Mr Ron Andruff
Right to Know (
via email: f
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx)
17 November 2017
Dear Mr Andruff
Freedom of Information Request FOI 20‐1718 – Notice of Access Decision
I refer to your email of 15 September 2017 to the Department of Communications and the Arts
(the Department) requesting access to documents under section 15 of the
Freedom of
Information Act 1982 (
FOI Act).
I am an officer authorised by the Secretary under subsection 23(1) of the FOI Act to make
decisions about requests for access to documents under the FOI Act.
I have made a decision on your request, and provide you with notice in writing of my decision.
A.
BACKGROUND
1.
On 15 September 2017, you requested access to documents under section 15 of the FOI
Act. These documents are:
“…• a copy of the PPB Report;
• copies of any findings or reports relating to "the under‐reporting of FBT to the ATO"
as noted in item 4(a) of the minutes of the Board meeting held on 13 February 2017;
• internal meeting minutes or any other record (in any form) of matters discussed at in‐
camera discussions held during auDA's board meeting on 24 March 2016 relating to
the termination of the ex‐CEO Chris Disspain (excluding the board minutes dated 24
March 2016 which are published on the auDA website); and
• copies of any reports or other records relating to expenses incurred by the ex‐CEO
Chris Disspain during the period(s) the subject of the PPB Review and rational for
extensive international travel and explanation of benefit to auDA and the Australian
public in general…”
2.
On 21 September 2017, the Department acknowledged your request.
3.
On 3 October 2017, the First Assistant Secretary Arts advised the FOI Coordinator that
searches had identified documents in accordance with your request. This advice also stated that
GPO Box 2154 Canberra ACT 2601 Australia telephone 02 6271 1000 website communications.gov.au
arts.gov.au
the documents contained information that may be exempt from disclosure under the FOI Act, and
that the Department may need to consult third parties potentially affected by disclosure.
4.
The requested documents, identified through searches of departmental electronic
document management, email and parliamentary correspondence systems, are listed in the
Schedule of Documents at Attachment A.
5.
On 6 October 2017, the Department gave you notice that you are liable to pay a charge
under section 29 of the FOI Act, and provided a preliminary charge assessment of $225.72. As this
amount exceeds $100, you must pay a deposit of 25 per cent ($56.43).
6.
The Department received your payment by direct debit on 18 October 2017. On
19 October 2017, the Department sent you Receipt No. 8811391 (dated 18 October 2017) for
payment of a deposit of $56.43 and notified you of the extension of the processing period to
consult third parties potentially affected by disclosure.
7.
On 26 October 2017, the Department initiated external consultation with an affected
third party under section 27 of the FOI Act.
8.
On 3 November 2017, the Department received a request from the third party for an
extension of time to respond to the consultation request. On the same day, the Department
received notice of approval of the Department’s request for an extension of the processing period
under section 15AB of the FOI Act.
9.
On 14 November 2017, the Department received exemption contentions from the
affected third party (I will refer to this as Contention 1).
10.
On 15 November 2017, in response to an internal consultation request, the First
Assistant Secretary Arts advised the FOI Coordinator:
“… the Department’s working relationship with auDA and our role as observer on the
auDA board relies on access to information which the auDA board would reasonably
expect to remain confidential. This is particularly important at this time as the
Department commences a review of auDA on behalf of the Minister.”
B.
DECISION
11.
I have decided to refuse to give access to the documents you requested as follows:
a.
documents number 1, 2, 4, 5, 6, 9 and 12 in part are exempt under section 22 of
the FOI Act, and an edited copy cannot be prepared with the exempt material
deleted, to which access would be required to be given by section 11A of the FOI
Act;
b.
documents number 1, 3, 9 and 13 in part and documents number 10 and 11 in full
are exempt under section 42 of the FOI Act, and an edited copy cannot be prepared
with the exempt material deleted, to which access would be required to be given
by section 11A of the FOI Act;
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c.
document number 9 in part is exempt under section 47C of the FOI Act, and an
edited copy cannot be prepared with the exempt material deleted, to which access
would be required to be given by section 11A of the FOI Act;
d.
documents number 1, 3, 4, 5, 6, 7, 8, 12 and 13 in part are exempt under
section 47F of the FOI Act, and an edited copy cannot be prepared with the exempt
material deleted, to which access would be required to be given by section 11A of
the FOI Act; and
e.
documents number 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in full are exempt under
section 47G of the FOI Act.
C.
MATERIAL ON WHICH MY DECISION IS BASED
12.
