FA 15 11 00990 MELLER Decision.pdf

25 May 2016

In reply please quote:
FOI Request  FA 15/11/00990
File Number  ADF2015/62503

E Meller

Sent via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear E Meller,

Freedom of Information request – decision on request

This letter refers to your request received on 14 November 2016 seeking access under the
Freedom of Information Act 1982 (the FOI Act) to the following documents:

Incident Detail Report 1-3GBVST from the Department's Compliance, Case
Management, Detention and Settlement Portal. I also request any documents
attached to the detailed report.

Decision
The Department has identified one document that falls within the scope of your request. This
document was in the possession of the Department on 14 November 2015 when your
request was received.

The decision in relation to the document in the possession of the Department which comes
within the scope of your request is as follows:

  Exempt in part - one document subject to your request

The reasons for the decision are set out in the attached Decision Record at Attachment A.

The schedule for these documents is at Attachment B for your reference.

Review rights

Internal review
If you disagree with my decision, you have the right to apply for an internal review by the
Department of my decision. Any request for internal review must be provided to the
Department within 30 days of you being notified of the decision. Where possible please
attach reasons why you believe review of the decision is necessary. The internal review will
be carried out by an officer other than the original decision-maker and the Department must
make a review decision within 30 days.

6 Chan Street Belconnen ACT 2617
PO Box 25 BELCONNEN ACT 2616  Telephone: 02 6264 1111  Fax: 02 6225 6970  www.border.gov.au

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Applications for review should be sent to:

Freedom of Information
Department of Immigration and Border Protection
PO Box 25
BELCONNEN ACT 2617

Or by email to: xxx@xxxxxx.xxx.xx

Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for a
review of my decision. You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a review request to the OAIC, please see
FOI fact sheet 12 ‘Freedom of information – Your review rights’, available online at
www.oaic.gov.au .

How to make a complaint about the handling of this FOI request
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by the Department of Immigration and Border Protection in
relation to your request.

The Ombudsman will consult with the Australian Information Commissioner before
investigating a complaint about the handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
Phone 1300 362 072 (local call charge)
Email xxxxxxxxx@xxxxxxxxx.xxx.xx
Your enquiries to the Australian Information Commissioner can be directed to:
–
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Ombudsman or the Australian
Information Commissioner. The request should be in writing and should set out the grounds
on which it is considered that the action taken in relation to the request should be
investigated and identify the Department of Immigration and Border Protection as the
relevant agency.

Contacting the FOI Section
If you wish to discuss this matter, I can be contacted using the details provided below.

Yours sincerely

Shannon Bevan
Authorised decision maker
Freedom of Information Section
Department of Immigration and Border Protection
Email xxx@xxxxxx.xxx.xx

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Attachments
  Attachment A - Decision Record
  Attachment B - Schedule of Documents
  Attachment C – Extract of relevant legislation
  Attachment D - Documents released

Attachment A

DECISION RECORD

Request Details
FOI Request  FA 15/11/00990
File Number  ADF2015/62503

Scope of request

Incident Detail Report 1-3GBVST from the Department's Compliance, Case
Management, Detention and Settlement Portal. I also request any documents
attached to the detailed report.

Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate Departmental records.

Information considered
In reaching my decision, I have considered the following:

  the terms of your request
 the Freedom of Information Act 1982;
  the Australian Information Commissioner’s guidelines relating to access to documents
held by government
 Departmental
documents,
identified
in the Schedule of Documents; and
  consultations with relevant business area/s.

Reasons for decision
I have considered the files within the scope of your request and applied exemptions in part or
in full to documents as detailed in the Schedule of Documents. You should read the schedule
in conjunction with the exemptions below.

Deletion of exempt or irrelevant material under s.22 of the Act
Section 22(2) of the FOI Act provides that, where an agency reaches the view that a
document contains exempt information or material that is irrelevant to the request and it is
possible for the agency to prepare an edited copy of the document with the irrelevant or
exempt material deleted, then the agency must prepare such a copy.

This edited copy must be provided to the applicant. Further, the decision maker must advise
the applicant in writing that the edited copy of the document has been prepared and of the
reason(s) for each of the deletions in the document (s.22(3) of the FOI Act).

6 Chan Street Belconnen ACT 2617
PO Box 25 BELCONNEN ACT 2616  Telephone: 02 6264 1111  Fax: 02 6225 6970  www.border.gov.au

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Exempt material is deleted pursuant to s.22(1)(a)(ii) and irrelevant material is deleted
pursuant to s.22(1)(a)(ii) of the FOI Act.

