OFFICIAL
Attachment C: Statement of Reasons
FOI/2425/057
1. This attachment, together with the
Decision Notice and
Attachment B – Schedule of Documents, provides
the reasons I have decided not to disclose certain material to you in response to your request for documents
under the
Freedom of Information Act 1982 (FOI Act).
2.
Attachment B – Schedule of Documents provides a table with the description of documents, the decision
with respect to each document and a reference to the relevant provision that has been relied upon to exempt
the document from release. My considerations under the relevant provisions column are discussed below.
Document searches
3. I have consulted with the relevant line areas and reviewed the record of the various search and retrieval
efforts. I am satisfied that a reasonable search has been undertaken in response to your request.
Commercial y valuable information (section 47(1)(b))
4. Section 47 of the FOI Act provides that a document is an exempt document if its disclosure would disclose
trade secrets or any other information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed.
5. As noted in the schedule of documents (Attachment B), I have refused access to parts of documents on the
basis that they are exempt under section 47(1)(b) of the FOI Act. For the exemption to apply, I need to be
satisfied that:
• the document contains information that has a commercial value to a third party, and
• the commercial value of the information would be, or could reasonably be expected to be, destroyed or
diminished.
6. A third party was consulted during the course of processing the FOI request. I have considered submissions
made by the third party in which they contend some information in the documents is commercially valuable
information, and the commercial value would be diminished or destroyed if the information were released.,
including that competitors would be able to gain a commercial advantage over the third party when
competing on similar projects in the future.
OFFICIAL
NIAA | Freedom of Information
OFFICIAL
OFFICIAL
Information that has a commercial value
7. The requirement that information have a “commercial value” does not mean that the information must be
capable of being sold or exchanged, but simply that it has a value capable of being described as “commercial
in character”.
8. Commercial value may relate, for example, to the profitability or viability of a continuing business operation
or commercial activity in which an agency or business is involved in.
9. The documents fal ing within the scope of your request include:
• a third party’s response to a Request for Quote issued by the NIAA to develop a Monitoring, Evaluation
and Learning Framework for the Remote Jobs and Economic Development program
• the contract signed with the third party, and
• project plans.
10. The material to which this exemption has been applied includes the third party’s intellectual property,
including methodology and lines of enquiry, proposed evaluation and analysis, and commercial pricing.
Commercial value could be destroyed or diminished
11. The second requirement of s 47(1)(b) is that the commercial value could reasonably be expected to be
destroyed or diminished if the information were disclosed. The value of information will be diminished, for
example, where it reduces a competitive edge otherwise enjoyed by a person.
12. Paragraphs 5.231 - 5.236 of the Guidelines issued by the Office of the Australian Information Commissioner
(the FOI Guidelines) provide a number of factors which may assist in deciding whether information has a
commercial value. Having regard to these factors, I am satisfied that the information that has been redacted
within the documents is commercially valuable information. Further, I am satisfied that the information:
• is relevant to the current and ongoing commercial operations of the third party
• is not publicly available, and is only known by the third party, limited people within their organisation and
the NIAA, and
• if disclosed, could reasonably be expected to:
o reveal the third party’s costing and pricing structure, which competitors could use to undercut
their cost when competing for future work (without having had incurred the resource cost to
develop the unique approach)
o allow for competitors to gain insight into the methodology and processes of the third party,
emulating the approach and services in the future, providing them at a lower price point,
damaging the commercial viability of the services provided, and
o provide potential advantage to other competitors (and corresponding disadvantage to the third
party), ultimately causing detriment to the commercial affairs and competitive interests of the
third party.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
2
OFFICIAL
OFFICIAL
13. Having regard to the above factors, I am satisfied that the exemption in section 47(1)(b) of the FOI Act applies
to parts of documents 2 – 5 and they are exempt from release in part under section 47(1)(b) of the FOI Act.
Personal information (section 47F)
14. A document is conditional y exempt under section 47F of the FOI Act if its disclosure would involve the
unreasonable disclosure of personal information about any person.