I base my decision on the following material:
a.
your access request, dated 15 September 2017;
b.
the documents identified by the Department as relevant to your access request;
c.
the relevant provisions of the FOI Act;
d.
the
Australian Information Commissioner’s FOI Guidelines made under section 93A
of the FOI Act (the ‘FOI Guidelines’);
e.
relevant case law;
f.
the Department’s
FOI Policy;
g.
information and advice from the Department’s FOI Coordinator;
h.
information and advice from officers within the Department’s Arts Division; and
i.
exemption contentions made by third parties potentially affected by the decision.
D.
FINDINGS ON MATERIAL QUESTIONS OF FACT
13.
I find that the requested documents, identified through searches of departmental
electronic document management and email systems, are listed in the Schedule of Documents at
Attachment A.
E.
REASONS FOR DECISION
Section 22 – Deletion of Exempt or Irrelevant Material
14.
Section 22 of the FOI Act provides that if the Department decides to refuse to give access
to an exempt document, or that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access, then, where it is possible
and reasonably practicable to prepare an edited copy of the document modified by deletions,
then the Department must prepare and give you access to that edited copy.
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15.
I find that the following documents would disclose information that would reasonably
be regarded as irrelevant to your request:
a.
documents number 1, 4, 5, 6, 9 and 12 in part contain personal identifying
information that you agreed to exclude from your request, such as the names and
contact details of non‐SES departmental officers; and
b.
document number 2 in part contains information that is not in accordance with
your request.
Section 42 – Exemption – Legal professional privilege
16.
I have considered whether documents in accordance with your request are of such a
nature that they would be privileged from production in legal proceedings on the ground of legal
professional privilege. If so, the documents would be exempt under section 42 of the FOI Act.
17.
Contention 1 claimed that documents number 10 and 11 are exempt from disclosure on
this basis, and provided specific examples of the potential impact of disclosure.
18.
I have examined the documents and find that documents number 1, 3, 9 and 13 in part
and documents number 10 and 11 in full are documents containing material that would be
privileged from production in legal proceedings on the ground of legal professional privilege.
19.
As such, documents number 1, 3, 9 and 13 in part and documents number 10 and 11 in
full are exempt from disclosure under the FOI Act.
Section 47C – Public interest conditional exemption – Deliberative processes
20.
I have considered whether disclosure under the FOI Act of the documents in accordance
with your request 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 an agency. If so, the documents would be conditionally exempt documents under section 47C
of the FOI Act.
21.
The
FOI Guidelines at paragraphs 6.52‐6.88 provide guidance on the application of this
conditional exemption.
22.
I have examined the documents and find that document number 9 in part is a document
containing opinion, advice and a recommendation prepared in the course of, or for the purposes
of, the deliberative processes involved in the functions of an agency; namely, departmental
involvement in Internet governance and domain name administration.
23.
The
FOI Guidelines at paragraphs 6.60 state that “the functions of an agency are usually
found in the Administrative Arrangements Orders or the instrument or Act that established the
agency”. In this case, Internet governance and domain name administration is within the meaning
of the term “postal and telecommunications policies and programmes”, which is a matter dealt
with by the Department of Communications and the Arts (see Administrative Arrangements
Orders dated 1 September 2016, C2017Q00008).
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24.
I am therefore satisfied that the relevant part of document number 9 contains
deliberative matter and is conditionally exempt under section 47C of the FOI Act.
Application of the public interest test
25.
This conditional exemption requires application of the public interest test.
Public interest factors in favour of disclosure
26.
Factors favouring access to the document in the public interest include whether access
to the document would:
a.
promote the objects of the FOI Act (set out at section 3);
b.
inform debate on a matter of public importance;
c.
promote effective oversight of public expenditure;
d.
allow a person to access his or her own personal information.
27.
Applying these considerations to the relevant parts of document number 9:
a.
disclosure of this part of the document would promote the objects of the FOI Act,
but only to a limited extent;
b.
disclosure of this part of the document would inform debate on a matter of public
importance (Internet governance and domain name administration), but only to a
limited extent;
c.
disclosure of this part of the document would not promote effective oversight of
public expenditure, as it does not relate to public expenditure; and
d.
disclosure of this part of the document would not allow a person to access his or
her own personal information, as it does not pertain to any personal information.
Public interest factors against disclosure
28.
The
FOI Guidelines at paragraph 6.22 set out a non‐exhaustive list of factors against
disclosure.
29.
