FOI 2024 80046 decision letter.pdf

OFFICIAL

Our ref: FOI-2024-80046
28 January 2025
Robert Not Given

By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Robert,
Freedom of Information Request- Access Decision
1.  I refer to your request of 30 November 2024 to this Office under the Freedom of
Information Act 1982 (FOI Act) for access to documents in the following terms:
"On 12 March 2024, in matter NSD 1076/2023 –  Eli Turner v Commonwealth
Ombudsman, Justice Perry of the Federal Court of Australia issued, by order:
a) a writ of certiorari quashing the decision of a delegate of the
Commonwealth Ombudsman dated 31 August 2023; and
b) a writ of mandamus directing the Commonwealth Ombudsman to
determine Mr Turner’s application according to law.
(https://comcourts.gov.au/file/Federal/P/NSD1076/2023/3965406/event/3172198
6/document/2245763)
Prior to the issuance of the writs, the Commonwealth Ombudsman conceded that
the decision dated 31 August 2023 is affected by jurisdictional error because the
delegate erred in the exercise of their discretion by concluding that the “Office is
limited to considering the reported conduct, rather than the impact of the abuse”
and that this error was material.
Under the FOI Act 1982 (Cth), I request access to the decision notice (including
the reasons in support of the decision), dated 31 August 2023, which was affected
by jurisdictional error."
Helping people, improving government
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2.  On 10 December 2024, our Office acknowledged your request and informed you that
the document captured in the scope of your request refers to personal information of
a third party and we had formed the view that this third party may wish to make
exemption contentions in accordance to section 27A of the FOI Act.
3.  As I determined that a consultation requirement applied, the time to provide you with
a decision on your FOI request was extended by 30 days pursuant to section 15(6) of
the FOI Act. This extended the due date to 29 January 2025.
Decision
4.  I am authorised to make decisions on behalf of our Office under section 23 of the FOI
Act.
5.  This letter constitutes notice of my decision on your request for access.
6.  Our Office has identified one  document, totalling three pages, relevant to your
request. I have decided to refuse access to this document in full under section 47F,
and section 47E(d) of the FOI Act. I also consider section 45, documents containing
material obtained in confidence, is a relevant exemption although as I have found the
document to otherwise be exempt, I have not addressed that exemption below.
7.  A schedule setting out the relevant document is at Attachment A.
Document searches
8.  Our Office identified the documents by searching our electronic records
management system and electronic documents saved on shared or network drives
for any documents this Office may hold, that may fal  within the scope of the request.
I have also consulted with staff within the Office with specialised knowledge relating
to the subject matter of your request, who would be best placed to identify where
documents responsive to your request may be located.
Consultation

