DEFENCE FOI 735/24/25
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the revised request by CLF (the applicant), dated and received on
19 March 2025 by the Department of Defence (Defence), for access to the following
documents under the
Freedom of Information Act 1982 (Cth) (FOI Act):
…the Individual Indigenous Participant Plans for the contractors listed below,
particularly to how Indigenous Mandatory Minimum requirements where
proposed to be met, as well as any consideration or weighting that was provided
to this in the assessment of tender SON4076897 (AGSV External Vetting Panel)
by assessment committee.
Barrington Corporate Risk Pty Limited (ABN: 54 101 991 584)
Cogent Business Solutions Pty Ltd (ABN: 44 076 633 200)
Connect3i Pty Ltd (ABN: 39 621 200 637)
Ernst & Young (ABN: 75 288 172 749)
Mitchell Personnel Solutions Pty Ltd (ABN: 53 118 343 801)
Omni Executive Pty Ltd (ABN: 31 160 925 413)
Sirras Consultants Pty Ltd (ABN: 68 619 212 234)
Staff Check Pty Limited (ABN: 99 107 014 942).
Background
2.
On 7 March 2025, the applicant submitted a request under the FOI Act to Defence in
the following terms:
… I formally request access to documents relating to the Indigenous
participation commitments and evaluation process for Standing Offer Notice
(SON4076897), which awarded contracts to the following prime contractors:
Barrington Corporate Risk Pty Limited (ABN: 54 101 991 584) Cogent Business
Solutions Pty Ltd (ABN: 44 076 633 200) Connect3i Pty Ltd (ABN: 39 621 200
637) Ernst & Young (ABN: 75 288 172 749) Mitchell Personnel Solutions Pty
Ltd (ABN: 53 118 343 801) Omni Executive Pty Ltd (ABN: 31 160 925 413)
Sirras Consultants Pty Ltd (ABN: 68 619 212 234) Staff Check Pty Limited
(ABN: 99 107 014 942) Requested Documents I seek access to:
All Indigenous Participation Plans submitted by the above-listed prime
contractors as part of their bid for SON4076897, detailing how they proposed to
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meet Indigenous Procurement Policy (IPP) and Mandatory Minimum
Requirements (MMRs).
Documents outlining how the Department of Defence evaluated Indigenous
participation in these bids, including:
Any scoring criteria, weighting, or assessment frameworks used to evaluate
Indigenous engagement.
Any internal assessment reports or scoring matrices relating to the Indigenous
participation component.
Records of communication between the Department of Defence, AGSVA, and the
prime contractors regarding the Indigenous participation component of the
contract.
Any directives, policy guidelines, or memos issued by the Department of Defence
regarding how Indigenous participation would be assessed and enforced post-
award.
I seek this information to assess compliance with Commonwealth procurement
policies and ensure transparency in Indigenous participation commitments.
3.
On 19 March 2025, Defence formally consulted with the applicant in accordance with
section 24AB of the FOI Act. On the same day, the applicant revised the scope of the
request as outlined in paragraph 1.
FOI decision maker
4.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
5.
I have identified nine (9) documents as falling within the scope of the request.
6.
The decision in relation to each document is detailed in the schedule of documents.
Decision
7.
I have decided to:
a. partially release nine (9) documents in accordance with section 22 [access to
edited copies with exempt or irrelevant matter deleted] of the FOI Act on the
grounds that the deleted material is considered exempt under section 47E
[Public interest conditional exemptions – certain operations of agencies] and
47G [Public interest conditional exemptions – business] of the FOI Act; and
b. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
8.
In making my decision, I have had regard to:
a. the terms of the request;
b. the content of the identified documents in issue;
c. relevant provisions of the FOI Act;
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d. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines); and
e. advice from subject matter experts within the Australian Government Security
Vetting Agency (AGSVA).
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
9.
Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of
a document where the agency has decided to refuse access to an exempt document or
that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access.
10.
The documents identified contain exempt material and I am satisfied that it is
reasonably practicable to remove the exempt material and release the documents to
you in an edited form.
Section 47E(d) –Public interest conditional exemptions – certain operations of agencies
11.
