Decision LEX 1600.pdf

  Your Ref
Our Ref
LEX 1600

Vanessa Teague
Right to Know

By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Vanessa
Your Freedom of Information request - decision
I refer to your request, received by the Department of Education (department) on 16 June
2025, for access under the Freedom of Information Act 1982 (FOI Act) to the following
document:
“…the Privacy Impact Assessment for My Mind Check. This document is listed on your web
page (https://www.education.gov.au/using-site/privacy) as "Voluntary Mental Health Check
Tool – My Mind Check August 2024" but the actual document is not linked.”
My decision
I am authorised to make decisions under section 23(1) of the FOI Act.
The department holds 1 document (totalling 88 pages) that falls within the scope of your
request.
I have decided to grant you access in part to the document with some of the content
removed.
I have decided that certain small parts of the document that you have requested are exempt
under the FOI Act because they contain:
•  deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C conditional exemption); and

•  business information, the disclosure of which would or could reasonably be
expected to unreasonably affect a third party, the disclosure of which would be
unreasonable and contrary to the public interest (section 47G(1)).

GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.education.gov.au | ABN 12 862 898 150

A Schedule of Documents and the reasons for my decision are set out at Attachment A.
Charge
In accordance with the FOI Act, the department can impose a processing charge for FOI
requests. In this instance, the processing charge would have been relatively small given that
the scope of your request is narrow and captures one document. Accordingly, I have decided
to exercise my discretion not to impose a charge on this occasion.

How we wil send your document
The document is attached.
You can ask for a review of my decision
If you disagree with any part of the decision, you can ask for a review. There are two ways
you can do this. You can ask for an internal review by the department or an external review
by the Australian Information Commissioner.
You can find information about your rights of review under the FOI Act, as well as
information about how to make a complaint at Attachment B.
Further assistance
If you have any questions, please email xxx@xxxxxxxxx.xxx.xx.

Yours sincerely

Jessica
Authorised decision maker
Freedom of Information Team
Department of Education

15 August 2025

REASONS FOR DECISION
What you requested
•  “I request, under the Freedom of Information Act, the Privacy Impact Assessment for My
Mind Check. This document is listed on your web page (https://www.education.gov.au/using-
site/privacy) as "Voluntary Mental Health Check Tool – My Mind Check August 2024" but the
actual document is not linked.”
On 9 July 2025, the department advised you that it would consult with certain third parties
because the document you requested contains information the third parties might
reasonably wish to contend should not be disclosed.
What I took into account
In reaching my decision, I took into account:
•  your request dated 16 June 2025
•  the document that falls within the scope of your request
•  consultation with third parties about the document as it contains information
concerning them
•  consultations with departmental officers about the nature of the document and the
operating environment and functions of the department
•  the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
•  the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain small parts of the document that you requested are exempt
under the FOI Act. My findings of fact and reasons for deciding that exemptions apply to that
document are discussed below.
Section 22 of the FOI Act: access to edited copies with exempt matter deleted

I have decided that the document fal ing within the scope of your request contains exempt
material. In this regard, sections 22(1) and (2) of the FOI Act provide that:

Scope

(1)
This section applies if:
(a) an agency or Minister decides:
(i)    to refuse to give access to an exempt document; or
(ii)  that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for
access; and
(b)  it is possible for the agency or Minister to prepare a copy (an edited copy)
of the document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under
section 11A (access to documents on request); and
(ii)
the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the
edited copy, having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)  it is not apparent (from the request or from consultation with the
applicant) that the applicant would decline access to the edited copy.
Access to edited copy

(2)
The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
The document identified in the Schedule of Documents includes exempt material.
In accordance with section 22 of the FOI Act, I have deleted exempt material where possible
from the pages identified in the Schedule of Documents and have decided to release the
remaining material to you.

Section 47C of the FOI Act – deliberative processes

I have applied the conditional exemption in section 47C(1) of the FOI Act to a small part of
the document.
Subsection 47C(1) of the FOI Act relevantly provides that:
(1)
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in
the course of, or for the purposes of, the deliberative processes involved in the functions
of:

(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth.

As discussed in the FOI Guidelines at paragraphs 6.46 to 6.53, the main requirements of this
conditional exemption are that a document:
•
contains or relates to ‘deliberative matter’ that was prepared for a ‘deliberative
purpose’ (subsection 47C(1))
•
the material is not ‘purely factual’ or non-deliberative (subsection 47C(2)), and
•
it would be ‘contrary to the public interest’ to give access at this time
(subsection 11A(5)).
Paragraph 6.54 of the FOI Guidelines also provides that a deliberative process ‘involves the
exercise of judgement in developing and making a selection from different options’ and goes
on to say that:
‘The action of deliberating, in common understanding, involves the weighing up or evaluation
of the competing arguments or considerations that may have a bearing upon one's course of
action. In short, the deliberative processes involved in the functions of an agency are its
thinking processes – the processes of reflection, for example, upon the wisdom and
expediency of a proposal, a particular decision or a course of action.’
At paragraph 6.62, the FOI Guidelines provide ‘material that is not deliberative matter, where
not already excluded as operational information, purely factual material or a scientific report,
would include:

•  content that is merely descriptive
•  incidental administrative content
•  procedural or day to day content
•  the decision or conclusion reached at the end of the deliberative process
•  matter that was not obtained, prepared or recorded in the course of, or for the
purposes of, a deliberative process.’