9.  I note that I have consulted with a third-party individual under section 27A of the FOI
Act  because documents within scope of your request contained their personal
information.  I have taken their views  into account in making this decision.  This
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individual objected to the release of  the document containing their personal
information to you.
Reasons for decision
Material taken into account
10.  In making my decision I had regard to the following:
•  the terms of your request
•  the content of the documents to which you sought access
•  consultations with relevant Ombudsman staff members
•  the consultation response from a third party under s 27A of the FOI Act
•  the outcome of relevant searches
•  the relevant provisions of the FOI Act
•  Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act, available at www.oaic.gov.au (FOI Guidelines)
11.  In considering whether all reasonable steps have been taken to locate documents
within scope, I have considered:
•  the subject matter of the documents requested
•  the file management systems in place
•  advice from individuals and line areas within the office who may be able to
assist.
Conditional exemption– personal privacy: s 47F
12.  Section 47F conditionally exempts a document to the extent that its disclosure would
involve the unreasonable disclosure of personal information about any person.
Personal information
13.  ‘Personal information’ is defined in section 4 of the FOI Act as:
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Information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information is true or not, and
(b) whether the information is recorded in a material form or not.
14.  The document contains personal information of third parties in the form of their full
names, place of  employment,  signature  of an  Ombudsman  staff  member, a
summary of the abuse reported to our Office, and details of past service history in the
Australian Defence Force.
Disclosure unreasonable
15.  If information is personal information, it wil  be conditional y exempt if its disclosure
would be ‘unreasonable.’ In considering whether disclosure would be unreasonable,
subsection 47F(2) of the FOI Act requires me to take into account:
a.  the extent to which the information is wel  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
c.  the availability of the information from publicly accessible sources
d.  any other matter I consider relevant.
16.  With regards to the content of the letter, the relevant information is not wel  known.
Some of the individuals to whom the information relates are not general y known to
be associated with the relevant information,  and the relevant information is not
readily available from public sources. Details about the contents of the letter were not
publicly disclosed in Eli Turner v Commonwealth Ombudsman. Limited information
about the decision and the court matter has been shared by our Office in our 2023-
24 Annual Report. The delegate who signed the letter is not generally known to be
associated with the relevant information, and the relevant information is not readily
available from public sources.
Helping people, improving government
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17.  The sensitive nature of some of the personal information, namely details of the abuse
reported,  is another matter  I consider relevant in determining disclosure is
unreasonable.
18.  I find that release of personal information,  including  information about the abuse
reported to our Office  and the third party's prior service history would involve the
unreasonable disclosure of personal information under section 47F(1) of the FOI Act.
Disclosure not in the public interest
19.  Section 11A(5) of the FOI Act provides that while an agency must give a person access
to a document if it is conditional y exempt, access may be refused if the document’s
disclosure would, on balance, be contrary to the public interest.
20. In deciding whether or not access should be given to this information, on the basis
that it is in the public interest to do so, I have taken into account the public interest
factors for and against disclosure, section 11B(3) of the FOI Act, the FOI Guidelines at
paragraphs [6.229 – 6.233], as wel  as matters specific to this agency’s functions and
operating environment.
21.  Broadly, I am of the view that disclosure may promote the objects of the FOI Act by
increasing  scrutiny, discussion or comment around decision making or increase
public participation in Government processes.
22. The following factors mitigate against disclosure:
•  the disclosure could reasonably be expected to prejudice the protection of a
person’s right to privacy;
•  the information is not on the public record or otherwise available from publicly
accessible sources; and
•  disclosure does not give you access to your personal information.
23. Release of the information could reasonably be expected to prejudice the protection
of a person’s right to privacy, specifically the privacy of the affected third party. I have
given considerable weight to the protection of an individual's right to privacy, and the
sensitivity of the personal information captured by the request.
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24. Pursuant to subsection 11A(5) of the FOI Act, I have concluded that this material is not
required to be disclosed because disclosure at this time would be, on balance,
contrary to the public interest.
Conditional exemption - certain agency operations: s 47E
25. Section 47E provides that:
A document is conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to,:
…
(d)  have a substantial adverse effect on the proper and efficient conduct of
the operations of the agency.
26. The FOI Guidelines state at paragraph 6.122 in relation to s 47E(d):
The exemption may also apply to documents that relate to a complaint made to