Personal information
15. ‘Personal information’ is information or an opinion about an identified person or a person who can be easily
identified, whether that information or opinion is true or not.
16. Paragraph 6.125 of the FOI Guidelines further provides:
‘Personal information can include a person's name, address, telephone number, date of birth, medical records,
bank account details, taxation information and signature.’
17. I am satisfied that the Documents contain personal information of other people. That is, names and personal
contact details (email addresses and phone numbers) of staff of a third party, signatures, images, details
relating to Aboriginal or Torres Strait Islander heritage, and prior work history.
Where disclosure is ‘unreasonable’
18. In determining whether the disclosure of personal information would be unreasonable, I have had regard to
the matters under section 47F(2) of the FOI Act, specifical y:
• the extent to which the information is well known
• whether the person to whom the information relates is known to be associated with the matters dealt
with in the documents
• the availability of the information from publicly accessible sources, and
• any other matters that I consider relevant, specifically, any objections raised by third parties who were
consulted on the release of their personal information.
19. In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.133 of the FOI Guidelines
provides:
‘The personal privacy conditional exemption is designed to prevent the unreasonable invasion of third parties’
privacy. The test of ‘unreasonableness’ implies a need to balance the public interest in disclosure of
government-held information and the private interest in the privacy of individuals.’
20. The Administrative Appeals Tribunal (AAT) further noted in
Re Chandra and the Minister of Immigration and
Ethnic Affairs [1984] AATA 437 (
Re Chandra) that consideration is to be given to:
‘all the circumstances, including the nature of the information that would be disclosed, the circumstances in
which the information was obtained, the likelihood of the information being information that the person
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
3
OFFICIAL
OFFICIAL
concerned would not wish to have disclosed without consent, and whether the information has any current
relevance.’
21. Paragraphs 6.137-6.138 of the FOI Guidelines and the decision of
FG and National Archives of Australia [2015]
AICmr 26 (
FG and NAA) set out key factors to consider when determining whether disclosure would be
unreasonable. In the present matter, I consider that disclosure would be unreasonable for the fol owing
reasons:
• the document does not contain any of your personal information
• there is no consent from the individuals for the release of their personal information
• the information is private and not available in full or in part from publicly-accessible sources
• the identity of the individuals’ concerned is readily apparent and they would be easily identifiable
• disclosure of the information, contrary to objections made by their employer, is likely to cause detriment
to the identified individuals
• no public purpose would be achieved through release, and
• release of the personal information would not advance the public interest in government transparency
and integrity.
22. I have also considered that the personal information in the documents goes beyond the mere mention of
individuals’ names and contact details, and includes photographs, signatures and information regarding
Aboriginal and Torres Strait Islander heritage. This information is considered ‘sensitive information’ by the
Privacy Act 1988 and is afforded a higher level of protection when being col ected or handled. I consider there
are strong public policy considerations affording protection to such information, and disclosure of sensitive
personal information, without the consent of the individuals, would be unreasonable.
23. Also relevant to the current matter is the circumstances in which NIAA has col ected and used the personal
information. In this case, the NIAA has obtained and used the personal information during the course of
entering into a contract with a third party, and details of employees of the third party were provided as part
of the response. The personal information of these individuals are only included in the documents by
relevance to their job.
24. The NIAA consulted with a third party who is the employer of the individuals who were named in the
documents. This third party objected to the release of information relating to its employees and
subcontractors.
25. If the personal information of the identified individuals were to be disclosed without the consent of their
employer and available for download and dissemination from the NIAA’s disclosure log, this is likely to cause
the identified individuals distress and anxiety.
26. I also consider that the personal information lends nothing to the public’s understanding of the project, or to
the documents themselves. The personal information has no value to the public debate and any addition to
the public interest is negligible.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
4
OFFICIAL
OFFICIAL
27. Taking into account the factors outlined above under the FOI Act, the FOI Guidelines, the cases of
FG and NAA
and
Re Chandra and the third party submissions, I consider the disclosure of the documents would be an
unreasonable disclosure of personal information. For these reasons, I am satisfied that the material is
conditional y exempt under section 47F of the FOI Act.
