph 5.48).
The documents you have requested were, in their entirety, agreed to between
Australia and a foreign country in conﬁdence. I consider that disclosure of these
documents would divulge information which was communicated in conﬁdence by a
foreign government to the Commonwealth and it is therefore exempt under section
33(b) of the FOI Act.
Review rights
Information about your review rights is set out in the Attachment for your reference.
Contact
Should you have any queries regarding this matter please contact the Freedom of
Information Section by email (xxx@xxxx.xxx.xx).
Yours sincerely
Clare Duﬃeld
Assistant Secretary
Department of Foreign Aﬀairs and Trade

Attachment
Your review rights
Internal review
You may apply for internal review of the decision (section 54 of the FOI Act). The
internal review application must be made within 30 calendar days from the day you
receive this notice.
Where possible, please attach reasons why you believe review of the decision is
necessary.
The internal review will be carried out by another oﬃcer within 30 days.
Any request for internal review should be directed via email to xxx@xxxx.xxx.xx or
addressed to:
Freedom of Information Section
Department of Foreign Aﬀairs and Trade
R G Casey Building
John McEwen Crescent
Barton ACT 0221
Australia
Australian Information Commissioner
You may apply to the Australian Information Commissioner to review my decision
(section 54L of the FOI Act). To do this, you must contact the Australian Information
Commissioner within 60 calendar days from the day you receive this notice.
You may also make a complaint to the Australian Information Commissioner about the
Department’s actions in relation to this decision (section 70 of the FOI Act). Making
such a complaint about the way the Department has handled your FOI request is a
separate process to seeking review of my decision.
Further information on applying for an Australian Information Commissioner review is
available at: www.oaic.gov.au/freedom-of-information/your-freedom-of-information-
rights/freedom-of-information-reviews.
Further information about how to make a complaint is available at:
www.oaic.gov.au/freedom-of-information/your-freedom-of-information-
rights/freedom-of-information-complaints.