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LS5768 ~ file 16/0732.
Graeme Bowman
By email to:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Bowman
Your Request for internal review of the decision about your FOI Request No. LS5744
I refer to your email of 28 August 2016 11:37 PM, to the Australian Electoral Commission
(‘AEC’) in which you request (your ‘FOI Request’) access under the Freedom of Information
Act 1982 (the ‘FOI Act’) access to information about the same sex marriage plebiscite.
2
I also refer to your email of 18 September 2016 4:39 PM, to the AEC in which you
request (your ‘Internal Review Request’) an internal review of the decision to refuse
access to certain documents retrieved in respect of your FOI Request No. LS5744
made by Mr Paul Pirani, Chief Legal Officer of the AEC that was notified to you on
14 September 2016.
3
I am writing today to give you a decision about your Internal Review Request
Summary
4
I, Kathryn Toohey, Deputy Electoral Commissioner of the AEC, am an officer
authorised under section 23(1) of the FOI Act to make decisions in relation to the
internal review of a decision about an FOI request.
5
Specifically you sought a review of the decision to refuse access to Documents Nos
1 - 4 that are listed in the schedule at Annexure 1 to this letter.
6
I note that your FOI Request No. LS5744 was wider in its terms and that you were
consulted about a practical refusal reason that applied to that FOI Request. See
below at paragraphs 52 - 56 about the outcome of that consultation.
7
The schedule of retrieved documents in Annexure 1 provides a description of each
retrieved document that falls within the scope of your request and the access
decision for each of those documents.

50 Marcus Clarke St
Locked Bag 4007
Tel 02 6271 4411
www.aec.gov.au
Canberra City 2600
Canberra ACT 2601
Fax 02 6215 9999
ABN 21 133 285 851