It is relevant that the deliberative material in question itself substantially consists of
information that is otherwise conditionally exempt under section 47F and/or section 47G of the
FOI Act.
30.
I have taken into account the following public interest factors against disclosure:
a.
disclosure of the information could reasonably be expected to prejudice the
protection of an individual’s right to privacy without providing a right to correct
the information or a right of response to the opinion;
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b.
disclosure of the information could reasonably be expected to prejudice the fair
treatment of individuals to the extent that the information is about
unsubstantiated allegations of misconduct or unlawful, negligent or improper
conduct;
c.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain confidential information from the affected third party and generally;
d.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain similar information in future from the affected third party and generally;
and
e.
disclosure of the information could reasonably be expected to harm the interests
of an individual or group of individuals named in the document.
31.
The
FOI Guidelines at paragraphs 6.55‐6.56 discuss the assessment of ‘harm resulting
from disclosure’ in the context of the public interest factors. Disclosure of the relevant part of
document number 9 would have similar harm to that outlined in my consideration of section 47F
and section 47G.
Irrelevant factors
32.
Subsection 11B(4) of the FOI Act sets out factors that I must not take into account in
applying the public interest test to the above identified conditional exemptions.
33.
I have not taken these irrelevant factors into account in making my decision.
Balancing public interest factors
34.
There are limited public interest factors in favour of disclosure.
35.
On the other hand, there are strong public interest factors against disclosure.
36.
Weighing all factors, I find that on balance, disclosure of the relevant part of document
number 9 would not be in the public interest and therefore that the material is exempt under
section 47C of the FOI Act.
Section 47F – Public interest conditional exemption – Personal privacy
37.
I have considered whether disclosure under the FOI Act of the documents in accordance
with your request would involve the unreasonable disclosure of personal information about any
person (including a deceased person). If so, the documents would be conditionally exempt
documents under section 47F of the FOI Act.
38.
The FOI Act at section 4 states that personal information has the same meaning as in the
Privacy Act 1988. Section 6 of the Privacy Act states that personal information means information
or an opinion about an identified individual, or an individual who is reasonably identifiable:
a.
whether the information or opinion is true or not; and
b.
whether the information or opinion is recorded in a material form or not.
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39.
Contention 1 claimed that all documents should be exempted on this basis “where there
might be unreasonable disclosure of personal information”. However, Contention 1 did not
provide any evidence to support this broad contention. Notwithstanding this, due to the nature
of the information in the documents, I have considered the application of this conditional
exemption to that information.
40.
The
FOI Guidelines at paragraphs 6.124‐6.179 provide guidance on the application of this
conditional exemption.
41.
This conditional exemption has two threshold tests that must be satisfied.
42.
First, there must be a disclosure of personal information about any person (including a
deceased person).
43.
I have examined the documents and find that documents number 1, 3, 4, 5, 6, 7, 8, 9, 10,
11 and 12 in part contain personal information. The information consists of both ‘information’
and ‘opinion’ within the meaning of the
Privacy Act 1988, including names of people attending
board meetings, information about their employment as board members, details of their opinions
about board matters, and information and opinions held by people about other people. The
personal information includes information that is in accordance with your request as well as
information that is irrelevant material within the meaning of section 22.
44.
Second, the disclosure of personal information must be unreasonable. The
FOI Guidelines
at paragraph 6.138 make it clear that this threshold test does not amount to the public interest
test of subsection 11A(5), which follows later in the decision making process.
45.
Subsection 47F(2) of the FOI Act sets out the matters to which an agency must have
regard, and these are also referenced in subsection 27A(2) of the FOI Act and the
FOI Guidelines at paragraphs 6.140‐6.141.
46.
These factors include:
a.
the extent to which the information is well known;
b.
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
c.
the availability of the information from publicly accessible sources; and
d.
any other matters that the agency or Minister considers relevant.
47.
Applying these considerations first to the ‘information’ about identified individuals:
a.
it is reasonable to assume that a limited amount of the information is well known
(such as information that a person is a board member); however, the context in
which the information appears may not be well known, and most of the remaining
information would not be well known;
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b.
there is no evidence that the people to whom the information relates are known
to be (or to have been) associated with the matters dealt with in the documents in
other than broad and general terms; and
c.
some of this information may be available from publicly accessible sources (such
as names of people), but other information is not likely to be available from
publicly accessible sources (such as contact details or information about their
employment as board members).
48.
