OFFICIAL
Your ref: MR25/00335
Our ref: 2025-805083
23 April 2025
Mr Ishraq Quashem
Case Support Officer
FOI Case Management Branch
By email: xxxxx@xxxx.xxx.xx
Dear Mr Quashem,
MR25/00335- Robert RTK
- Information Commissioner Review
1. I refer to the Office of the Australian Information Commissioner's (OAIC) letter of 12
March 2025 and Direction pursuant to section 54Z of
the Freedom of Information
Act 1982 (Cth) (FOI Act).
2. You have directed the Commonwealth Ombudsman's Office (Office), the
respondent, to:
a. engage with the applicant (Robert RTK);
b. provide information as set out in Table A in the
Directions as to certain
procedures to be followed by agencies and ministers in IC reviews
(Directions)
to your Office; and
c. share submissions with OAIC and the applicant in relation to the review
request.
3. I provide the below information and submissions in response to the Notice and to
assist the Commissioner’s Office to progress this review.
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Engagement
4. Our Office contacted the review applicant by email on 15 April 2025 in an attempt
to narrow or resolve the issues in dispute. However, the applicant has refused to
narrow any issues within scope and has indicated they wish to proceed with a full
IC review.
5. I acknowledge that the applicant has raised that they are of the view that our
Office has not engaged in the engagement process in good faith due to the short
time frame given to respond to our Office's engagement email.
6. While I note that there are no specified time frames in the Directions and
Guidelines for respondents to engage with applicants, so long as engagement
occurs prior to the submission deadline, I acknowledge the applicant's is correct
that the engagement occurred close to the due date for these submissions, which
was not ideal.
7. For completeness, our Office sought permission from your Office on 9 April 2025 to
provide confidential submissions on this matter due to the sensitive nature of the
material captured by the request. Engagement with the applicant was delayed
with the intention of concurrently informing them that our Office would be
submitting confidential submissions. Our Office is yet to receive a response, so we
proceeded to engage with the applicant.
8. In the circumstances of this matter, including that:
• the issues raised have been discussed at length in our decision letter of 28
January 2025, and internal review decision letter of 20 February 2025; and
• the applicant has discussed the issues in dispute at length in their email
seeking internal review; and
• no new information was raised in our engagement email that would
necessitate new or lengthy consideration by the applicant.
I consider the engagement was appropriate.
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Documents requested
9. Consistent with the requirements of the Notice, I have provided the following
documents (as listed in Table A of the Directions for access grant decisions where
a practical exemption has been relied upon) to your Office:
a. Original Freedom of Information request (
Attachment A)
b. Document in dispute (
Attachment B)
c. Email chain of consultation with third parties (
Attachment C)
d. FOI-2024-80046 decision Letter (
Attachment D)
e. Email from applicant requesting internal review (
Attachment E)
f. Internal review decision letter (
Attachment F)
g. Engagement with review applicant (
Attachment G)
Scope of Review
10. I note the ‘Notice of Review’ in this matter identifies the scope of the review as
being:
The IC review applicant contests the respondent’s reasons for refusing
access as set out in the decision under review.
11. Our submissions therefore focus on this issue.
12. I wish to emphasise that our Office is limited in its ability to fulsomely respond to
this IC review as, without the ability to provide confidential submissions, our
submissions must be high level with limited details as to not breach our
obligations under the
Privacy Act 1988 (Cth). This is exacerbated by the
applicant engaging through the RighttoKnow platform as any correspondence,
including this submission, will be published online.
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Background
13. In the matter o
f Eli Turner v Commonwealth Ombudsman NSD 1076/2023, Mr
Turner appealed the 31 August 2023 decision of the Ombudsman to not award a
reparation payment under the Defence Abuse Reparation Scheme.
14. On 12 March 2024, Justice Perry of the Federal Court of Australia ordered:
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.
15. Our Office conceded that the decision was affected by jurisdictional error
because the delegate erred in the exercise of their discretion by concluding the
“Office is limited to considering the reported conduct, rather than the impact of
the abuse” and that this error was material.
16. The decision notice which was the subject of the court appeal is the document in
dispute for this IC review.
17. While the court decision and limited explanation of such proceedings was
published, very limited details of the content of the reported conduct or Mr
Turner’s personal information was disclosed for privacy reasons.
Decision to refuse access to documents
18. The Office continues to rely upon the reasons contained within the decision letter
of 28 January 2025 (decision letter) and the Internal Review of this decision
dated 20 February 2025 (IR decision). I now provide further submissions to
support of the exemption claims and decision to refuse the document under s
47F and 47E(d) of the FOI Act.