The attached Schedule of Documents identifies documents where material has either been
deleted as exempt information under the FOI Act or deleted as irrelevant to the scope of the
request.

Deletion of irrelevant material as applied to your FOI request
The documents contain information which is considered irrelevant to your request. Irrelevant
information includes the names of Departmental staff below senior executive level and also
the names of staff employed by Serco.

Conditionally exempt documents
The documents I have considered fall under a ‘conditional’ exemption in the FOI Act.

I will explain what a ‘conditionally exempt’ document is before discussing the individual
exemption I have applied.

The FOI Act was amended in November 2010 to impose a new public interest test on all
‘conditionally exempt’ information, including personal information. The FOI Act now provides
that ‘conditionally exempt’ information must be released unless the decision maker reaches
the view that release of the information would be ‘contrary’ to the public interest.

The public interest test

Factors weighing in favour of release

In weighing up the public interest test, s.11B(3) of the FOI Act states that a decision maker
must consider whether disclosure of the information would:

(a)  promote the objects of the Act; or
(b)  inform debate on a matter of public importance; or
(c)  promote effective oversight of public expenditure; or
(d)  allow a person to access his or her personal information.

The objects of the FOI Act, set out in s.3(1), are to give the Australian community access to
information held by the Government of the Commonwealth by providing, amongst other
things, for a right of access to documents. The intention of Parliament is to promote
Australia’s representative democracy by increasing public participation in Government
processes, with a view to promoting better-informed decision-making and increasing scrutiny,
discussion, comment and review of the Government’s activities.

Factors weighing against release

The FOI Act does not contain any factors ‘against’ disclosure. However, the FOI Act states
that, if the Australian Information Commissioner has issued Guidelines (IC Guidelines) that
set out factors weighing against disclosure, then the decision maker must also consider
those factors when weighing the public interest (s.11B(5) of the FOI Act).

The Information Commissioner has since issues Guidelines that contain a non-exhaustive
list of factors that a decision maker must consider when weighing whether it is contrary to
the public interest to release ‘conditionally exempt’ information (paragraph 6.29 of the IC
Guidelines).

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The elements that weigh against disclosure are:
Whether disclosure of the personal information could reasonably be expected to:
(a)  prejudice the protection of an individual’s right to privacy, including where:
i. the personal information is that of a child, where the applicant is the child’s
parent, and disclosure of the information is reasonably considered not to be in
the child’s best interests
ii. the personal information is that of a deceased individual where the applicant
is a close family member (a close family member is generally a spouse or
partner, adult child or parent of the deceased, or other person who was
ordinarily a member of the person’s household) and the disclosure of the
information could reasonably be expected to affect the deceased person’s
privacy if that person were alive.
(b)  prejudice the fair treatment of individuals and the information is about
unsubstantiated allegations of misconduct or unlawful, negligent or improper
conduct
(c)  prejudice security, law enforcement, public health or public safety
(d)  impede the administration of justice generally, including procedural fairness
(e)  impede the administration of justice for an individual
(f)  impede the protection of the environment
(g)  impede the flow of information to the police or another law enforcement or
regulatory agency
(h)  prejudice an agency’s ability to obtain confidential information
(i)  prejudice an agency’s ability to obtain similar information in the future
(j)  prejudice the competitive commercial activities of an agency
(k)  harm the interests of an individual or group of individuals
(l)  prejudice the conduct of investigations, audits or reviews by the Ombudsman
or Auditor-General
(m) prejudice the management function of an agency
(n)  prejudice the effectiveness of testing or auditing procedures

I will now consider each conditional exemption that I have applied in my decision.

Conditional Exemptions as applied to your request

Public interest conditional exemption – personal information – s.47F(1)

A document is ‘conditionally exempt’ under s.47F(1) of the FOI Act if its release would
involve the unreasonable disclosure of personal information about any person, including a
deceased person.

For information or documents to be exempt under this provision, the information in the
documents must meet the definition of ‘personal information’ in s.4(1) of the FOI Act and I
must be satisfied that the release of the information is ‘unreasonable’.

The test of unreasonableness implies a need to balance the public interest in disclosure of
government-held information and private interests of individuals.

Personal information

I am satisfied the document falling within the scope of your request contains the personal
information of third parties.