Applying these considerations second to the ‘opinion’ about identified individuals:
a.
there is no evidence that the opinion is well known, and the context of the
documents suggests that the opinion is not well known;
b.
there is no evidence to suggest that the person to whom the opinion information
relates is known to be (or to have been) associated with the matters dealt with in
the document; and
c.
there is no evidence to suggest that the opinion information is available from
publicly accessible sources.
49.
The
FOI Guidelines at paragraph 6.139 quote the Administrative Appeals Tribunal in
Re
Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at 259 that “whether a
disclosure is ‘unreasonable’ requires … a consideration of all the circumstances, including the
nature of the information that would be disclosed, the circumstances in which the information
was obtained, the likelihood of the information being information that the person concerned
would not wish to have disclosed without consent, and whether the information has any current
relevance”.
50.
Applying the
Chandra considerations to these documents:
a.
it would be unreasonable to disclose information/opinion of the nature in question
as this could reasonably be expected to prejudice the protection of an individual’s
right to privacy;
b.
the circumstances in which the information/opinion was obtained do not suggest
that disclosure would be considered reasonable;
c.
it is likely that that the people concerned would not wish to have the
information/opinion disclosed without consent, and this is confirmed by
Contention 1; and
d.
the information has current relevance, as it dates to 2016, and noting the advice
from the First Assistant Secretary Arts that a government review is underway.
51.
Finally, the
FOI Guidelines at paragraphs 6.142‐6.148 provide ‘key factors’ and ‘other
factors’ to which an agency may have regard in determining whether disclosure of a document
would involve an unreasonable disclosure of personal information, including those arising from
relevant jurisprudence.
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52.
Applying these ‘key factors’ and ‘other factors’:
a.
the documents contain third party personal information that it would be
unreasonable to disclose;
b.
the information has current relevance, as it dates to 2016, and noting the advice
from the First Assistant Secretary Arts that a government review is underway;
c.
disclosure of the information could cause detriment to the people to whom the
information relates;
d.
the Department collected the information in a context of confidentiality and not
for the purposes of disclosure; and
e.
disclosure of this personal information is of no demonstrable relevance to the
affairs of government and is more likely “to do no more than excite or satisfy the
curiosity of people about the person whose personal affairs were disclosed”
(following Heerey J in
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, cited in the
FOI Guidelines at paragraph 6.144).
53.
For the reasons outlined above, disclosure under the FOI Act of documents number 1, 3,
4, 5, 6, 7, 8, 9, 10, 11 and 12 in part would involve the unreasonable disclosure of personal
information about a person.
54.
I am therefore satisfied that documents number 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in part
are conditionally exempt under section 47F of the FOI Act.
Application of the public interest test
55.
This conditional exemption requires application of the public interest test.
Public interest factors in favour of disclosure
56.
Factors favouring access to the document in the public interest include whether access
to the document would:
a.
promote the objects of the FOI Act (set out at section 3);
b.
inform debate on a matter of public importance;
c.
promote effective oversight of public expenditure; or
d.
allow a person to access his or her own personal information.
57.
Applying these considerations to the relevant parts of the documents:
a.
disclosure of the personal information in these documents would not promote the
objects of the FOI Act, but may undermine confidence in the operation of the
conditional exemption provisions of the FOI Act;
9
b.
disclosure of the documents may inform debate on a matter of public importance,
namely Internet governance and domain name administration, noting however
that there is a review underway into the same matters;
c.
disclosure would not promote effective oversight of public expenditure, as the
documents do not relate to public expenditure; and
d.
disclosure would not allow a person to access his or her own personal information,
as the documents do not relate to the personal information of the applicant.
Public interest factors against disclosure
58.
The
FOI Guidelines at paragraph 6.22 set out a non‐exhaustive list of factors against
disclosure.
59.
I have taken into account the following public interest factors against disclosure:
a.
disclosure of the information could reasonably be expected to prejudice the
protection of an individual’s right to privacy without providing a right to correct
the information or a right of response to the opinion;
b.
disclosure of the information could reasonably be expected to prejudice the fair
treatment of individuals to the extent that the information is about
unsubstantiated allegations of misconduct or unlawful, negligent or improper
conduct;
c.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain confidential information from the affected third party and generally; and
d.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain similar information in future from the affected third party and generally.
Irrelevant factors
60.
Subsection 11B(4) of the FOI Act sets out factors that I must not take into account in
applying the public interest test to the above identified conditional exemptions.
61.
I have not taken these irrelevant factors into account in making my decision.
Balancing public interest factors
62.
There is a limited public interest factor in favour of disclosure.
63.
On the other hand, there are strong public interest factors against disclosure.