28. As I have found that the relevant material is conditionally exempt, I am required to consider whether it would
be contrary to the public interest to grant access to the conditionally exempt material at this time.
Public interest
29. Under the FOI Act, access to conditional y exempt documents must general y be given unless doing so would
be contrary to the public interest.
30. Paragraph 6.224 of the FOI Guidelines provides that the public interest is considered to be:
• something that is of
serious concern or benefit to the public, not merely of individual interest
• not something of interest to the public, but i
n the interest of the public
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests
• necessarily broad and non-specific, and
• related to matters of
common concern or relevant to all members of the public, or a substantial section of
the public.
31. In making my decision, I have also considered the factors mentioned in paragraphs 21 to 26 of this document.
32. My consideration of the public interest test regarding the application of section 47F of the FOI Act fol ows:
Factors in favour of disclosure
33. Of the factors favouring disclosure, I consider the release of the conditionally exempt material:
• would promote the general public interest in accessing documents as expressed in sections 3 and 11 of
the FOI Act, including by providing access to background or contextual information that informed a
government decision.
34. However, having regard to the other factors outlined in section 11B(3) of the FOI Act, I do not consider that
the disclosure of the personal information in the present circumstances would inform debate on a matter of
public importance, promote effective oversight of public expenditure, increase public participation in
Government processes, increase scrutiny, discussion, comment and review of the Government’s activities, or
allow you to access your personal information.
35. Ultimately, I do not consider that disclosure of the personal information (noting it is limited), is something
that is of serious concern or benefit to the public. Given the volume of material released to you, I do not
consider this is a situation where the disclosure of personal information would raise, or answer, critical
questions about the Remote Jobs and Economic Development program, and disclosure would have no
demonstratable benefit to the public good.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
5
OFFICIAL
OFFICIAL
Factors against disclosure
36. Of the factors against disclosure, I consider the release of the conditionally exempt material:
• could reasonably be expected to prejudice the protection of an individual’s right to privacy
• adversely affect or ham the interests of an individual or group of individuals, specifically the individuals
listed in the document, and
• harm the business interests of a third party by compromising the wellbeing of their staff.
37. On balance, I have decided in this instance the factors against disclosure outweigh those favouring disclosure
and that disclosure of the conditionally exempt material would be contrary to the public interest.
38. I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act in making
this decision.
Business information (section 47G)
39. Section 47G conditional y exempts documents where release of the document would disclose information
concerning a person in respect of their business or professional affairs, or concerning the business,
commercial or financial affairs of an organisation or undertaking (business information), where the disclosure
of the information:
• would, or could reasonably be expected to, unreasonably affect the person adversely in respect of his or
her lawful business or professional affairs or that organisation or undertaking in respect of its lawful
business, commercial or financial affairs, or
• could reasonably be expected to prejudice the future supply of information to the Commonwealth or an
agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency.
40. Paragraph 6.191 of the FOI Guidelines provides that the term ‘business affairs’ has been interpreted to mean
‘the totality of the money-making affairs of an organisation or undertaking as distinct from its private or
internal affairs’.
41. I am satisfied that the documents contain information concerning a third party and their business affairs,
specifically matters relating to the third party’s clients and previous projects.
42. In this case, the NIAA was provided the information in the course of considering a response for a Request for
Quotation. This information is not publicly available, and there was no expectation that such information
would be made publicly available by the NIAA.
43. The third party asserted that disclosure of information relating to their clients and project experience would
unreasonably and adversely affect their business affairs. I am satisfied disclosure of this information would
reveal information about the clients and projects of the third party and their approach to work. Disclosure of
this would allow for competitors to duplicate their approach, ultimately undermining the third party’s
competitive position.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
6
OFFICIAL
OFFICIAL
44. After consultation with the affected third party, I am satisfied that release of this material could unreasonably
and adversely affect the capacity of the third party to conduct their affairs freely.
