Our reference: FOIREQ13/00024
Geordie Guy
By email to:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Guy
Outcome of your Freedom of Information request
I refer to your request for access to information under the
Freedom of Information
Act 1982 (Cth) (the FOI Act). I am a decision maker authorised by the Australian Information
Commissioner under s 23(1) of the FOI Act.
Referring to the ‘US Surveillance program – Statement from the Australian Privacy
Commissioner’ of 12 June 2013, you requested access to
Drafts of this statement, as well as any internal correspondence regarding its content
Requests either from the OAIC or other government departments or bodies that the OAIC
and/or the privacy commissioner make such a public statement or any statement regarding
media reports of US surveillance revelations
Legal advice or other general advice that the OAIC has sought or received unsolicited, that
concern the legal status or legal implications of recent US surveillance revelations
Any documents which provide further detail regarding the aforementioned surveillance
programs
My decision
I have identified 16 documents that fall within the scope of your FOI request. In addition to
seeking documents from relevant officers, searches were conducted of the OAIC’s electronic
records database, TRIM, for documents containing any of the terms PRISM, NSA, NSA
surveillance and US surveillance. Under section 11A of the FOI Act, I must provide you with
access to those documents unless they are exempt documents. There are a number of types
of exempt documents, which are set out in Part IV of the FOI Act.
My decision is as follows:
I have decided to release nine documents to you in their entirety (documents 1, 2, 4, 6,
9-12 and 16 listed in
Schedule A).
I have decided to grant you partial access to three documents (documents 7, 13 and 14
in the schedule.
I have decided not to grant you access to four documents listed in the schedule
(documents 3, 5, 8 and 15).
GPO Box 2999 Canberra ACT 2601
Enquiries 1300 363 992 • xxxxxxxxx@xxxx.xxx.xx • TTY 1800 620 241 • www.oaic.gov.au
ABN 85 249 230 937
I note that the OAIC did not receive any requests for the office or the Australian Privacy
Commissioner to make a public statement. However, several requests were received from
media organisations and these are included as they were attached to internal
correspondence about the issue. No legal advice was sought or received about the
implications of the collection of information by the US government. The only information on
the implications of the surveillance programs or considering them, is that which has been
publically reported in the media.
A description of the documents and my decision on release in relation to each document is
attached at
Schedule A. The 12 documents I have decided to release in full or in part are
attached with this decision in number order.
My reasons for refusing full access to the documents are set out below.
Deliberative processes exemption (s 47C)
Section 47C of the FOI Act provides:
47C
Public interest conditional exemptions – deliberative processes
General rule
(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; or
(d) the Government of Norfolk Island
The Australian Information Commissioner has issued Guidelines under s 93A to which regard
must be had for the purposes of performing a function, or exercising a power, under the
FOI Act. These Guidelines are published on the OAIC website.
As the Guidelines explain:
… 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.1
The seven documents that I have decided contain exempt material are documents that
include deliberative matter. They are emails sent within the OAIC for the purpose of
considering how the office might respond to media about US surveillance.
The material is not operational material, nor purely factual. It does not include reports on
scientific or technical matters, nor does it fall within other exclusions under s47C(3)(b) or (c).
1 Office of the Australian Information Commissioner,
Guidelines issued by the Australian Information
Commissioner under s 93A of the Freedom of Information Act 1982, [6.62], quoting
Re Waterford and
Department of the Treasury (No 2) [1984] AATA 67, [58].
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Therefore the documents are conditionally exempt under section 47C of the Act.
The public interest test
Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed
‘unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest’.
Of the factors favouring disclosure set out in s 11B(3), one is relevant to this IC review:
promoting the objects of the FOI Act regarding increased scrutiny of Government activities.
However, I do not regard this as being a strong factor as the documents do not shed light on
Government decision-making. There are no other factors favouring disclosure. While I
consider the issue of access of US surveillance and the extent to which this might affect
Australian citizens is a matter of public interest and importance, I do not consider that
documents related to preparation of a media statement would inform debate about this.
Against the factors favouring disclosure must be balanced the factors against disclosure.
The essence of the media statement is that it represents a considered expression of the
Commissioner’s views on the operation of the operation of the Privacy Act and the role of the
OAIC in relation to a particular issue. To release alternative or incomplete drafts of the
statement would undermine the Commissioner’s educative functions in promoting
understanding of the operation of the Privacy Act.
I also consider that the exchange of views about the wording of a draft statement was done
without an expectation that the comments and questions would be published. The effect of
publication of such preparatory documents can reasonably be expected to impede the way
that views are exchanged.
This is not a matter of draft and preparatory documents causing a loss of confidence to the
Government, or misunderstanding or confusion. Nor is it due to the high seniority of the
Commissioner – the same could be said of a media statement made under the name of the
OAIC. Rather, it is that the drafts could reasonably be expected to impede the function and
purpose of a media statement.
In balancing these factors—for and against disclosure—I give the greatest weight to
the factors against disclosure.
However, pursuant to section 22 of the FOI Act, I consider that three of the documents can be
edited to remove the exempt material. I have decided to grant you access with deletions to
documents 7, 13 and 14, as attached in Schedule A.
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the Act. An
internal review will be conducted, to the extent possible, by an officer of the Office of the
Australian Information Commissioner (OAIC) who was not involved in or consulted in the
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making of my decision. If you wish to apply for an internal review, you must do so in writing
within 30 days. There is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and email to
xxx@xxxx.xxx.xx and state the grounds on which you
consider that my decision should be reviewed.
Further review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal.
You may apply to the Information Commissioner for a review of my decision (IC review). If
you wish to apply for IC review, you must do so in writing within 60 days. Your application
must provide an address (including an email address or fax number) that we can send notices
to, and include a copy of this letter. A request for IC review can be made in relation to my
decision, or an internal review decision. Our website provides information about how to apply
for review at
http://www.oaic.gov.au/freedom-of-information/requesting-a-review.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the Act to conduct an IC review of a decision, or an internal review decision,
made by the agency that the Information Commissioner heads: the OAIC. For this reason, if
you make an application for IC review of my decision, it is likely that the Information
Commissioner will decide (under section 54W(b) of the Act) not to undertake an IC review on
the basis that it is desirable that my decision be considered by the Administrative Appeals
Tribunal.
Section 57A of the Act provides that, before you can apply to the Administrative Appeals
Tribunal for review of an FOI decision, you must first have applied for IC review.
If you are not happy with the way that I have dealt with your request, you can make a
complaint t
o xxxxxxxxx@xxxx.xxx.xx. I would also be happy to discuss any concerns you might
have and can be reached on 02 6239 9170.
Further information about FOI reviews and complaints, including our internal complaint
handling and review of decisions policy is available on our website at
http://www.oaic.gov.au/foi-portal/review_complaints.html .
Yours sincerely
[Signed]
Charine Bennett
Director, Legal Services
Corporate and Communication Branch
13 August 2013
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