64.
Weighing all factors, I find that on balance, disclosure of documents number 1, 3, 4, 5, 6,
7, 8, 9, 10, 11 and 12 in part would not be in the public interest and therefore that the documents
are exempt under section 47F of the FOI Act.
65.
For documents number 1, 3, 4 (attachment), 6 (attachment), 7, 8 and 12 it appears from
the context of the documents that a redacted version of these documents may have been
10
published by the document’s originator. These published versions would have either published
information, or would have redacted the same information as would be conditionally exempt
from disclosure. As such, it would be unnecessary to prepare an edited version of these
documents under section 22.
Section 47G – Public interest conditional exemption – Business
66.
I have considered whether disclosure under the FOI Act of documents in accordance with
your request would disclose information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs of an organisation
or undertaking. If so, the documents may be conditionally exempt documents under section 47G
of the FOI Act.
67.
The
FOI Guidelines at paragraphs 6.180‐6.213 provide guidance on the application of this
conditional exemption.
68.
Contention 1 claimed that documents 1, 3, 10 and 11 are exempt from disclosure under
section 47G on the basis that they “are internal and confidential…Board documents which, if
released, would disclose business information including…commercial and financial affairs, in
addition to…internal performance management processes. The release of this information would
be adverse to the lawful business operations…as it would adversely impact on…future decision‐
making processes and would reasonably be expected to prejudice the future supply of
information to the Commonwealth”.
69.
Contention 1 further claimed that documents 2, 8 and 9 are also exempt from disclosure
under section 47G on the basis that they “are internal and confidential communications between
[the third party] and the Department and the release of these documents would reasonably be
expected to prejudice the future supply of information to the Commonwealth”.
70.
Contention 1 further claimed that documents 4, 5, 6, 7 and 10 are also exempt from
disclosure under section 47G on the basis that they “confidential, internal Board documents
which have been distributed to assist the Board with its decision making. The release of these
documents would also prejudice the future supply of information to the Commonwealth and
would unreasonably affect…future lawful business and decision‐making process”.
71.
I have examined the documents and find that documents number 1, 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12 and 13 contain information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs of an organisation
or undertaking.
72.
This information is not business information about the applicant (subsection 47G(3)),
and does not include trade secrets under section 47 (subsection 47G(2)).
Unreasonably adversely affect a person, organisation or undertaking
73.
A document may be conditionally exempt under section 47G of the FOI Act in a case in
which the disclosure of the information “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”.
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74.
Paragraph 6.186 of the
FOI Guidelines states that the term ‘could reasonably be
expected’ refers to an expectation that is based on reason, and that mere assertion or speculative
possibility is not enough.
75.
Contention 1 provided reasons why disclosure of certain documents would unreasonably
adversely affect a person, organisation or undertaking. These are outlined above.
76.
The
FOI Guidelines at paragraph 6.191 state that “where disclosure would result in the
release of facts already in the public domain, that disclosure would not amount to an
unreasonable adverse effect on business affairs”.
77.
While redacted versions of similar documents may have been published previously, the
documents in accordance with your request have different provenance, and were provided
without redaction directly to the Commonwealth for the purpose of the administration of matters
administered by an agency; namely, Internet governance and domain name administration as a
component of “postal and telecommunications policies and programmes”.
78.
The
FOI Guidelines at paragraph 6.192 state that the “use of the term ‘business or
professional affairs’ distinguishes an individual’s personal or private affairs and an organisation’s
internal affairs”, and contrast this with information about the internal affairs of an organisation
including its governance processes.
79.
I have examined documents number 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, and consider
there is a rational basis to conclude that disclosure of these documents would have an adverse
effect, and that effect would be unreasonable. Disclosure would result in the release of
information not already in the public domain. Further, the documents relate to the business
affairs of individuals and organisations named in the documents, and not merely to the internal
affairs of the organisation and governance processes of those individuals and organisations.
80.
Therefore, I find that disclosure under the FOI Act of documents number 1, 2, 3, 4, 5, 6,
7, 8, 9, 10, 11, 12 and 13 would, and could reasonably be expected to, unreasonably adversely
affect a person, organisation or undertaking.
Prejudice the future supply of information
81.
A document may be conditionally exempt under section 47G of the FOI Act in a case in
which the disclosure of the information “could reasonably be expected to prejudice the future
supply of information to the Commonwealth 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”.
82.
The
FOI Guidelines at paragraph 6.198 state that this limb of the conditional exemption
comprises two parts.
83.
