FOI 300184 Notice of decision.pdf

Our ref: FOI 300184


Benedict

By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Benedict,

Freedom of Information Act 1982 (Cth) – Notice of Decision

I refer to your 23 September 2025 request, to the Department of Industry, Science and Resources
(the department), to seek access under the Freedom of Information Act 1982 (Cth) (FOI Act) to:

‘A copy of ministerial submission MS25-000542. Please also provide everything that was returned
from the relevant minister in response to MS25-000542.’

Background

On 15 October 2025 you agreed to a 30-day extension under section 15AA of the FOI Act for the
processing of your FOI request.

On 17 November 2025 you were notified that consultation with a third party was required regarding
release of the information. Under section 15(6) of the FOI Act, the statutory timeframe for
processing your FOI request was extended by 30 days.

Decision

I am an authorised decision maker under subsection 23(1) of the FOI Act.

I am satisfied all reasonable searches have been undertaken for documents, and 3 documents have
been identified as relevant to your request. These documents are described in the Schedule of
Documents at Attachment C.

I have decided to:
•  grant access to 2 documents in part, and
•  refuse access to one document.

I have found that the requested documents contain material which is exempt under:
•  section 42 of the FOI Act, as the information is of such a nature that it would be privileged
from production in legal proceedings on the grounds of legal professional privilege,
•  section 45 of the FOI Act, as the documents contain material obtained by the department or
its contractors in confidence,
•  section 47E(d) of the FOI Act, as disclosure would have a substantial adverse effect on the
proper and efficient conduct of the operations of the department,
•  section 47F of the FOI Act, as disclosure of the information would be an unreasonable
disclosure of an individual’s personal information, and
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•  section 47G of the FOI Act, as disclosure of the information would be an unreasonable
disclosure of an organisation’s business information.

The reasons for my decision are set out in Attachment A.

Review Rights

If you are dissatisfied with this decision, your review rights are set out in Attachment B.

Yours sincerely

Mary Jeffries
General Manager
IGP & CRC Policy Branch
18 December 2025

Enclosures
Attachment A - Statement of Reasons
Attachment B - Review Rights
Attachment C - Schedule of Documents

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Attachment A
Statement of Reasons (FOI 300184)

1.  Evidence/Material on which my findings were based

1.1
In reaching my decision, I relied on the following information and documentary evidence:
•  the FOI Act,
•  the documents subject to the request,
•  your correspondence setting out the particulars of your request,
•  advice from departmental officers as to the nature of the documents,
•  consultation with third parties as to the nature of the documents, and
•  the Guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines).

2.  Section 42 – Legal Professional Privilege

2.1
Section 42 of the FOI Act provides that a document is exempt from disclosure if it is of such a
nature that it would be privileged from production in legal proceedings on the ground of legal
professional privilege.

2.2
At common law, determining whether a communication is privileged requires a consideration
of whether:
•  there is a legal adviser-client relationship,
•  the communication was for the dominant purpose of giving or receiving legal advice,
or for use in connection with actual or anticipated litigation,
•  the advice given is independent, and
•  the advice given is confidential.

2.3
Documents 1 and 2 contain summaries of claims under the Scheme for Compensation for
Detriment caused by Defective Administration. I am satisfied that:
•  there was an adviser-client relationship in existence when the documents were
drafted,
•  the communications within the document was for the purpose of litigating actual or
anticipated legal proceedings,
•  the advice was provided by an independent legal advisor, and
•  the advice is confidential between the advisor and client.

2.4
Therefore, I am satisfied that the material is of such a nature that it is exempt from disclosure
under section 42 of the FOI Act.

3.  Section 45 – Documents containing material obtained in confidence

3.1
Section 45 of the FOI Act provides that a document is exempt from release under this Act if
its disclosure would found an action for breach of confidence.

3.2    Section 5.159 of the FOI Guidelines states:

To found an action for breach of confidence (which means section 45 would apply), the
following five criteria must be satisfied in relation to the confidential information:

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•  It must be specifically identified,
•  it must have the necessary quality of confidentiality,
•  it must have been communicated and received on the basis of a mutual
understanding of confidence,
•  it must have been disclosed or threatened to be disclosed, without authority, and
•  unauthorised disclosure of the information has or will cause detriment.

3.3  Document 3 contains material that was provided in confidence, and would found an action for
a breach of confidence if disclosed. The information was supplied for the purpose of
conducting an investigation, and is specifically identified. It has the necessary quality of
confidentiality as it is not in the public domain. It was communicated by the parties on the
basis of a mutual understanding of confidentiality, and has the necessary quality of
confidentiality as it is only known to the parties involved. Further, I am satisfied that release
would cause detriment to both parties, as it would prevent the flow of information for the
purpose of undertaking audits and investigations in future.

