Schedule of documents
Freedom of Information Request made by Josh Jones
Chain of email correspondence titled ‘School
Release in part
(release all but the words
between ‘Draft email
follows’ and ‘Cheers
Peter’ in email of 4:57 pm)
Email correspondence between Peter Matheson
Release in full
and Figshare Support
5 – 8
Chain of email correspondence titled ‘RE: FW:
Release in part
Breach of legal rights – Australian Curriculum
Assessment and Reporting Authority – F11/353-
(document marked to
ATTACHMENT B - REASONS FOR DECISION
Any reference to ‘documents’ should be read as including parts of documents relevant to the
particular exemption which is discussed.
For the reasons set out below I have exempted certain documents in part or in full under
sections 42 and 47E(d) of the FOI Act.
Details of the precise parts of the documents exempted are set out in the schedule at Attachment A
Findings of fact and reasons for decision
Where the schedule of documents indicates an exemption claim has been applied to a
document or part of document, my findings of fact and reasons for deciding that the
exemption provision applies to that document or part of document are set out below.
Section 42 – documents subject to legal professional privilege
Section 42(1) exempts a document if the document would be privileged from production in
legal proceedings on the ground of legal professional privilege.
The Guidelines explain (at [5.115] and following) that a document is privileged from
production on the ground of legal professional privilege if all of the following apply:
there exists a lawyer-client relationship;
ii) there have been confidential communications which are recorded in the document;
iii) the communications were for the dominant purpose of providing legal advice or in
the context of actual or anticipated legal proceedings; and
iv) the privilege has not been waived.
I find that disclosure of the documents exempted under section 42(1) would involve
disclosure of documents that would be exempt from production in legal proceedings on the
ground of legal professional privilege.
A professional lawyer-client relationship existed between ACARA and Minter Ellison in
connection with an issue relevant to your request. I am satisfied that Minter Ellison was
employed by ACARA as its legal advisor to provide legal assistance in relation to this matter
and that a lawyer-client relationship was established.
It is clear from the subject matter and content of the advices themselves that a lawyer-client
relationship existed in respect of the communications.
The documents to which the exemption has been applied contain communications made in
the context of the solicitor-client relationship. They were made on the understanding that the
usual and well-established relationship of confidence between a solicitor and a client
governed the communication. The communication was not provided outside of that context
at the time of communication. The communications were confidential at the time they were
made and remain confidential.
The communications were made for the dominant purpose of providing legal advice. They
comprise emails contemplating making a request for legal advice, requesting and receiving
legal advice from Minter Ellison, and consideration of that advice.
Section 42(2) of the FOI Act provides that:
A document is not exempt because of subsection (1) if the person entitled to claim legal
professional privilege in relation to the production of the document in legal proceedings waives
A person who would otherwise be entitled to the benefit of legal professional privilege may
waive that privilege, either expressly or by implication. Legal professional privilege is waived
if the conduct of the person seeking to rely on the privilege is inconsistent with the
maintenance of the privilege. This will depend on the circumstances of the case, including
whether the disclosure was for any advantage.
There is no evidence to indicate that the substance of the communications has been
disclosed more broadly, or used in any way that would be inconsistent with the maintaining
the confidentiality of the communications.
Accordingly, I am satisfied that the documents are exempt under section 42.
I have considered whether any of the documents consist of operational information
to in s 8A, containing material used or to be used for the purpose of making decisions or
recommendations of the kind referred to in section 8A(1) of the FOI Act. To the extent that
they are, no claim for exemption is made under section 42.
Section 47E(d) - substantial adverse effect on the proper and efficient conduct of the
operations of an agency
Section 47E(d) provides that documents are conditionally exempt if 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.
I have considered whether the information is conditionally exempt on the basis that
disclosure would result in a substantial adverse effect on the proper and efficient conduct on
the operations of ACARA under section 47E(d) of the FOI Act.
ACARA’s functions include the collection, management and analysis of student assessment
data, and the facilitation of information sharing arrangements for such data among Australian
government bodies. The My School
database and website are an integral part of this aspect
of ACARA’s operations.
Disclosure of certain information in the documents would enable people to source data from
the My School
ACARA’s principles and protocols.
This could compromise the willingness of other Australian government bodies to provide or
disclose data to ACARA, and therefore could reasonably be expected to adversely affect
I find this adverse effect to be serious and not insubstantial. I find that these documents are
conditionally exempt in part under section 47E(d) of the FOI Act.