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With regard to the documents you requested (set out in Annexure 1), I have decided
to:
(a)  refuse access to Document No. 2 and to offer in lieu access to an edited copy
of that document on the terms offered in paragraphs paragraphs 46 and 47 of
this letter.
(b)  refuse access to Documents Nos. 1, 3 and 4.
This substantively affirms the decision by Mr Pirani to refuse access to those
documents.
9
More information, including my reasons for my decision, is set out below.
Decision and reasons for decision
Decision
10
With regard to the documents identified in Annexure 1, I have decided:
(a)  to refuse access to Documents Nos. 1, 3 and 4 under sections 4 and 15 of the
FOI Act because they are outside the scope of documents that may be
requested under Part III of the FOI Act; and
(b)  to refuse access to Document No. 2 under section 47C (Public interest
conditional exemption – deliberative processes) as providing access would be
contrary to the public interest and to offer in lieu access to an edited copy of
Document No. 2 from which exempt material is redacted on the terms offered in
paragraphs 46 and 47 of this letter.
Material taken into account
11
I have taken the following material into account in making my decision:
(a)  the content of the documents that fall within the scope of the FOI Request No.
LS5744;
(b)  your contentions in your email of 18 September 2016 4:39 PM;
(c)  the FOI Act, specifically; the long title, sections 3, 3A, 4, 11A, 11B, 15, 47C and
54C.
(d)  the guidelines (‘FOI Guidelines’) issued by the Australian Information
Commissioner under section 93A of the FOI Act, specifically paragraphs 6.3 –
6.3, 6.11- 633, 6.56 - 6.77 and 13.84 – 13.101;
(e)  Public Governance, Performance and Accountability Act 2013 (the ‘PGPA Act’),
specifically sections 8, 26 and 52; and
(f)
the decision in Harris v Australian Broadcasting Corporation and Ors [1983]
FCA 242; (1983) 78 FLR 236 (‘Harris’ Case’).
Reasons
12
Annexure 1 indicates each document to which access is refused. My reasons for
refusing access are given below.
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13
When seeking internal review of the primary decision in respect of your FOI Request
LS5744 you made the following contentions:
The request was refused and I and many others are very disappointed over response.
This a non binding Plebiscite. We as Australian Citizens and/or taxpayers have the
right to be informed as to how our tax dollars are spent. Many of us believe that the
cost $154,000,000 is completely and underestimated. For that reason along we
expect our rights to be protected. This is our only avenue to verify these details.
14
Your contentions seem directed to the manner in which Mr Pirani balanced the
competing public interests to ascertain that the factors favouring refusing access
outweighed the factors favouring access.
15
Nevertheless, I reviewed the entire decision about Document No. 2.
16
I found that Document No. 2 is in the nature of an opinion forecasting various cost
inputs likely to be incurred in conducting a plebiscite, prepared in the course of, or
for the purposes of, the deliberative processes involved in the functions, namely the
preparation of Document No. 3.
17
Subsection 47C(1) of the FOI Act conditionally exempts a document if its disclosure
under the FOI Act would disclose 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 the AEC (among other things).
18
I found that section 47C of the FOI Act applies to Document No. 2.
19
Subsection 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.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note:  An agency must publish its operational information (see section 8).
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This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not, including
reports expressing the opinions of such experts on scientific or technical matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
Note:  Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).
(a)
Operational information
20
Section 8A of the FOI Act provides:
8A  Information to be published—what is operational information?
(1)
An agency’s operational information is information held by the agency to
assist the agency to perform or exercise the agency’s functions or powers in
making decisions or recommendations affecting members of the public (or any
particular person or entity, or class of persons or entities).
Example:
The agency’s rules, guidelines, practices and precedents relating to those
decisions and recommendations.
(2)
An agency’s operational information does not include information that is
available to members of the public otherwise than by being published by (or on
behalf of) the agency.
21
The opinions expressed in Document No. 2 are ad hoc estimates of the costs of
conducting a plebiscite and offer no ongoing assistance to the AEC in exercising its
functions or powers. The impact of decisions made on the basis of Document No. 2
do not directly affect members of the public. The effect on members of the public
flows from the conduct of the plebiscite and not the cost of conducting it.
22
Accordingly, I found that the provisions in paragraph 47C(2)(a) of the FOI Act, does
not apply to Document No. 2.
(b) Purely factual material
23
An opinion is not a fact: see Harris’ Case. It is for this reason that paragraph
47C(3)(a) of the FOI Act expressly includes ‘reports expressing the opinions of such
experts on scientific or technical matters’.
24
However, the opinions expressed in Document No. 2 are based on expenditure by
the AEC in the financial years ending 30 June 2011 -15 which appear in that
document.
25
I found that the provisions in paragraph 47C(2)(b) of the FOI Act applies to
Document No. 2 in as much as it contains expenditure by the AEC in the financial
years ending 30 June 2011 -15.
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Non-application of subsection 47C(3)
26
It is self-evident that none of the provisions in subsection 47C(3) of the FOI Act apply
to Document No. 2.
(d)
Conclusion
27
Accordingly, I decided that:
(a)  access may be given to the expenditure by the AEC in the financial years
ending 30 June 2011 -15 appearing in Document No. 2; and
(b)  the remainder of Document No. 2 falls within the scope of the conditional
exemption for deliberative matter provided by section 47C of the FOI.
Weighing of public interest factors
28
Under subsection 11A(5) of the FOI Act, access to a document covered by a
conditional exemption must be given unless it would be contrary to the public
interest.
29
My weighing of public interest factors follows.
(a)  I considered the following factors favouring disclosure:
(i)
I took into account that the opinion about the forecast costing of a plebiscite
was published in Document No. 3.
(ii)
Your contentions quoted in paragraph 13 of this letter, namely:
(A)  ‘Australian Citizens and/or taxpayers have the right to be informed
as to how our tax dollars are spent.’
As Document No. 2 is a provisional forecast of what may be spent as
distinct from any accounting for the actual spending of money, I gave
this contention little weight.
(B)  ‘Many of us believe that the cost $154,000,000 is completely and
underestimated.’
As the forecast in Document No. 2 was made ahead of the decision as
to the shape of the plebiscite and the manner in which it is to be
conducted, it is obvious that the estimate would be revised when these
things are known. Knowing the basis of a speculative calculation made
ahead of the decision about the shape of the plebiscite and the manner
in which it is to be conducted is of little value in contributing to any public
discussion about the plebiscite.
(C)  ‘[W]e expect our rights to be protected. This is our only avenue to
verify these details.’
As the preliminary estimate in Document No. 2 was always subject to
revision once the shape of the plebiscite and the manner in which it is to
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protection of taxpayers rights.
(iii)  My findings that:
(A)  expenditure by the AEC in the financial years ending 30 June 2011 -
15 appearing in Document No. 2 is purely factual material;
(B)  the disclosure of the costing forecast in Document No. 3 achieves
the objects of the FOI Act expressed in sections 3 and 3A for the
purposes of paragraph 11B(3)(a) of the FOI Act in relation to
publishing the costing, and therefore little weight should be given to
this factor when striking a balance as to where the public interest lay
in giving access to Document No. 2;