3.4  Accordingly, I am satisfied that the information contained within the document is of such a
nature that it is exempt under section 45 of the FOI Act.

4.  Section 47E(d) – The Conduct of the Operations of an Agency

4.1
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its
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.

4.2
Documents 1 and 2 contain operational information about how the department has assessed
compensation claims, including the status and outcomes of these claims. These documents
contain the amount claimed and paid to each tenderer, and the status of the compensation
claims that are still in progress. Disclosure of this information could have the capacity to
undermine the department’s ability to properly assess and award the appropriate amount of
compensation based on each tenderer’s particular circumstances. Moreover, if the amount of
compensation paid to each tender is disclosed, it could provide the tenders whose claims are
still active with an unfair advantage in negotiating their compensation amount.

4.3
Therefore, I am satisfied that the documents are conditionally exempt from disclosure under
section 47E(d) of the FOI Act.

5.  Section 47F – Personal Information

5.1
Section 47F of the FOI Act provides that a document is conditionally exempt if it would
unreasonably disclose personal information about any person.

5.2
Personal information is defined as information or opinion, whether true or not, about an
individual whose identity is apparent, or can reasonably be ascertained, from the
information or opinion.

5.3
When determining whether the disclosure of personal information would be unreasonable,
section 47F(2) of the FOI Act requires me to consider:
•  the extent to which the information is well known,
•  whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document,
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•  the availability of the information from publicly accessible sources, and
any other matters that I consider relevant.

5.4
Documents 1 and 3 include the names, contact details and signatures of individuals. This
personal information is not well known or publicly available, and the individuals to which the
information relates are not publicly known to be associated with the matters contained in
the documents. I also do not consider that any public purpose would be achieved through
the release of the personal information.

5.5
Therefore, I have decided that the personal information contained in documents 1 and 3, is
conditionally exempt from disclosure under section 47F of the FOI Act.

6.  Section 47G – Business Information

6.1
Section 47G of the FOI Act provides that a document is conditionally exempt if it would
disclose information relating to the commercial or financial affairs of an organisation, where
disclosure would, or could reasonably be expected to, unreasonably affect that organisation 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.

6.2
Documents 2 and 3 contain information relating to various businesses involvement in the
Entrepreneurs’ Program 2019 procurement of delivery partners, and subsequent
compensation. The information is not publicly known, and its release could prejudice the
tenders from applying for future programmes. I am satisfied that disclosure of this
information would adversely affect those organisations in respect of their lawful business,
commercial and financial affairs.

6.3  Accordingly, I am satisfied that certain material contained in documents 2 and 3 is
conditionally exempt under section 47G of the FOI Act.

7.  Public Interest Test

7.1
Under section 11A(5) of the FOI Act, a conditionally exempt document can only be withheld
from release if access to the document would, on balance, be contrary to the public interest.
To determine whether access would be contrary to the public interest, the decision maker
must weigh up both factors for and against disclosure.

Factors favouring disclosure

7.2
In weighing up the public interest factors in favour of disclosure, I have considered the
relevant factors set out in section 11B(3) of the FOI Act, being the extent to which disclosure
would:
•  promote the objects of the FOI Act,
•  inform debate on a matter of public importance,
•  promote effective oversight of public expenditure, and
•  allow a person access to his or her own personal information.

7.3
Further, I have not considered matters which section 11B(4) of the FOI Act state are
irrelevant considerations.

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Factors against disclosure

7.4
The FOI Act does not provide specific factors weighing against disclosure, and these factors
will depend on the circumstances.

7.5
Therefore, I have considered the following factors as provided by Part 6 of the FOI
Guidelines, where access could reasonably be expected to:
•  prejudice the protection of an individual's right to privacy, and
•  harm the interests of an individual or group of individuals.

7.6
I have also considered the negative effect to the proper and efficient conduct of the
department’s processes If the documents were to be released.

Section 47E(d) - The Conduct of the Operations of an Agency

7.7  In relation to the material conditionally exempt under section 47E(d) of the FOI Act, I
consider that disclosure would reasonably be expected to adversely affect the way the
department assesses compensation claims, by disclosing internal processes and
compensation payment amounts.