The exemption in s.47F(1) of the FOI Act applies if I am satisfied that the release of
information would involve the unreasonable disclosure of third parties personal information.

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The FOI Act states that when deciding whether the disclosure of personal information would
be unreasonable. I must have regard to the factors set out in s.47F(2), being:

(a)  the extent to which the information is well known;
(b)  whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the documents;
(c)  the availability of the information from publicly available resources;
(d)  any other matters that I consider relevant.

I have considered each of these elements separately below.

(a)  Extent to which the information is known

While I note that a summary of the incident is in the public domain, the specific details
of the individual concerned has not previously been released. The identity of the
individual is not widely known.

(b)  Whether the person to whom the information relates is known to be associated with
the matters in the document

As discussed above, the identity of the individual involved in the incident is not widely
known. Their personal details in connection to the incident have not been previously
released.

(c)  The availability of the information from publicly available sources

As discussed above, there is a summary of the incident in the public domain.
However, the personal information identified as exempt is not available through any
public sources.

(d)  Any other matters that the agency considers relevant

  The information is not your personal information.
  Every person has the right to expect that their personal information will be
securely maintained by the Department.
  Whether the personal information; on its own; or in connection with other
information already known to other persons, amounts to the individual being
identified.

After considering each element in s.47F(2), I am satisfied that disclosure of personal
information would be unreasonable.

Therefore, I am satisfied that the personal information I have identified in the relevant
document is conditionally exempt under s.47F(1) of the FOI Act. A conditionally exempt
document must be released under the FOI Act unless the release would be contrary to the
public interest. As a result, I must now consider the factors set out in the public interest test
in s.11B(3) of the FOI Act to determine whether the release of the information in the
document would be ‘contrary to the public interest’.

Factors weighing in favour of release

I am satisfied that the release of the documents would promote the objects of the FOI Act as
it would provide access to information held by Government and that this factor weighs in
favour of the release not being ‘contrary to the public interest’.

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However, I am satisfied that the release of the third parties personal information contained in
the relevant document would not have any bearing on or relevance to any matter of public
debate. Therefore, this factor does not weigh in favour of release.

I am also satisfied that the release of the personal information is irrelevant to the effective
oversight of public expenditure. Therefore, this factor does not weigh in favour of release.

Finally, the release of the documents containing the third parties personal information would
not allow you to access your own information. This factor does not weigh in favour of release.

Factors weighing against release

As set out above, the Information Commissioner has issued Guidelines that contain a list of
factors weighing against disclosure which must be considered under s.11B(5) of the FOI Act.

I consider that these factors are relevant to the personal information in the identified
documents:

  disclosure of the third parties personal information could reasonably be expected to
prejudice the protection of the individual’s right to privacy;
  it is a core Government concern to maintain an individual’s privacy;
  no purpose would be achieved/served by releasing the third parties personal
information; and
  the current relevance of the information.

On balance, I am satisfied that release of the third parties personal information would be
‘contrary to the public interest’ and is therefore exempt under s.47F(1) of the FOI Act. The
factor against disclosure relating to the protection of an individual’s right to privacy was given
the most weight. The benefit to the public resulting from disclosure is outweighed by the
benefit of withholding this information.

Public interest conditional exemption – certain operations of agencies – s.47E

For information to be exempt under s.47E(d), I must be satisfied that there is a reasonable
expectation that its disclosure would have a substantial adverse effect on the proper and
efficient conduct of the operations of this Department and that there is no overriding public
interest in favour of disclosure.

Operational Information

I am satisfied that the information contained in the incident report, could reasonably be
expected, if disclosed, to prejudice the effectiveness of the operations of this Department and
is accordingly exempt under section 47E(d) of the FOI Act. The release of the ‘operational’
information, being the Church’s name and location, could compromise the Department’s
ability to take detainees to public places of worship.

As set out above, a conditionally exempt document must be release under the FOI Act
unless the release would be ‘contrary to the public interest’. Therefore I must now consider
whether its release would be contrary to the public interest.

Factors weighing in favour of release

I have considered the factors set out in s.11B(3) of the FOI Act.

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Although release would promote the objects of the Act, I do not consider that it would inform
debate on a matter of public importance. In addition, the release of the information is
irrelevant to the effective oversight of public expenditure and would not facilitate you
accessing your own personal information.

