Level 5, 100 Market Street,
Sydney NSW 2000
GPO Box 9827, Sydney NSW 2001
Our Ref:
17129/16
DX 653 Sydney
23 June 2016
Telephone: +61 2 9911 2000
Facsimile: +61 2 9911 2414
Mr Phillip Sweeney
www.asic.gov.au
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
Request under the Freedom of Information Act 1982 for access to documents
I refer to your request under the
Freedom of Information Act 1982 (FOI Act) received
by the Australian Securities and Investments Commission (ASIC) by email on 7 May
2016 in which you sought access to:
A copy of the document recently lodged with ASIC by the legal firm representing Dr
Benjamin Koh seeking ASIC to enforce Section 156C of the Life Insurance Act 1995
which alleges victimisation by one or more senior managers of Comminsure.
The names of those alleged to have contravened Section 156C can be redacted if
necessary.
On 23 May 2016, I informed you by letter that I had consulted with an affected party
in relation to the document that fell within the scope of your request and that I would
notify you of my decision by 6 July 2016. I have now received a submission from the
affected party and I have had regard to this submission when making my decision in
relation to your request.
I have identified the document which comes within the terms of your request. The
document is a letter to ASIC dated 3 May 2016 from a law firm representing Dr
Benjamin Koh.
Relevant Legislation
Section 47G(1) – Public interest conditional exemption – business Section 47G(1) provides that:
(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
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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; or
(b) could reasonably be expected to prejudice the future supply of information to
the Commonwealth, Norfolk Island or an agency for the purpose of the
administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency.
Section 22
Section 22 of the FOI Act provides that where an agency or Minister decides not to
grant access to a document on the grounds that it is an exempt document or that to
grant access to a document would disclose information that would reasonably be
regarded as irrelevant to the request: and, "it is possible for the agency....to make a
copy of the document with such deletions that the copy ....would not be an exempt
document: and ..would not disclose such information....and it is reasonably practical
for the agency or Minister, having regard to the nature and extent of the work
involved in deciding on and making those deletions and resources available for the
work, to make such a copy...the agency or Minister shall, unless it is apparent from
the request or as a result of consultation by the agency or Minister with the applicant,
that the applicant would not wish to have access to such a copy, make and grant
access to such a copy".
Decision
I have decided not to release the document under your request, on the grounds that the
document is exempt from release for the following reasons.
Section 47G(1)(a) of the FOI Act provides that a document is a conditionally exempt
document if its disclosure under the FOI Act would, or could reasonably be expected
to, unreasonably affect an organisation adversely in respect of its lawful business,
commercial or financial affairs.
The document falling within your request is a letter to ASIC from a law firm
representing Dr Koh seeking that ASIC take action in respect of certain matters. I am
satisfied that the document contains information concerning the business affairs of the
law firm.
I have consulted with the affected third party under s27 of the FOI Act about the
disclosure of the requested information. After considering the third party’s
submission, I am satisfied that the document contains information that if disclosed,
would adversely impact the law firm's ability to act in similar matters in the future if
potential clients are concerned that correspondence with a regulator is not treated with
the strictest of confidence. It would be reasonable for a client of this affected party to
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expect that confidential communications with a regulator in respect to their matter
would not be readily available to members of the public.
I have therefore determined that disclosure of the relevant information in the
document where the affected party has not expressly consented to the disclosure
would be unreasonable.
Section 47G(1)(b) of the FOI Act provides that a document is a conditionally exempt
document if its disclosure under the FOI Act could reasonably be expected to
prejudice the future supply of information to the Commonwealth, Norfolk Island or an
agency for the purpose of the administration of a law of the Commonwealth or of a
Territory or the administration of matters administered by an agency.
The document is a letter that has been sent to ASIC containing information about a
matter involving particular conduct. There is a risk that release of information
provided voluntarily to ASIC of this nature may prejudice the future supply of similar
information to ASIC and act as a deterrence for persons wishing to report similar
conduct to ASIC.
Public Interest
Section 11A(5) of the FOI Act provides that an agency must give a person access to a
document if it is conditionally 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.
In relation to the document that is conditionally exempt under s47G(1) of the FOI Act,
I find that giving access to this document in the circumstances would be, on balance,
contrary to the public interest and therefore, that the document is an exempt
document. In making this finding, I took into account that the release of the
document:
(a) could, although only to a limited extent, promote the objects of the FOI Act, by
potentially increasing discussion and comment of the Government's activities;
(b) would not contribute to the administration of justice generally or for a particular
person;
(c) would not contribute to the enforcement of the criminal law;
(d) could reasonably be expected to harm the interests of an individual or group of
individuals;
(e) could reasonably be expected to deter future parties from raising concerns about
alleged misconduct and breaches of the law;
(f) could reasonably be expected to impede the flow of information to ASIC in the
future;
(g) in particular, could reasonably be expected to prejudice ASIC's ability to obtain
similar information in the future; and
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(h) could reasonably be expected to prejudice and negatively impact ASIC’s ability
to obtain confidential nature in the future.
Access to edited copy
I have considered whether, pursuant to s22 of the FOI Act, access should be granted
to part of the previously mentioned exempt document. For the reasons above,
explaining the basis of the exemptions applied in respect to the document, I find that
the document is an "exempt document" under s47G of FOI Act. I further find that it
would not be possible to make a copy of the document with such deletions that the
document would not be an exempt document. Releasing any part of the exempt
document would still in my view, constitute an unauthorised disclosure of information
that would negatively impact the affected parties involved and ASIC’s ability to
obtain similar information in the future.
Assessment of Charges
The FOI Act provides that charges may be assessed for time spent processing a
request. I have decided that there are no charges applicable to the processing of your
request in this instance.
Review Rights
I provide you with the following information as required by s26 of the FOI Act.
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this
decision, apply in writing to ASIC for a review of my decision by another ASIC
officer under s54B of the FOI Act. This request should be addressed to me or to the
Senior Manager, Administrative Law GPO Box 9827 SYDNEY or by email to
xxxxxxxxxx@xxxx.xxx.xx.
2. You may apply in writing to the Australian Information Commissioner for a review
of my decision under s54N of the FOI Act. Correspondence should be addressed to
the
Office
of
the
Australian
Information
Commissioner
at
GPO Box 5218 Sydney NSW 2001.
3. You may lodge a complaint to the Commonwealth Ombudsman in respect to the
conduct of ASIC in the handling of this request. To do so, you can contact the
Ombudsman's office either: by e-mail to
xxxxxxxxx@xxxxxxxxx.xxx.xx, by
letter to GPO Box 442 Canberra ACT 2601, or by fax to (02) 6276 0123.
Yours sincerely
Evelyn Ong
(Authorised decision-maker under subsection 23(1) of the FOI Act)
for the Australian Securities and Investments Commission