First, there must be a reasonable expectation of a reduction in the quantity or quality of
business affairs information to the government.
84.
Contention 1 provided reasons why disclosure of certain documents could reasonably be
expected to prejudice the future supply of information to the Commonwealth or an agency for
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the purpose of the administration of matters administered by an agency. These are outlined
above.
85.
The
FOI Guidelines at paragraph 6.200 state that no claim of prejudice can be made
where the business information in question can be obtained compulsorily, or is required for some
benefit or grant. In this case, there is no evidence that the affected third party is under a statutory
or other legal obligation to provide the documents to the Commonwealth. Therefore, it is open
to the affected third party to make a claim of prejudice.
86.
Second, the reduction must prejudice the operations of the Department.
87.
The
FOI Guidelines at paragraph 6.201 state that “the agency will usually be best placed
to identify, and be concerned about the circumstances where the disclosure of documents might
reasonably be expected to prejudice the future supply of information to it”.
88.
I have placed considerable weight on the advice of the First Assistant Secretary Arts that
disclosure of the documents would prejudice the operations of the Department. In particular, the
conduct of a current government review would be adversely affected by a reduction in the
quantity or quality of business affairs information to the government.
89.
I have examined documents number 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, and consider
disclosure of these documents would prejudice the future supply of information to the
Commonwealth.
90.
I am therefore satisfied that documents number 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13
are conditionally exempt under section 47G of the FOI Act.
Application of the public interest test
91.
This conditional exemption requires application of the public interest test.
Public interest factors in favour of disclosure
92.
Factors favouring access to the document in the public interest include whether access
to the document would:
a.
promote the objects of the FOI Act (set out at section 3);
b.
inform debate on a matter of public importance;
c.
promote effective oversight of public expenditure;
d.
allow a person to access his or her own personal information.
93.
I have taken into account the following public interest factors in favour of disclosure:
a.
disclosure of the business information in these documents would not promote the
objects of the FOI Act, but may undermine confidence in the operation of the
conditional exemption provisions of the FOI Act;
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b.
disclosure of the documents may inform debate on a matter of public importance,
namely Internet governance and domain name administration, noting however
that there is a government review currently underway into the same matters;
c.
disclosure would not promote effective oversight of public expenditure, as the
documents do not relate to public expenditure; and
d.
disclosure would not allow a person to access his or her own personal information,
as the documents do not relate to the personal information of the applicant.
Public interest factors against disclosure
94.
The
FOI Guidelines at paragraph 6.22 set out a non‐exhaustive list of factors against
disclosure.
95.
I have taken into account the following public interest factors against disclosure:
a.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain confidential information from the affected third party and generally;
b.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain similar information in future from the affected third party and generally;
c.
disclosure could reasonably be expected to prejudice the Department’s ability to
obtain information for a current government review into Internet governance and
domain name administration; and
d.
disclosure could reasonably be expected to harm the interests of an individual or
group of individuals named in the documents.
Irrelevant factors
96.
Subsection 11B(4) of the FOI Act sets out factors that I must not take into account in
applying the public interest test to the above identified conditional exemptions.
97.
I have not taken these irrelevant factors into account in making my decision.
Balancing public interest factors
98.
There is a limited public interest factor in favour of disclosure.
99.
On the other hand, there are strong public interest factors against disclosure.
100.
Weighing all factors, I find that on balance, disclosure would not be in the public interest
and therefore that the documents are exempt under section 47G of the FOI Act.
101.
For documents number 1, 3, 4 (attachment), 6 (attachment), 7, 8 and 12 it appears from
the context of the documents that a redacted version of these documents may have been
published by the document’s originator. These published versions would have either published
information, or would have redacted the same information as would be conditionally exempt
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from disclosure. As such, it would be unnecessary to prepare an edited version of these
documents under section 22.
F.
CHARGE
102.
The Australian Information Commissioner’s fact sheet 7 states that “if you paid a deposit
and the agency decides not to grant you access to any document, you are not entitled to a refund
of the deposit”.
G.
REVIEW RIGHTS
103.
This decision may be subject to review under section 54, section 54A, section 54L or
section 54M of the FOI Act. I have attached the Office of the Australian Information
Commissioner’s
FOI fact sheet 12: Your review rights.
104.
I have also directed that a copy of this decision, with your details redacted, is provided
to the affected third party.
Yours sincerely
Legal Director
Office of the General Counsel
Position Number 112404
Attachment A
Schedule of Documents
Attachment B
FOI fact sheet 12: Your review rights
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