(C)  the manner in which the opinion was arrived at is not of itself a
matter that would usefully inform public debate about the cost of the
plebiscite for the purposes of paragraph 11B(3)(b) of the FOI Act.
The cost of the plebiscite will only be ascertained once the plebiscite is
conducted and the expenses associated with it have crystallised.
Accordingly, I gave little weight to this factor when striking a balance as
to where the public interest lay in giving access to Document No. 2;
(D)  the breakdown of the various opinions about particular likely
expenses incurred in conducting a plebiscite would provide no useful
basis for oversight of the public expenditure incurred in relation to
the plebiscite for the purposes of paragraph 11B(3)(c) of the FOI Act.
I explain this point in paragraph 29(a)(i) of this letter.
(E)  the considerations required by paragraph 11B(3)(d) of the FOI Act
are not triggered by the subject matter of the FOI Request.
I was unable to identify any other consideration that I should take into account
that favours giving access to Document No. 2.
(b)  I considered the following factors that militate against disclosure:
(i)
A factor against giving access to Document No. 2 is that the public has no
discernible interest in knowing how the forecast of probable costs was
arrived at by the AEC beyond knowing the historic expenditure upon
which it is based.
(ii)
The public’s interest lies in knowing how a commitment for the purposes
of the PGPA Act is made. The forecast of probable costs of conducting
relates to a step before a commitment is made in respect of expenditure
that is incurred by the actual conduct of the plebiscite.
(iii)  The time for making a commitment in relation to the conduct of a
plebiscite will not arise until after passage of Commonwealth legislation
authorising the plebiscite. No such legislation has as yet been enacted.
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link to page 12 link to page 12 link to page 12 link to page 12 (b)  In accordance with subsection 11B(4) of the FOI Act I excluded from my
consideration the following matters:
(i)
access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(ii)
access to the document could result in any person misinterpreting or
misunderstanding the document;
(iii)  the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(iv)  access to the document could result in confusion or unnecessary debate.
30
In considering the weighing of public interest factors I had regard to the FOI
Guidelines at paragraphs 6.11 – 6.33.
31
It follows that the public interest factors against access outweigh the public interest
factors favouring access to Document No. 2. Accordingly, I decided to refuse to give
access to Document No. 2.
32
Accordingly, I am satisfied that the Document No. 2 is conditionally exempt under
subsection 47C(1) of the FOI Act and because disclosure would be contrary to the
public interest and that the documents should be treated as exempt from disclosure
under the FOI Act.
Preparation of an edited copy
33
In accordance with section 22 of the FOI Act I next considered whether it is both
possible and practicable to prepare an edited copy of Document No. 2  from which
the exempt material is redacted.
34
Section 22 of the FOI Act provides:
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
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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.
35
I had regard to paragraphs 3.85 – 3.90 of the FOI Guidelines.
36
I found that it is possible and practicable to prepare an edited copy of Document
No. 2 from which the exempt material is redacted.
Documents out of Scope of an FOI Request
37
Section 15 of the FOI Act enables a person to seek access, among other things, to a
document of an agency. The AEC is an agency for the purposes of the FOI Act.
38
I note that you made no contentions to refute the finding that the carve out in
paragraph (d) of the definition of ‘document’ provided by subsection 4(1) of the FOI
Act applies to Documents Nos 1, 3 and 4.
39
In so far as is material subsection 15(1) of the FOI Act provides:
15 Requests for access
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
40
Section 15A of the FOI Act makes provision with respect to requests for access to
personnel records and has no relevance to the FOI Request.
41
The expression ‘document of an agency’ is defined by subsection 4(1) of the FOI Act
and depends on the definition given by that subsection to the word ‘document’.
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In so far as is material, subsection 4(1) of the FOI Act provides:
4 Interpretation
(1)
In this Act, unless the contrary intention appears:
document of an agency: a document is a document of an agency if:
(a)
the document is in the possession of the agency, whether created in the
agency or received in the agency; or
(b) in order to comply with section 6C, the agency has taken contractual measures to
ensure that it receives the document.
document includes:
(a)
any of, or any part of any of, the following things:
(i)
any paper or other material on which there is writing;
(ii)
a map, plan, drawing or photograph;
(iii)
any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for persons qualified to interpret them;
(iv)
any article or material from which sounds, images or writings are capable
of being reproduced with or without the aid of any other article or device;
(v)
any article on which information has been stored or recorded, either
mechanically or electronically;
(vi)
any other record of information; or
(b)
any copy, reproduction or duplicate of such a thing; or
(c)
Any part of such a copy, reproduction or duplicate;
But does not include:
(d)
Material maintained for reference purposes that is otherwise publicly available;
or
(e)
Cabinet notebooks.
43
Documents Nos 1, 3 and 4 are material maintained for reference purposes
respectively by the Department of Finance (Document No 1) and the Department of
the Senate (Documents Nos 3 and 4) that are otherwise publicly available. The
description of each document in Annexure 1 indicates the URL for that document by
which it may be accessed.
44
It follows that the carve out in paragraph (d) of the definition of ‘document’ provided
by subsection 4(1) of the FOI Act applies to Documents Nos 1, 3 and 4 with the
outcome that none of those documents is included in the expression ‘document of an
agency’ and thus cannot be requested under subsection 15(1) of the FOI Act.
45
For this reason, I refused access to Documents Nos 1, 3 and 4.
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46
In paragraph 10 of this letter I indicated that I would offer you access to edited
copies of Document No. 2 from which exempt or irrelevant matter had been
redacted, the terms of that offer follow:
(a)  The offer remains open for 60 days from the date of this letter;
(b)  The offer is conditional that you accept the edited copies in satisfaction of you
FOI Request for the relevant document; and
(c)  The offer must be accepted in writing signed by you (this may be scanned and
sent by email to Owen Jones whose contact details are below).
47
If this offer is not accepted within the 60 day period, my decision to refuse access to
Document No. 2 will stand.
YOUR REVIEW RIGHTS
48
If you are dissatisfied with my decision, you may apply for Information Commissioner
review of the decision.
49
Under section 54N of the FOI Act, you may apply to the Australian Information
Commissioner to review my decision. An application for review by the Information
Commissioner must be made in writing within 60 days of the date of this letter, and
be lodged in one of the following ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 52189, Sydney NSW 2001
in person:
Level 3, 175 Pitt Street, Sydney NSW
50
More information about Information Commissioner review is available on the Office
of the Australian Information Commissioner website. Go to
www.oaic.gov.au/freedom-of-information/foi-reviews.
QUESTIONS ABOUT THIS DECISION
51
If you wish to discuss this decision, please contact Owen Jones, Senior Lawyer at:
email:
xxxx.xxxxx@xxx.xxx.xx
fax:
02 6293 7657
post:
Locked bag 4007, Canberra ACT 2601
telephone:
02 6271 4528
OUTCOME OF MR PIRANI’S PRACTICAL REFUSAL CONSULTATION
52
I note that you elected to pursue an internal review of Mr Pirani’s interim decision in
relation to Documents Nos 1 - 4 and did not respond to the invitation in Mr Pirani’s
letter to you of 14 September 2016 to discuss how you wished to proceed with the
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ANNEXURE 1.