Refusal of documents in full
19. The Office refused access to one document in full. The decision letter and
internal review decision letter set out the basis for such exemption claims.
Redactions were made on the basis of s 47F and 47E(d) of the FOI Act.
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Section 47F
20. With regards to the application of section 47F to exempt the personal
information of affected third parties and an Ombudsman staff member I rely
broadly upon paragraphs [12]-[24] of the decision letter.
21. I confirm that the following information has been redacted under section 47F:
• full names of third parties;
• place of employment of a third party;
• summary of abuse reported to our Office under the Defence Abuse
Reparation Scheme;
• details of third party's past service history in the Australian Defence Force;
and
• the signature of Ombudsman staff member.
22. I maintain that this material constitutes personal information and disclosure
would be unreasonable. This is particularly so noting the sensitive nature of
reports of abuse.
23. I reiterate that the factors against disclosure outweigh any factors favouring
disclosure. Disclosure would promote the objects of the FOI Act by increasing
scrutiny, discussion or comment around Government decision making.
However, disclosure would prejudice the protection of third parties' right to
privacy and it is likely that harm will occur if the document were to be
disclosed.
24. I wish to emphasise that
the document does not relate to the applicant and the
nature of the document is highly sensitive. Additionally, as the applicant is an
anonymous user of the RighttoKnow website, there is an increased risk of harm
as any disclosure of personal information would be to the world at large.
25. Our Office consulted the third parties whose personal information was captured
by the request and they strongly objected to disclosure of the document. The
third party expressed concerns about their privacy being impeded if the
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document were to be disclosed. Significant weight was given to the consultation
response and objection, especially given the disclosure would result in the third
party's personal information being published online and made easily publicly
accessible.
26. I note the applicant has raised that they believe our Office has failed to address
their criticism about the application of section 47F that they raised in their
internal review request email. In the IR decision, the arguments raised by the
applicant regarding limited information about affected third party being publicly
available is expressly addressed at paragraphs [7]-[12]. Again, our Office is
limited in its response to this IC review as details about this issue are not
appropriate to be discussed in open submissions due to privacy concerns. I
however highlight that the nature of the material and level of specificity is not of
the nature contemplated by the applicant in seeking reviewing. The material is
detailed and specific to the impacted third party.
27. In light of the above, I consider that disclosure of the document would be an
unreasonable disclosure of a third party's personal information, and disclosure
would not be in the public interest.
Section 47E(d)
28. With regards to the application of section 47E(d) to exempt the document as it is
a final decision notice issued by our Office under the Defence Abuse Reparation
Scheme, I rely broadly upon paragraphs [25]-[32] of the decision letter.
29. Our Office receives and assesses reports of al eged abuse and makes
recommendations to the Department of 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 that when they contact the
Defence Force Ombudsman, their personal information will be treated as
confidential and is managed in accordance with the
Privacy Act 1988 (Cth).
30. It is highly likely that if sensitive information about this defence abuse matter
was disclosed it would compromise this trust that the Office wil maintain
confidentiality. This would mean that members of the public would likely be less
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wil ing to make reports of abuse and provide information to the Office, or provide
information as freely and fulsomely as they otherwise would. This would
therefore compromise the Office’s ability to receive and assess claims. I am
satisfied that public detriment could reasonably be expected to arise if the
Ombudsman is compromised in its' ability to obtain information from defence
abuse reportees in future.
31. Receiving reports of abuse and engaging with reportees under the Defence
Abuse Reparation Scheme is a core statutory function of the Office. This function
would be impeded if a precedent was set that our Office is obligated to breach
reportees' privacy under the FOI Scheme.
32. I note that the applicant argues that our Office cannot rely on s 47E(d) as the FOI
Guidelines state at para 6.115 that:
"[w]here disclosure of the documents reveals unlawful activities or
inefficiencies, this element of the conditional exemption will not be met
and the conditional exemption will not apply. This is for reasons including
the irrelevant factors that must not be taken into account in deciding
whether access to the document would, on balance, be contrary to the
public interest."
33. I dispute this claim for the following reasons.
Operations of an agency
34. Our Office is an independent oversight body that helps to resolve complaints,
conduct investigations, audits and inspections and encourage good
administration across the Australian Government and some private sector
industries. Our Office’s ability to perform our functions, including assessing
complaints and making decisions, relies on the relationship of trust and
confidence we foster with members of the public to facilitate the open flow of
oftentimes sensitive and personal information.
35. As stated in our original decision, the internal review decision, and discussed
above, our Office receives and assesses reports of alleged abuse and makes
recommendations to the Department of Defence under the Defence Abuse
Reparation Scheme in Part IIA of the
Ombudsman Act 1976 (Cth). The document
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in issue is a record of a decision in respect of a complaint made under the
Scheme. It includes a statement of reasons for the decision, and sets out the
material facts gathered through the investigative process.