Section 47E(d) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
(c) have a substantial adverse effect on the proper and efficient conduct of
the operations of the agency.
12.
The Guidelines, at paragraph 6.115, provide that:
The predicted effect must bear on the agency’s ‘proper and efficient’
operations, that is, the agency is undertaking its operations in an expected
manner.
13.
The Guidelines provide, at paragraph 6.112, that I should consider whether disclosure
of the information ‘would, or could reasonably be expected to lead to a change in the
agency’s processes that would enable those processes to be more efficient.’ The
exempt information, if released would provide insight into the confidential processes
of the Australian Government Security Vetting Agency’s External Security Vetting
Service, potentially allowing these processes to be compromised. Therefore, I do not
expect the release of this material will lead to a change in the Defence’s processes that
would enable those processes to be more efficient.
14.
Accordingly, I am satisfied that the material identified within the documents is
conditionally exempt under section 47E(d) of the FOI Act.
Section 47G – Public interest conditional exemptions – business
15.
Section 47G(1)(a) of the FOI Act states:
(1) A document is conditionally exempt if its disclosure under this Act
would disclose information concerning a person in respect of his or her
business or professional affairs or concerning the business, commercial or
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financial affairs of an organisation or undertaking, in a case in which the
disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that
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.
16.
I note that the use of the word ‘could’ in this provision requires only reasonable
consideration of the possibility that disclosure may cause the consequences specified.
17.
The Guidelines explain, at paragraph 6.185:
The test of reasonableness applies not to the claim of harm but to the
objective assessment of the expected adverse effect….These considerations
require a weighing of a public interest against a private interest -
preserving the profitability of a business. However, at this stage it bears
only on the threshold question of whether the disclosure would be
unreasonable.
18.
The Guidelines also state, at paragraph 6.181:
The operation of the business information exemption depends on the effect
of disclosure rather than the precise nature of the information itself.
Nevertheless, the information in question must have some relevance to a
person in respect of his or her business or professional affairs or to the
business, commercial or financial affairs of an organisation or
undertaking (s 47G(1)(a)).
19.
The Guidelines go on to provide, at paragraph 6.191, ‘[t]he 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’.
20.
The documents contain sensitive information about the business affairs of third
parties. Disclosure of this information would, or could reasonably be expected to
unreasonably affect the third party’s business affairs by providing a competitive
advantage to competitors. This information could be used by competitors to assess the
third parties’ services and commercial arrangements (including by other open source
information), which would, in turn, undermine the third parties’ further ability to
secure contracts and would therefore impact the organisations ‘money making affairs’.
21.
Accordingly, I am satisfied that the material identified within the documents is
conditionally exempt under section 47G(1)(a) of the FOI Act.
Public interest considerations - section 47E and 47G
22.
Section 11A(5) of the FOI Act states:
The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances)
access to the document at that time would, on balance, be contrary to the
public interest.
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23.
I have considered the factors favouring disclosure as set out in section 11B(3) [factors
favouring access] of the FOI Act. The relevant factors being whether access to the
document would:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
24.
In my view, disclosure of this information would not increase public participation in
the Defence process (section 3(2)(a) of the FOI Act), nor would it increase scrutiny or
discussion of Defence activities (section 3(2)(b) of the FOI Act).
25.
Paragraph 6.233 of the Guidelines specifies a non-exhaustive list of public interest
factors against disclosure. The factors I find particularly relevant to this request are
that release of this information could reasonably be expected to prejudice:
an agency’s ability to obtain similar information in the future; and
the management function of an agency;
26.
I have not taken any of the factors listed in section 11B(4) [irrelevant factors] of the
FOI Act into account when making this decision.
27.
I am satisfied, based on the above particulars, the public interest factors against
disclosure outweigh the factors for disclosure, and that, on balance, it is against the
public interest to release the information to you. Accordingly, I find that the
information is exempt under section 47E and 47G of the FOI Act.
simonbu Digitally signed by
simonbuckley
ckley
Date: 2025.05.06
11:09:43 +10'00'
Simon Buckley
Accredited Decision Maker
Security Policy and Services
Department of Defence