Factors weighing against release

In this case I have considered the following:

  whether disclosure of the information could reasonably be expected to prejudice the
operations of this Department;
  whether disclosure of the information could reasonably be expected to require the
Department to change the way it operates;
  whether disclosure of the information could reasonably be expected to prejudice the
function of the Department to manage its portfolio;
  whether disclosure of the information could reasonably be expected to harm the
interests of an individual or group of individuals;
  the degree to which release would contribute to a public purpose being achieved
and/or shed light on the working of government;
  the need for openness and accountability of the Department’s operations.

I am satisfied that releasing information about the way the Department operates, in particular
the details of the Church identified in the incident report, would have a substantial adverse
effect on the Department’s operations.

On balance, I am satisfied that the release of the operational material in the documents
would be ‘contrary to the public interest’. Therefore, I am satisfied that the operational
material in the documents is exempt from release under s.47E(d) of the FOI Act.

Shannon Bevan
Authorised decision maker
Department of Immigration and Border Protection

Email xxx@xxxxxx.xxx.xx

25 May 2016

Attachment B

SCHEDULE OF DOCUMENTS TO DECISION RECORD

FOI Request  FA 15/11/00990
File Number  ADF2015/62503

No.  Date of
No. of
Description
Decision on release
document
pages

1.
04/01/2016
3
Incident Detail Report – 1-3GBVST  Exempt in
s.22(1)(a)(ii)
Part
s.47F(1)
s.47E(d)

6 Chan Street Belconnen ACT 2617
PO Box 25 BELCONNEN ACT 2616  Telephone: 02 6264 1111  Fax: 02 6225 6970  www.border.gov.au

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Attachment C – Extract of relevant legislation

22 Access to edited copies with exempt or irrelevant matter deleted
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.
Notice to applicant

(3)  The agency or Minister must give the applicant notice in writing:

(a)  that the edited copy has been prepared; and

(b)  of the grounds for the deletions; and

(c)  if any matter deleted is exempt matter—that the matter deleted is exempt
matter because of a specified provision of this Act.

(4)  Section 26 (reasons for decision) does not apply to the decision to refuse access
to the whole document unless the applicant requests the agency or Minister to
give the applicant a notice in writing in accordance with that section.

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47F Public interest conditional exemptions—personal privacy
General rule

(1)  A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including
a deceased person).

(2)  In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must
have regard to the following matters:

(a)  the extent to which the information is well known;

(b)  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;

(c)  the availability of the information from publicly accessible sources;

(d)  any other matters that the agency or Minister considers relevant.

(3)  Subject to subsection (5), subsection (1) does not have effect in relation to a
request by a person for access to a document by reason only of the inclusion in
the document of matter relating to that person.
Access given to qualified person instead

(4)  Subsection (5) applies if:

(a)  a request is made to an agency or Minister for access to a document of the
agency, or an official document of the Minister, that contains information
concerning the applicant, being information that was provided by a qualified
person acting in his or her capacity as a qualified person; and

(b)  it appears to the principal officer of the agency or to the Minister (as the
case may be) that the disclosure of the information to the applicant might be
detrimental to the applicant’s physical or mental health, or well-being.

(5)  The principal officer or Minister may, if access to the document would otherwise
be given to the applicant, direct that access to the document, so far as it contains
that information, is not to be given to the applicant but is to be given instead to a
qualified person who:

(a)  carries on the same occupation, of a kind mentioned in the definition of
qualified person in subsection (7), as the first-mentioned qualified person;
and

(b)  is to be nominated by the applicant.

(6)  The powers and functions of the principal officer of an agency under this section
may be exercised by an officer of the agency acting within his or her scope of
authority in accordance with arrangements referred to in section 23.

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(7)
In
this
section:
qualified person means a person who carries on, and is entitled to carry on, an
occupation that involves the provision of care for the physical or mental health of
people or for their well-being, and, without limiting the generality of the foregoing,
includes any of the following:

(a)  a medical practitioner;
(b)
a
psychiatrist;
(c)
a
psychologist;
(d)
a
counsellor;

(e)  a social worker.
Note:
Access must generally be given to a conditionally exempt document
unless it would be contrary to the public interest (see section 11A).

47E Public interest conditional exemptions—certain operations of agencies

  A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:

(a)  prejudice the effectiveness of procedures or methods for the conduct of
tests, examinations or audits by an agency;

(b)  prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;

(c)  have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth, by Norfolk Island or by an agency;

(d)  have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note:
Access must generally be given to a conditionally exempt document
unless it would be contrary to the public interest (see section 11A).