an investigative body. The disclosure of this type of information could reasonably
affect the wil ingness of people to make complaints to the investigative body,
which would have a substantial adverse effect on the proper and efficient
conduct of the investigative body’s operations.
Would, or could reasonably be expected to, have a substantial adverse effect
27.  Our Office receives and assesses  reports of al eged  abuse  and  makes
recommendations to Defence under the Defence Abuse Reparation Scheme under
Part IIA of the Ombudsman Act 1976 (Cth). Members of the public can provide our
Office with reports of abuse through our 'Reporting Abuse in Defence' form. The form
assures applicants their personal information when they contact the Defence Force
Ombudsman is treated as confidential and is managed in accordance with the
Privacy Act 1988 (Cth).
28. It is likely that if sensitive information about this Defence abuse matter was disclosed
it  would  compromise trust that the Office wil  maintain confidentiality.  This would
mean that members of the public would be less wil ing to make reports of abuse and
provide information to the Office. I am satisfied that public detriment could
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reasonably be expected to arise if the Ombudsman is compromised in its' ability to
obtain information from defence abuse reportees in future.
Disclosure not in the public interest
29. In deciding whether or not access should be given, on the basis that it is in the public
interest to do so, I have taken a number of matters into account. These matters
include the public interest factors as outlined in the Guidelines, as well as matters
particular to our agency’s functions and operating environment.
30. The following factors are in favour of disclosure:
•  disclosure would promote the objects of the FOI Act, including to inform the
community of the Government’s operations.
31.  The following factors are against disclosure:
•  would reasonably be expected to prejudice the protection of an individual’s
right to privacy,
•  would reasonably be expected to prejudice the proper and efficient conduct
of investigations by the Ombudsman,
•  would reasonably be expected to prejudice the Ombudsman’s ability to obtain
confidential information, and
•  would  reasonably be expected to prejudice an agency’s ability to obtain
similar information in the future.
32. In considering whether the public interest would require the documents to be
released, I am of the view that the factors against disclosure outweigh those in favour
of disclosure.
Review rights
Internal review
33. You can request internal review within 30 days of you receiving this decision. An
internal review wil  be conducted by a different officer from the original decision-
maker.
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34. No particular form is required to apply for review although it wil  assist your case to
set out the grounds on which you believe that the original decision should be
changed. Applications for internal review can be made:
•  via email to xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx
•  by mail to Commonwealth Ombudsman GPO Box 442 Canberra ACT 2601
35. If you choose to seek an internal review, you wil  afterward have a right to apply for
Information Commissioner review (IC review) of the internal review decision.
Information Commissioner review or complaint
36. You also have the right to seek IC review of this decision. For FOI applicants, an
application for IC review must be made in writing within 60 days of the decision. For
third parties who object to disclosure of their information, an application for IC review
must be made in writing within 30 days of the decision.
37. If you are not satisfied with the way we have handled your FOI request, you can lodge
a complaint with the OAIC. However, the OAIC suggests that complaints are made to
the agency in the first instance.
38. While there is no particular form required to make a complaint to the OAIC, the
complaint should be in writing and set out the reasons for why you are dissatisfied
with the way your request was processed. It should also identify the Ombudsman’s
Office as the agency about which you are complaining.
39. You can make an IC review application or make an FOI complaint in one of the
following ways:
•  online at https://www.oaic.gov.au/freedom-of-information/your-freedom-of-
information-rights/freedom-of-information-complaints/make-an-foi-
complaint
•  via email to xxxxx@xxxx.xxx.xx
•  by mail to GPO Box 5218 Sydney NSW 2001, or
•  by fax to 02 9284 9666.
Helping people, improving government
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40. More information about the Information Commissioner reviews and complaints is
available at its website: www.oaic.gov.au/freedom-of-information/foi-review-
process.
Contact
41.  You may contact me via email at xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx  or via
telephone on 1300 362 072.

Yours sincerely

Laura Mackenzie
Legal Officer
Legal Team
Helping people, improving government
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Attachment A

Schedule of documents- Freedom of Information Request FOI-2024-80046
Doc
Document Name
Description of Document
Decision of
Exempt or irrelevant Information redacted
No.
Access
material
1.
Final decision letter
Decision notice of decision
Exempt in ful
Section 47F – public
Personal information
regarding reparation
not to recommend a
interest conditional
including, details of a third
payment
reparation payment dated 31
exemption – personal
party's prior service history
August 2023
privacy
and a summary of the
abuse reported to our Office.

Section 47E- public
Reports of abuse our Office
interest conditional
receives under the Defence
exemption - certain
Abuse Reparation Scheme
operations of agencies  are confidential.

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