Attachment B – Reasons – Freedom of Information
Request No. LEX9198
Authority
As a Senior Government Lawyer in the Legal and Property Branch, I am an authorised decision-maker
under section 23 of the FOI Act.
Retrieval process To identify documents for your request, I arranged for relevant staff likely to be able identify documents
to undertake a comprehensive search of the relevant electronic holdings used by the AEC.
Relevant Documents
With regard to the Relevant Documents identified in At achment A, I have decided:
Access in full
a) to grant access in full to Document Nos. 1-3, 5-8, 10-15, 17, 18, 20-28, 30, 31, 33-35, 37-41,
43-46, 48, 51, and 53.
Edited copies
b) to grant access to an edited copy of the following documents from which exempt matter and
irrelevant information has been deleted under section 22 of the FOI Act:
i. 4, 9, 16, 19, 29, 32, 36, 42, 47, 49, 50, 52, and 54.
Refuse access
c) to refuse access to parts of Document Nos. 4, 9, 16, 19, 29, 32, 36, 42, 52, and 54 as providing
access would be contrary to the public interest.
Material taken into account I have taken the following material into account in making my decision:
a) the content of the documents that fall within the scope of your FOI Request;
b) the FOI Act, specifically sections 22 and 47E(d);
c) the guidelines
(‘FOI Guidelines’) issued by the Australian Information Commissioner under
section 93A of the FOI Act;
d) t
he FOI Guidance Notes, July 2011 issued by the Department of Prime Minister and Cabinet;
and
e) the
Privacy Act 1988.
Detailed Reasons
Attachment A indicates each Relevant Document to which access is refused or access is granted. My
reasons for refusing or granting access are given below.
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Exemptions
Findings
Attachment A identifies the documents to which I consider s 47E(d) applies (“The Exempt
Documents”).
Consideration
Section 47E(d) of the FOI Act provides:
47E(d) Public interest conditional exemptions--certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be expected
to, do any of the fol owing:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The Exempt Documents contain internal AEC emails discussing daily planning and logistics for the
conduct of the count.
I consider that the disclosure of these documents would have a substantial and adverse effect on the
proper and efficient conduct of the AEC.
In making my decision, I had regard to:
(a) the extent to which the information is well known;
(b) the availability of the information from publicly accessible sources; and
(c)
Part 6: Conditional exemptions | OAIC of the FOI Guidelines, specifically paragraphs [6.112] –
[6.115].
To conduct federal elections in accordance with the
Commonwealth Electoral Act 1918, it is crucial
that AEC staff are able to internally discuss the logistics and planning of the count, including staffing
and scrutineer matters.
I consider that the release of The Exempt Documents would pose a real and substantial risk to the
AEC’s ability to conduct federal elections in accordance with the legislation.
Initial outcome
Accordingly, I am satisfied that The Exempt Documents are conditionally exempt under section 47E(d)
of the FOI Act.
Weighing of public interest factors Under section 11A(5) of the FOI Act, the AEC (as an agency) must provide you access to the
documents if they are conditionally exempt at a particular time unless (in the circumstances) access to
the documents at that time would, on balance, be contrary to the public interest.
My weighing of public interest factors follows.
(a) I considered the following factors favouring disclosure under section 11B(3) of the FOI Act:
• access to the document may promote the objects of the FOI Act (including all the matters
set out in sections 3 and 3A), including to increase public awareness of the processes
involved with the daily planning of the count.
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• disclosure may inform debate on a matter of public importance.
(b) I considered the following factors that mitigate against disclosure under section 11B(3) of the
FOI Act:
• disclosure of certain operations of the agency under section 47E(d) could reasonably be
expected to prejudice the AEC and its counting/distribution of preferences procedures by
deterring staff from discussing relevant plans and logistics with one another.
• the information contained in The Exempt Documents is not publicly available.
In accordance with section 11B(4) of the FOI Act, I excluded from my consideration the following
matters:
• access to the documents could embarrass or cause a loss of confidence in the
Commonwealth Government;
• access to the documents could result in a person misinterpreting or misunderstanding the
documents;
• the author of the documents was or is of high seniority in the agency to which the request
for access to the document was made; and
• access to the documents could result in confusion or unnecessary debate.
In considering the weighing of public interest factors, I had regard to the FOI Guidelines at
paragraphs 6.222 – 6.239.
In my view, the factors against disclosure of the documents outweigh the factors in favour of
disclosure. Based on these factors, I have decided that the public interest in disclosing The Exempt
Documents is outweighed by the public interest against disclosure.
Final Outcome Accordingly, I am satisfied that The Exempt Documents you have requested are conditionally exempt
under section 47E(d) of the FOI Act and, because disclosure would be contrary to the public interest,
that the documents should be treated as exempt from disclosure under the FOI Act.
Preparation of edited copy
In accordance with section 22 of the FOI Act, I considered whether it is possible and practicable to
prepare an edited copy of each of Document Nos. 4, 9, 16, 19, 29, 32, 36, 42, 47, 49, 50, 52, and 54
from which exempt and irrelevant material is redacted.
Findings
I found that:
(a) It is possible to prepare an edited copy of each of Document Nos. 4, 9, 16, 19, 29, 32, 36, 42,
47, 49, 50, 52, and 54 modified by deletions, ensuring that:
(i)
access to each edited copy would be required to be given under section 11A
(access to documents on request) of the FOI Act; and
(ii) each edited copy would not disclose any information that would reasonably be
regarded as irrelevant to the FOI Request;
(b) it is reasonably practicable for the AEC to prepare each edited copy, having regard to:
(i)
the nature and extent of the modifications; and
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(ii) the resources available to modify each document; and
(c) it is not apparent that you would decline access to each edited copy.
I had regard to section 22 of the FOI Act and paragraphs 3.95–3.100 of the FOI Guidelines.
Outcome
I concluded that it is both possible and practicable to prepare an edited copy of each of Document Nos.
4, 9, 16, 19, 29, 32, 36, 42, 47, 49, 50, 52, and 54 from which exempt and irrelevant matter is
redacted.
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Document Outline