36. The Federal Court found the phrase conduct of the operations of an agency
extends ‘to
the way in which an agency discharges or performs any of its
functions.’
1 (emphasis added). In the context of the document in issue, the
predicted effect may therefore bear on the future conduct of investigations or
assessments of complaints, the process in which we engage with complainants
and other individuals throughout the investigative process, or the preservation of
the confidence and faith parties place in our Office that underlies their
wil ingness to ful y and frankly participate in investigative processes.
37. Out of respect to the complainant’s privacy, we make a general observation that
the assessment of complaints made under the Scheme typically involves a
process of engagement with complainants to receive information of a highly
sensitive nature. Our Office recognises that this can be a deeply traumatic and
difficult process for complainants, and is only possible by upholding the highest
standards of trust and confidence. The information received in this process
forms an integral part of the decision-making process. The nature of decisions
made under the Scheme, such as that depicted by the document in issue, is
such that the decision or recommendation and material facts and evidence are
intertwined. These decisions therefore cannot be viewed in a vacuum, but as the
outcome of an extended process engaged in by our Office in the performance of
our functions under Part IIA of the Ombudsman Act.
Proper and efficient conduct
38. Our Office acknowledges the applicant’s submissions with respect to [6.115] of
the FOI Guidelines. Our Office agrees that the disclosure of a document revealing
unlawful activities or inefficiencies would not bear on the proper and efficient
1 See decision of Davies, Wilcox and Einfeld JJ in
Re Searle Australia Pty Ltd v Public Interest
Advocacy Centre and Department of Community Services and Health [1992]
FCA 241 at [20],
adopting the view of Deputy President Hall in
Re James and Australian National University [1984]
AATA 501 in relation to former s 40 of the FOI Act.
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operations of an agency. In such circumstances, the s 47E(d) conditional
exemption would not be available.
39. However, we reject the applicant’s claims that the 31 August 2023 decision
discloses unlawful activity by reason only of being affected by jurisdictional error,
or that it reveals inefficiencies. Rather, the decision was a good-faith exercise of
delegated powers, containing all the elements of administrative decisions made
by our Office, including references to, and assessment of, information received
from the complainant. The fact the Ombudsman subsequently conceded that
the delegate erred in the exercise of their discretion by misapplying a statutory
test
2 does not mean the decision demonstrates inefficiencies in the Office’s
operations. Moreover, the applicant has not suggested, and there is no basis to
otherwise construe, that the error in the 31 August 2023 decision renders the
ordinary or usual conduct of our Office in receiving, investigating or deciding
complaints under the Scheme unlawful.
40. Notwithstanding the misapplied test, the 31 August 2023 decision remains a
discrete record of the evidence and other information received as a result of our
Office’s legitimate engagement with the complainant, and the findings made as
a result of the investigation into the complaint. The Information Commissioner
and Tribunal have repeatedly accepted that the disclosure of documents
relating to complaints made to investigative bodies could reasonably affect the
future wil ingness of persons to make complaints to that body, and would
therefore have a substantial adverse effect on the proper and efficient conduct
of that investigative body’s operations (see [6.114] of the FOI Guidelines).
41. For the above reasons, I maintain that the document is exempt under s 47E(d),
and disclosure would be contrary to the public interest as it would have an
adverse affect on the proper and efficient operations of the Office by impeding
our ability to obtain sensitive information from complainants in the future due to
a loss of confidence in our Office.
2 See Federal Cour
t order of 12 March 2024.
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Alternative position
42. While not addressed directly in the original or internal review decision, we
consider the decision notice would also likely be exempt, at least in part, under
section 45 of the FOI Act.
43. When complainants provide information to the Defence Force Ombudsman they
are provided notice that any information they provide wil be treated as
confidential and is managed in accordance with the
Privacy Act 1988 (Cth). This
notice is given as part of the reporting process and clearly establishes an
expectation of confidentiality in relation to the handling of material received
from complainants.
44. Relevantly, such material is specifically identified (being personal information
provided by complainants in the context of reporting alleged abuse), is mutually
understood to be confidential in light of the notice included in documentation,
disclosure is threatened in this instance by responding to the FOI request and the
complainant would experience harm as a result of disclosure.
45. In light of this, I consider section 45 of the FOI Act would also be relevant to the
document at issue.
Please do not hesitate to contact is should you require any further information. I
reiterate that the Office would be able to provide further submissions in support of the
decision on a confidential basis, should you consider this would be useful.
Yours sincerely
Laura Mackenzie
Legal Officer
Legal Team
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