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Attachment C: Statement of Reasons
FOI/2425/079
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.
Section 47D - financial or property interests of the Commonwealth
4. Section 47D of the FOI Act provides that a document is conditionally exempt if its disclosure would have a
substantial adverse effect on the financial or property interests of the Commonwealth or of an agency.
5. Paragraph 6.80 of the FOI Guidelines provides that the ‘financial or property interests of the Commonwealth
or an agency’ may relate to assets, expenditure or revenue generating activities.
6. For section 47D of the FOI Act to apply, there is a requirement that there would be a ‘substantial adverse
effect’ on the financial or property interests of the Commonwealth or an agency.
7. The FOI Guidelines provide [at 6.18 and 6.82]:
6.18 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently serious or
significant to cause concern to a properly concerned reasonable person’. The word ‘substantial’, in the
context of substantial loss or damage has been interpreted as including ‘loss or damage that is, in the
circumstances, real or of substance and not insubstantial or nominal’.
6.82 A substantial adverse effect may be indirect. For example, where disclosure of documents would
provide the criteria by which an agency is to assess tenders, the agency’s financial interest in seeking to
obtain the best value for money through a competitive tendering process may be compromised.
8. You have requested access to documents that contain information relating to the Theory of Change (ToC),
Program Logic and Outcomes Framework for the new Remote Australia Employment Service (RAES). A
document pertaining to the ToC for the RAES (formerly the New Remote Employment Services Program
(NRES)) was found to be in scope of your request.
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NIAA | Freedom of Information
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9. I am satisfied that disclosure of this document could reasonably be expected to have a substantial adverse
effect on the financial interests of the Agency. The NIAA is currently undertaking an approach to market
process as part of the procurement of services for the RAES Monitoring, Evaluation and Learning work related
to the ToC. Releasing the ToC at this stage would provide an unfair advantage to potential suppliers and
would enable commercial entities to position their response to the Request for Quote submissions to their
own financial and competitive advantage. If this were to occur, it would reasonably be expected to
compromise the Agency’s financial interests in seeking to obtain the best value for money through the
competitive procurement process. For this reason, I have decided that this document is conditionally exempt
from disclosure under section 47D of the FOI Act. Where a document is found to be conditionally exempt, the
Agency must give access to that document unless access to the document at this time would, on balance, be
contrary to the public interest.
Public interest
10. Under the FOI Act, access to conditionally exempt documents must generally be given unless doing so would
be contrary to the public interest. In making my decision, I have considered the factors mentioned in
paragraphs 8 to 9 of this document.
11. My consideration of the public interest test regarding the application of section 47D of the FOI Act follows:
Factors in favour of disclosure
12. Of the factors favouring disclosure, I consider the release of the conditionally exempt material at this time:
• would promote the general public interest in accessing documents as expressed in sections 3 and 11 of
the FOI Act, including through enhanced scrutiny of the operations of a government agency, and
• would promote the public interest in promoting government accountability and transparency.
Factors against disclosure
13. Of the factors against disclosure, I consider the release of the conditionally exempt material at this time:
• would compromise the Agency’s financial interest in seeking to obtain the best value for money through a
competitive tendering process for contracts. Any impediment to the ability of the Agency to obtain best
value for money is against the public interest.
• would interfere with the procurement of RAES MEL services, and delay delivery and implementation of
required MEL activities to inform RAES program improvements, and broader employment service policy
setting and reform.
• would not create any tangible benefit to the public.
14. 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.
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Attachment C: Statement of Reasons
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Operations of an agency (section 47E(d))
15. Section 47E(d) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably
be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
16. Section 47E(d) Paragraph 6.84 of the FOI Guidelines states that section 47E conditionally exempts a document
where disclosure would, or could reasonably be expected to, prejudice or have a substantial adverse effect on
certain identified agency operations.
17. Examples of agency operations provided in paragraph 6.113 of the FOI Guidelines indicate that use of 47E(d)
may be appropriate where disclosure of the information would:
• result in the need to make substantial changes to procedures to avoid jeopardising the
effectiveness or methods and procedures used by the agency
• prejudice of the ability of an agency to perform its statutory, regulatory or public safety functions.
18. Paragraph 6.112 of the FOI Guidelines states that an agency’s operations may not be substantially adversely
affected if the disclosure 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.
19. Paragraph 6.115 of the FOI Guidelines state that the predicted effect of disclosure must bear on the Agency’s
‘proper and efficient’ operations, that is, the Agency is undertaking its expected activities in an expected
manner. Where 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.
20. You have requested access to a document that contains information relating to the Theory of Change (ToC),
Program Logic and Outcomes Framework for the new RAES (formerly the New Remote Employment Services
Program (NRES)).
21. I am satisfied that the disclosure of this document would raise probity concerns in the procurement of
services for the RAES Monitoring, Evaluation and Learning work related to the ToC which would, or could
reasonably be expected to, have a substantial and an unreasonable effect on the Agency’s proper and
efficient operations.
22. Disclosure of the document at this time would require the NIAA to make substantial changes to procurement
procedures for the RAES Monitoring, Evaluation and Learning service to ensure fairness and accountability
and avoid jeopardising the effectiveness of procurement methods and procedures used by the agency.
23. For this reason, I have decided that this document is conditionally exempt from disclosure under section
47E(d) of the FOI Act. Where a document is found to be conditionally exempt, the Agency must give access to
that document unless access to the document at this time would, on balance, be contrary to the public
interest.
Public interest
24. Under the FOI Act, access to conditionally exempt documents must generally be given unless doing so would
be contrary to the public interest. In making my decision, I have considered the factors mentioned in
paragraphs 21 to 23 of this document.
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Attachment C: Statement of Reasons
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25. My consideration of the public interest test regarding the application of section 47E(d) of the FOI Act follows:
Factors in favour of disclosure
26. 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 through enhanced scrutiny of the operations of a government agency, and
• would promote the public interest in promoting government accountability and transparency.
Factors against disclosure
27. Of the factors against disclosure, I consider the release of the conditionally exempt material:
• could reasonably be expected to prejudice the effectiveness of RAES MEL tender evaluation
procedures. Any impediment to the ability of the Agency to conduct robust, accurate, fair and
impartial evaluations is against the public interest.
• could reasonably be expected to prejudice the competitive commercial activities of the Agency,
including its ability to enter into contracts that provide best value for money. Any impediment to the
ability of the Agency to achieve best value for money is against the public interest.
• that disclosure would not create any tangible benefit to the public.
28. 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))
29. 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.
30. I am satisfied that the documents contain information that does not relate to RAES and is irrelevant to your
request. This information has been redacted under section 22 of the FOI Act.
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Attachment C: Statement of Reasons
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