45. For these reasons, I am satisfied that the material is conditional y exempt under section 47G(1)(a) of the FOI
Act.
46. As I have found that the relevant material is conditionally exempt, I am required to consider whether it would
be contrary to the public interest to grant access to the conditionally exempt material at this time.
Public interest
47. Section 11A(5) of the FOI Act provides that, if a document is conditional y exempt, it must be disclosed ‘unless
(in the circumstances) access to the document at that time would, on balance, be contrary to the public
interest’.
48. Paragraph 6.27 of the FOI Guidelines explains:
“To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude
that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of
withholding the information. The decision maker must analyse, in each case, where on balance the public
interest lies based on the particular facts of the matter at the time the decision is made.”
49. In making my decision, I have considered the factors favouring access set out in section 11B(3) of the FOI Act.
50. I have also had regard to the FOI Guidelines at paragraphs 6.231 and 6.233, which include a non-exhaustive
list of public interest factors favouring disclosure and public interest factors that weigh against disclosure.
51. My consideration of the public interest test regarding the application of section 47G of the FOI Act follows:
Factors in favour of disclosure
52. Of the factors favouring disclosure, I consider the release of the conditionally exempt material would:
• would promote the general public interest in accessing documents as expressed in sections 3 and 11 of
the FOI Act, including by providing access to background or contextual information that informed a
government decision to engage a business.
53. However, having regard to the other factors outlined in section 11B(3) of the FOI Act, I do not consider that
the disclosure of the personal information in the present circumstances would inform debate on a matter of
public importance, promote effective oversight of public expenditure, increase public participation in
Government processes, increase scrutiny, discussion, comment and review of the Government’s activities, or
allow you to access your personal information.
54. Noting the material to which section 47G has been applied is limited, I do not consider that disclosure of this
would material y promote the objects of the FOI Act. Noting the limited nature of the material, I do not
consider this is material which is of serious concern or benefit to the public, nor is this a situation where
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
7
OFFICIAL
OFFICIAL
disclosure of this information would raise, or answer, critical questions about the services provided by the
third party to the NIAA in this instance. As such, I consider the factors favouring disclosure are limited.
Factors against disclosure
55. Of the factors against disclosure, I consider the release of the conditionally exempt material:
• could reasonably be expected to prejudice the business activities of the third party, including by
threatening the preservation of the market position of the third party,
• could reasonably be expected to prejudice the Australian Government’s ability to obtain contracted
services in the future, if future providers were to feel that the Government would disclose information
relating to their business affairs without their consent.
56. On balance, I have decided that the factors against disclosure outweigh those favouring disclosure and that
disclosure of the conditionally exempt material would be contrary to the public interest.
Irrelevant material (section 22(1))
57. Section 22 of the FOI Act provides that an agency can give access to an edited document, modified by
deletions to ensure the edited copy does not disclose any information that would reasonably be regarded as
irrelevant to the request for access.
58. On 24 February 2025, you were advised of the NIAA’s policy to treat the names and contact information of
Commonwealth staff not in the Senior Executive Service (SES), such as APS officers, and direct numbers and
signatures or all Commonwealth officers including SES, as irrelevant to a request. On 25 February 2025, you
agreed to the exclusion of this information as irrelevant to your request. I am satisfied that this information is
irrelevant and may be redacted from the documents under section 22(1) of the FOI Act.
59. Further, as advised to you on 24 February 2025, duplicate documents have been excluded from the
documents released to you.
Publication (section 11C)
60. Where an applicant is provided access to a document, section 11C of the FOI Act requires the NIAA to publish
the document to members of the general public within ten (10) business days of providing the applicant with
access to the document.
61. Documents are published on NIAA Disclosure Log a
t https://www.niaa.gov.au/foi/agency-foi-disclosure-logs.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
8
OFFICIAL
Document Outline