The public interest
Conditionally exempt matter must be released unless, in the circumstances, access to that
document at this time would, on balance, be contrary to the public interest (section 11A(5) of
the FOI Act). As the Guidelines state at paragraphs 6.8 - 6.9:
The term ‘public interest’ is necessarily broad and non-specific because what constitutes the
public interest depends on the particular facts of the matter and the context in which it is being
To conclude that, on balance, disclosure of a document would be contrary to the public interest is
to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to
the public of withholding the information. The decision maker must analyse, in each case, where
on balance the public interest lies, based on the particular facts of the matter at the time the
decision is made.
I have considered the factors favouring access and have not considered factors that are
irrelevant in subsections 11B(3) and (4) respectively. In balancing the public interest in this
case, I have considered the following factors for and against disclosure:
Factors in favour of disclosure:
promoting the objects of the Act, particularly in increasing scrutiny, discussion,
comment and review of the Government's activities (section 3(2)(b) of the FOI Act)
ii) facilitating access to information to members of the public that allows them to be
satisfied that proper processes have been followed by the agency.
Factors against disclosure:
I have considered the following factors against disclosure:
protecting the integrity of ACARA’s functions, including maintenance of the My
ii) protecting the agency’s ability to obtain similar information in the future.
Taking into account the above matters, on balance, I consider that disclosure of the
information in the documents is contrary to the public interest. In particular, while I
acknowledge there is a public interest in revealing and scrutinising the steps ACARA takes
to protect My School
data from perceived misuse, that public interest is overwhelmed in a
circumstance where the disclosure of information could facilitate that misuse. Accordingly, I
have decided that the documents are exempt in part under section 47E(d) of the FOI Act.
Section 22(1)(a)(ii) - material irrelevant to the request
Section 22(1)(a)(ii) allows an agency to delete irrelevant material from a document which is
only partially relevant to an applicant's FOI request. I find that some of the documents
relevant to your request contain material which is irrelevant to your FOI request. I have
withheld or deleted that material accordingly. These deletions are detailed in the document
schedule at Attachment A
The irrelevant material relates to emails that concern matters other than telling someone to
take something off a website. While I have taken a generous view of relevance, the material
removed under s 22(1)(a)(ii) cannot properly be described as coming within any of the 3
limbs of your request.
ATTACHMENT C - RELEVANT LEGISLATION
42 Documents subject to legal professional privilege
(1) A document is an exempt document 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) A document is not an exempt document because of subsection (1) if the person entitled
to claim legal professional privilege in relation to the production of the document in legal
proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
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.
22 Access to edited copies with exempt or irrelevant matter deleted
(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.
ATTACHMENT D - REVIEW RIGHTS
If you are dissatisfied with this decision, you have certain rights of review available to you.
Firstly, under section 54 of the FOI Act, you may apply for an internal review of the decision.
Your application must be made by whichever date is the later between:
30 days of you receiving this notice; or
15 days of you receiving the documents to which you have been granted access
An internal review will be conducted by a different officer from the original decision-maker.
No particular form is required to apply for review although it will assist your case to set out in
the application the grounds on which you believe that the original decision should be
overturned. An application for a review of the decision should be addressed to:
Mr Peter Matheson, Board Secretary, ACARA
Email: [email address]
Post: Level 10 | 255 Pitt Street | SYDNEY | NSW | 2000
If you choose to seek an internal review, you will subsequently have a right to apply to the
Australian Information Commissioner for a review of the internal review decision.
Review by the Australian Information Commissioner
Alternatively, under section 54L of the FOI Act, you may seek review of this decision by the
Australian Information Commissioner without first going to internal review. Your application
must be made within 60 days of you receiving this notice.
The Australian Information Commissioner is an independent office holder who may review
decisions of agencies and Ministers under the FOI Act. More information is available on the
Australian Information Commissioner's website www.oaic.gov.au.
You can contact the Information Commissioner to request a review of a decision online or by
writing to the Information Commission at:
GPO Box 2999
Canberra ACT 2601
Complaints to Ombudsman
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by ACARA in relation to your request. The Commissioner
will likely refer the complaint to the Ombudsman under arrangements between those offices.
Your enquiries to the Ombudsman can be directed to:
Phone 1300 362 072 (local call charge)
Email [email address]
Your enquiries to the Australian Information Commissioner can be directed to:
– Phone 1300 363 992 (local call charge)
Email [email address]
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 ACARA as the relevant agency.