www.oaic.gov.au
GPO Box 5218 Sydney NSW 2001
P +61 2 9284 9800 F +61 2 9284 9666
E xxxxxxxxx@xxxx.xxx.xx
Enquiries 1300 363 992 TTY 1800 620 241
ABN 85 249 230 937
Our reference: FOIREQ16/00046
Dear Ms Pane,
Outcome of your Freedom of Information request
I refer to your request for access to documents under the
Freedom of Information
Act 1982 (Cth) (the FOI Act).
Background
On 25 October 2016, you made the fol owing request through the
www.righttoknow.org.au
website:
In the ABS' written responses to Questions on Notice for Senate Inquiry into the 2016 Census,
the ABS stated "A wide range of government agencies were consulted during the development
and implementation of the 2016 Census including but not limited to the Office of the
Australian Information Commissioner".
I request copy of those records held by the OAIC that relate to those consultations that the
ABS said it had with the OAIC, particularly in relation to the linkages of Census collected
information to other external data collections of PI. Given the privacy issues fallout relating to
the considerably expanded scope of how the ABS intends to use Census data to leverage other
PI held by other bodies, which is not related to the primary purposes of collection of that data,
there is a considerable and significant public interest factor.
I request that the OAIC provide a schedule of all documents falling within the scope of this FOI
request, as part of the FOI decision, as strongly recommended in the OAIC's FOI Guidelines to
agencies.
On 1 November 2016, the OAIC acknowledged your request and confirmed that the decision
is due to be provided to you by 24 November 2016.
On 23 November 2016, the OAIC wrote to you to:
• confirm the scope of your request and
• seek your agreement to extend the processing time under s 15AA of the FOI Act, due
to consultations with the Australian Bureau of Statistics that do not fal within the
consultation provisions of ss 26A, 27 and 27A which extend the processing time.
On the same day, you advised that you agreed to exclude duplicate copies of the documents,
and direct email addresses and telephone numbers of officers from the scope of your request.
You advised that you did not agree to an extension of time.
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My decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have identified 45 documents fal ing within the scope of your request. I have decided to give
you access to all 45 documents in part (the documents). In making my decision, I have relied
on the exemption of certain persons and bodies provision (s 7) and the certain operations of
agencies exemption (s 47E(d)) of the FOI Act.
The documents wil be edited under s 22 of the FOI Act to delete exempt material and
material irrelevant to your request. The edited copy, along with a detailed schedule will be
sent to you within 7 days from this decision.
I have set out my reasons for this decision below.
Reasons for decision
Provision of an edited copy of exempt document with exempt and irrelevant material
deleted – section 22
Section 22 of the FOI Act provides that where an agency decides that it is it is possible for the
agency to prepare an edited copy of a document, modified by deletions to remove exempt
and irrelevant material, and it is reasonably practicable to do so, the agency must prepare the
edited copy and give the applicant access to the edited copy.
As I have discussed above, I have decided to prepare and give you access to an edited copy of
each of the 45 documents that are within the scope of your request with exempt and
irrelevant material deleted.
Exemption of certain persons and bodies – section 7
Section 7 of the FOI Act provides that bodies specified in Division 1 of Part 1 of Schedule 2 of
the FOI Act are not prescribed authorities for the purposes of the FOI Act. The definition of
‘agency’ in s 4 includes a ‘prescribed authority’ and the definition of ‘exempt document’ in s 4
includes a document in respect of which, by virtue of s 7, an agency is exempt from the
operation of the FOI Act.
The documents include summary of information from an intelligence agency. That agency is
specified in Division 1 of Part 1 of Schedule 2. Therefore, by operation of ss 7 and 22,
information from the intel igence agency is exempt material that will be edited from the
documents.
Conditional exemption – certain operations of agencies
The FOI Act contains a number of exemptions known as ‘conditional exemptions’. If a
document fal s within a conditional exemption, the OAIC must give you access to the
document unless doing so at this time would, on balance, be contrary to the public interest (s
11A(5)).
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Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its 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.
The documents contain some material that identifies and describes ABS IT infrastructure and
security protocols.
If information relating to ABS IT infrastructure and protocols were to enter the public domain,
it could reasonably be expected that this information would be sought out by computer
hackers, or other individuals with a malicious intent who could reasonably be expected to use
such information in attempts at circumventing ABS computer security. Given the events of
census night, I am satisfied that the threats posed by such individuals is real and that if the
security protocols were released attempts at cyber intrusion would be likely to occur.
For this reason, I am satisfied that disclosing material relating to the ABS’s IT infrastructure
and security protocols would have a substantial adverse effect on the proper and efficient
conduct of the operations of the ABS, and that the relevant documents are conditionally
exempt under section 47E(d) of the FOI Act.
The public interest test
In finding that the documents contains conditionally exempt material, I am therefore required
to consider whether it would be contrary to the public interest to give you access to a
conditionally exempt document at this time (s 11A(5)).
Section 11A(5) provides that the OAIC must give you access to a conditional y exempt
document unless (in the circumstances) access to the document at that time of my decision
would, on balance, be contrary to the public interest.
In assessing whether the disclosure of a document would be contrary to the public interest, I
must balance any public interest factors for and against disclosure.
Of the public interest factors favouring disclosure listed in s 11B(3) of the FOI Act, two are
relevant in this decision. Disclosure would:
• promote the objects of the FOI Act, including increasing scrutiny, discussion, comment
and review of the government’s activities, and
• inform debate on a matter of public importance
Factors against disclosure include the public interest in the ABS maintaining secure
information and data handling systems.
In this case, I am satisfied that the public interest factor against disclosure should be given
substantial weight. The public interest is against disclosure.
Giving you access to the material that I have decided is conditionally exempt would, on
balance, be contrary to the public interest.
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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 wil 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
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 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 (AAT).
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.
It is the Information Commissioner’s view that it wil usual y 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 AAT.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you may submit your application by email to
xxxxxxxxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
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Yours sincerely
Rocelle Ago
Director
Dispute Resolution Branch
24 November 2016
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Document Outline