SCHEDULE OF RETRIEVED DOCUMENTS IN RESPECT OF FOI REQUEST LS5744
Document
Description
Date
Recommendation/decision
No.

Budget related paper No. 1.7
[undated]
Portfolio Budget Statements 2013-14 Finance and

Deregulation Portfolio
1.1
Document No. 1 is published for reference by the public at
http://www.finance.gov.au/publications/portfolio-budget-statements/13-14/docs/finance-portfolio-pbs-
combined.pdf.
1.2
It follows that Document No. 1 is out of scope of the class of document that may be requested under Part
III of the FOI Act as a consequence of the operation of the carve out from the definition of ‘document’
provided by paragraph (d) of subsection 4(1) of the FOI Act.
1.3
Accordingly, I have decided to refuse access to Document No. 1.

Spreadsheet calculation of estimated costs
[undated]

2.1
Document No. 2 contains expenditure by the AEC in the financial years ending 30 June 2011 -15 which
is factual material.
2.2
As regards the remainder of Document No. 2, each entry is in the nature of an opinion about various cost
inputs, prepared in the course of, or for the purposes of, the deliberative processes involved in the
functions, namely the preparation of Document No. 2.
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2.3
It is possible and practicable to prepare a meaningful edited copy of Document No. 2 if the exempt
material is redacted.
2.4
Accordingly, I have decided to refuse access to Document No. 2 and offer in lieu access to an edited
copy of Document No. 2 from which exempt material is redacted.

Submission to the inquiry into the matter of a popular vote,
?/09/2015
in the form of a plebiscite or referendum, on the matter of

marriage in Australia
3.1
Document No. 3 is published for reference by the public at
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/M
arriage_Plebiscite/Submissions
3.2
A definition of ‘document’ is provided by f subsection 4(1) of the FOI Act unless a contrary intention
3.3
It follows that Document No. 3 is out of scope of the class of document that may be requested under Part
III of the FOI Act as a consequence of the operation of the carve out from the definition of ‘document’
provided by paragraph (d) of subsection 4(1) of the FOI Act.
3.4
Accordingly, I have decided to refuse access to Document No. 3.

Letter from Tom Rogers, Australian Electoral
14/09/2015
Commissioner to Sophie Dunstone, Committee Secretary,
Senate Legal and Constitutional Affairs Committee re
Australian Electoral Commission's (AEC) response to

Questions taken on Notice at the 10 September 2015
Senate inquiry into the matter of a popular vote, in the form
of a plebiscite or referendum, on the matter of marriage in
Australia
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4.1
Document No. 4 is published for reference by the public at
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/M
arriage_Plebiscite/Submissions
4.2
It follows that Document No. 4 is out of scope of the class of document that may be requested under Part
III of the FOI Act as a consequence of the operation of the carve out from the definition of ‘document’
provided by paragraph (d) of subsection 4(1) of the FOI Act.
4.3
Accordingly, I have decided to refuse access to Document No. 4.

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Document Outline