One small part of the document is conditionally exempt under this provision, as it contains
deliberations about the implementation of the My Mind Check project and its associated
contractual arrangements. This material was prepared and recorded by departmental
officers in 2024 for the purpose of assessing the project from a privacy perspective as it was
then contemplated. I am satisfied that this material constitutes deliberative material.
The document contains information relating to the programs, policies and functions which
the department and its ministers are responsible. I am satisfied that the deliberative
material in the document was prepared and recorded for the purposes of assessing the
privacy impacts of potential options for the My Mind Check program in 2024.
To the extent that parts of the document are conditionally exempt under section 47C
contain factual material, I consider that the information is intertwined with the deliberative

content such that it cannot reasonably or practically be separated. I am also of the view that
this information forms an integral part of the deliberative content and purpose of the
document.
I have decided that the material identified in the Schedule of Documents is conditionally
exempt under section 47C of the FOI Act. I have discussed the public interest considerations
below under the heading ‘Public interest’.

Section 47G of the FOI Act – business information
I have applied the conditional exemption in section 47G(1)(a) of the FOI Act to small parts of
the document.
Section 47G(1)(a) of the FOI Act provides:
(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 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.

Paragraph 6.181 of the FOI Guidelines relevantly provides:
The operation of the business information conditional 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.

Relevantly, paragraph 6.191 of the FOI Guidelines provides:
…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’
The document includes information about the solution design and the base system on which
the My Mind Check program was built. I consider that this information relates to the
business, commercial or financial affairs of Macquarie University who were engaged by the
department to develop and implement this program, and have objected to the release of
this information.
Paragraph 6.185 of the FOI Guidelines provide:

‘Would or could reasonably be expected’ to have a particular impact demands the application
of an objective test. The test of reasonableness applies not to the claim of harm but to the
objective assessment of the expected adverse effect.
I have considered whether the release of this information could result in an unreasonable
adverse effect on the business affairs of Macquarie University. I have been advised that
smal  parts of the document contain confidential material that if released could compromise
the security of the system and the privacy of the personal and sensitive information it holds.
Additionally, I have also been advised that some parts of the document also include
technical material, that if released could be used by competitors to harm the organisation’s
business affairs.
Applying the test of reasonableness objectively, I consider that the disclosure of this
information would, or could reasonably be expected to, adversely affect the commercial
affairs of the organisation. In particular, competitors could leverage this information to
enhance their own systems, thereby gaining a commercial advantage, which could
undermine the competitive position of the organisation in the market. Furthermore, I
understand that releasing this information could weaken the security of the system and the
safeguards protecting the personal and sensitive information held about students in relation
to this program.
On this basis, I have decided that the information included in the abovementioned
document is exempt under section 47G of the FOI Act. I have deleted the exempt material
and released the remaining material to you in accordance with section 22 of the FOI Act.
I have discussed the public interest considerations below under the heading ‘Public Interest’.
Public interest
Section 11A(5) of the FOI Act provides:
The agency or Minister must give the person access to the document if it is conditional y
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.
When weighing the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
•  promote the objects of the FOI Act
•  inform debate on a matter of public importance being the My Mind Check program
•  promote effective oversight of public expenditure.

I have also considered the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
•  adversely impact the department’s policy development and implementation
processes.
•  adversely affect or harm the interests of relevant organisations.
•  prejudice the security of the system underpinning the My Mind Check Program.
Based on these factors, I have decided that, in this instance, the public interest in disclosing
the information in the document is outweighed by the public interest against disclosure.
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.
Conclusion
In summary, I am satisfied that small parts of the document, as set out in the Schedule of
Documents, are conditional y exempt under section 47C and 47G(1)(a) of the FOI Act.
Furthermore, I have decided that, on balance, it would be contrary to the public interest to
release this information. Accordingly, I have decided not to release small parts of the
document to you.
I have deleted the exempt material and released the remaining material to you in
accordance with section 22 of the FOI Act.

Attachment B
YOUR RIGHTS OF REVIEW
Asking for a formal review of an FOI decision
If you believe the decision is incorrect, the FOI Act gives you the right to apply for a review of
the decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of an FOI
decision by:
•  an internal review officer in the department and/or

•  the Australian Information Commissioner.
There are no fees for applying for a formal review.
Applying for an internal review by an internal review officer
If you apply for internal review, a different decision maker to the decision maker who made
the original decision will review your request. The internal review decision maker will
consider al  aspects of the original decision afresh and decide whether the decision should
change.
An application for internal review must be made in writing within 30 days of receiving this
letter. You can lodge your application by email to xxx@xxxxxxxxx.xxx.xx.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can lodge your application in one of the following ways:
Online:
https://webform.oaic.gov.au/prod?entitytype=ICReview&layoutcode=ICReviewWF

Email:
xxxxx@xxxx.xxx.xx

Post:
Australian Information Commissioner

GPO Box 5218

SYDNEY NSW 2001

Complaints to the Australian Information Commissioner
Australian Information Commissioner
You may complain to the Australian Information Commissioner about action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act.
A complaint to the Australian Information Commissioner must be made in writing and can be
lodged in one of the fol owing ways:
Online:
https://webform.oaic.gov.au/prod?entitytype=Complaint&layoutcode=FOIComplaintWF
Email:
xxxxx@xxxx.xxx.xx

Post:
Australian Information Commissioner

GPO Box 5218

SYDNEY NSW 2001