7.8
Having considered the strengths of the public interest factors for and against disclosure, I am
of the view that, on balance, the public interest factors against disclosing the material in
documents 1 and 2 outweigh those in favour of disclosure. I therefore find that certain
materials contained in documents 1 and 2 are exempt from disclosure under sections 47E(d)
of the FOI Act.

Section 47F - Personal Information

7.9
In relation to the material conditionally exempt under section 47F of the FOI Act, I consider
that disclosure of the personal information in question would prejudice multiple individuals’
right to privacy. I also consider that disclosure of the information would not inform debate
on a matter of public importance, promote effective oversight of public expenditure, or
allow you or another person to access their own personal information.

7.10  Following consideration of these factors, I have decided that the public interest in disclosing
the personal information is outweighed by the public interest against disclosure. Therefore, I
have decided that the personal information within the documents is exempt under section
47F(1) of the FOI Act.

Section 47G - Business Information

7.11  In relation to the material conditionally exempt under section 47G of the FOI Act, I consider
that disclosure of the information could harm the interests of the businesses discussed in the
documents, particularly where they have provided this information to aid the department
and its contractor in its investigations. The business information in question is not well
known and is not available from publicly accessible resources.

7.12  Having considered the strengths of the public interest factors for and against disclosure, I am
of the view that, on balance, the public interest factors against disclosure outweighs those in
favour. Therefore, I have decided that the business information is exempt from disclosure
under section 47G of the FOI Act.

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8.  Publication

8.1
Section 11C of the FOI Act requires agencies to publish documents released through an FOI
request on our website within 10 business days of release, except in certain circumstances
including when the documents contain personal or business information that would be
unreasonable to publish.

8.2
The documents being released to you do not contain any personal or business information
that would be unreasonable to publish. As a result, they will be published on our disclosure
log within 10 business days of the documents being released to you.

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Attachment B
Review Rights

Application for Internal Review

Section 54 of the FOI Act gives you the option to apply for a departmental internal review of my
decision.  If you make an application for internal review, it will be conducted by an officer of the
department (other than me) appointed by the Secretary of the department to conduct a review
and make a completely fresh decision on the merits of the case.

Application for a review of the decision must be made within 30 days after the day of receipt of
this letter, or within 15 days of receipt of the documents to which this decision relates (whichever
is the longer period). You do not have to pay any fees or processing charges for an internal review,
except for charges if further searches are conducted and additional documents are identified as
relevant and if the decision maker chooses to impose a charge. While a specific form is not
required, it would assist the decision maker if your application specifies the grounds on which you
consider the decision should be reviewed.

Application for a review of a decision should be addressed to:

FOI Coordinator
Department of Industry, Science and Resources
GPO Box 2013
CANBERRA ACT 2601

or by email to: xxx@xxxxxxxx.xxx.xx.

Review by the Australian Information Commissioner

If any decision on internal review were not satisfactory to you, section 54L of the FOI Act gives you
the right to apply for review of my decision by the Information Commissioner.
An application for review by the Information Commissioner may be made regardless of whether
the decision was the subject of a departmental internal review. An application for review by the
Information Commissioner must be made within 60 days of receipt of this notice. There is no fee
for review by the Information Commissioner.

You must apply in writing and you can lodge your application in one of the following ways:

Online: www.oaic.gov.au
Post: GPO Box 5288, Sydney NSW 2001
Fax: +61 2 6123 5145
Email: xxxxx@xxxx.xxx.xx

An application form is available on the website at www.oaic.gov.au.  Your application should
include a copy of this notice and your contact details.  You should also set out why you are
objecting to the decision.

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Complaints to the Australian Information Commissioner

You may make a complaint to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act.  There is no
fee for making a complaint. The Australian Information Commissioner will make a completely
independent investigation of your complaint. A complaint to the Australian Information
Commissioner must be made in writing and can be lodged online using the Information
Commissioner Complaint Application form on the Australian Information Commissioner’s website
at www.oaic.gov.au.

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Attachment C
Request for Access under the Freedom of Information Act 1982 (Cth)
Department of Industry, Science and Resources
FOI 300184
SCHEDULE OF DOCUMENTS

No
Description of document
Decision
Reasons
1.    Ministerial Submission MS25-000542
Release in part
s42 - legal professional privilege
s47E(d) - operations of an agency
s47F - personal information

2.    Summary of claims
Access refused
s42 - legal professional privilege
s47E(d) - operations of an agency
s47G - business information

3.    Entrepreneurs’ Programme Performance Audit of
Release in part
s45 - information obtained in confidence
i4Connect conducted by OCM
s47F - personal information
s47G - business information

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