FOI 144 17 18 SOR.PDF.pdf

Reference: R32942024
FOI 144/17/18 STATEMENT OF REASONS UNDER THE FREEDOM OF
INFORMATION ACT
1.
I refer to the application by Ms Mona Krombholz under the Freedom of Information Act
1982 (FOI Act), for access to:
“…In relation to Defence Fraud Control and Investigations Branch (FCIB)
investigation (investigation) [Reference: IR-DWS01-DI-2014-54] undertaken
consequent upon my public interest disclosure made to the Commonwealth Ombudsman
under the Public Interest Disclosure Act 2013(Cth) [Reference: PID (2014-100004),

1. Any document recording any approval given by any Defence delegate (including
the identity of the delegate who gave the approval) in relation to the investigation,
including any approval given by the Secretary, Chief of Defence Force (CDF); Chief
Audit Executive (renamed First Assistant Secretary Fraud Control (FASFC)); Inspector
General of Defence (renamed Assistant Secretary Fraud Control (ASFC));

2. Any document recording the identity of any agency, including any officer of any
agency, who received a copy of any report produced in relation to the investigation,
including but not limited to correspondence with Clayton Utz and the Australian
Government Solicitor; and

3. Any item of ministerial correspondence produced in relation to the investigation.

The date range for the request is 1 January 2014 to 16 October 2017. Documents are
limited to those held by the office of the Secretary, office of the CDF, Audit and Fraud
Division, office of Defence Legal, office of Defence People Group and office of Estate
and Infrastructure Group.
excluding personal email addresses, signatures, PMKeys numbers and mobile telephone
numbers, contained in documents that fall within the scope of the FOI request. In
addition, excluding duplicates of documents and documents sent to or from the
applicant.”
FOI decision maker
2.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
3.
Six documents were identified in response to Item 1 of the request. Item 1, Serial 1 was
a 56 page investigation report that was considered in response the applicant’s previous request
FOI 191/17/18. This document is prevented from being released in accordance with
section 27A(6) of the FOI Act. As such, I have not considered this document as part of this
FOI request.

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4.
Item 1, Serial 2 was a 13 page executive summary of the above investigation report
(Item 1 Serial 1). Noting the contents of this document are the same as the document subject
to review rights and another FOI request I have only considered one page of the document
that indicates the approval given.
5.
In relation to Item 2 of the applicant’s request, I have interpreted ‘any report’ to be ‘any
investigation report’.
6.
I identified seven documents as matching the description of Item 2 of the request. No
documents were identified for Item 3.
7.
I have added an FOI reference number and Item/Serial number to each of the
documents.
Decision
8.
I have decided to:
a.  partially release 12 documents in accordance with section 22 [access to edited
copies with exempt or irrelevant matter deleted] of the FOI Act, on the grounds
that the deleted material is considered exempt under section 47F [public
interest conditional exemptions-personal privacy] and/or section 47E(d)
[public interest conditional exemptions-operations of an agency] and/or 47G
[public interest conditional exemptions-business information] of the FOI Act;
and
b.  refuse access to Item 3 of the request under subparagraph
24A(1)(b)(ii)[Requests may be refused if documents cannot be found, do not
exist or have not been received] of the FOI Act.
9.
Further to the above, I have removed irrelevant material as referred to in the scope of
the request in accordance with section 22(1)(b)(ii) of the FOI Act.
Material taken into account
10.  In making my decision, I had regard to:
a.  the terms of the request;
b.  the content of the identified documents in issue;
c.  relevant provisions in the FOI Act;
d.  the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines); and
e.  advice from the Office of the Secretary and Chief of the Defence Force,
Defence Legal, Audit and Fraud Division, Defence People Group and Estate
and Infrastructure Group.
Reasons for decision
Section 47E – Certain operations of agencies
11.  Subsection 47E(d) of the FOI Act provides as follows:

A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected, to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.

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12.  Unauthorised disclosure of information potentially identifying the individuals involved
in the investigation and information detailing how the investigation is conducted, could
reasonably be expected to have a substantial adverse effect on the Department’s management
of other complaints that are received through the Defence’s Public Interest Disclosure (PID)
Scheme.

13.  The release of information that could identify, or potentially identify a complainant, or
other individuals identified during the course of Defence’s investigation, could reasonably be
expected to affect the willingness of individuals to provide information to Defence for the
purpose of investigating complaints. This could reasonably result in a perception that
Defence lacks integrity with respect to protecting the confidentiality of investigation records;
thus affecting the proper and efficient conduct of the operations of Defence.

14.  The disclosure of the information subject to this FOI application could reasonably be
expected to affect Defence’s ability to investigate disclosures made pursuant to the PID Act
2013. Release of PID information could result in prejudice against the activities of the Fraud
Control & Investigations Branch and affect the ongoing operation of the Defence PID
Scheme. Investigating allegations of unacceptable behaviour and actioning any findings are
an essential aspect of Defence’s operations.

15.  Consequently, I have decided that the material is conditionally exempt under section
47E(d) of the FOI Act.

16.  Subsection 11A(5) of the FOI Act requires Defence to allow access to a conditionally
exempt document unless, in the circumstances, access to the document would, on balance, be
contrary to the public interest. My public interest arguments are detailed below.

Section 47F - Personal privacy
17.  Section 47F(1) conditionally exempts a document if its disclosure would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
18.  Personal information is defined in section 4 of the FOI Act as having the same meaning
as that defined in the Privacy Act 1988 which is:
Information of 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.
19.  Upon examination of the documents, I found that they contained the names and other
identifying information of individuals involved in the investigation. I consider that the release
of such information would constitute an unreasonable disclosure of personal information. In
accordance with subsection 47F(2) of the FOI Act, in determining whether the disclosure of
this information would involve the unreasonable disclosure of personal information, I had
regard to:
a.
the extent to which the information is well known;
b.
whether the person to whom the information relates is known or to have
been associated with the matters dealt with in the documents; and

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c.
the availability of the information from publicly accessible sources; and
d.
any other matters that the agency or Minister considers relevant.
20.   Against those criteria, I found that:
a.  the specific personal information is not well known to the general community;
b.  the persons to whom the information relates is not known by the general
community to have been associated with the matters dealt with in the
documents; and
c.  the personal information is not readily available from publicly accessibly
sources.
21.  Noting the findings against the above criteria, I have decided that the disclosure of this
information would be an unreasonable disclosure of personal information belonging to other
persons. Accordingly, I consider this material to be conditionally exempt under section 47F of
the FOI Act.

22.  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’. My public interest arguments are detailed below.

Section 47G – Business
23.  Subsection 47G conditionally exempts a document if its disclosure under the FOI 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 of an
organisation or undertaking, in a case in which the disclosure of the information:
a.  would or could reasonably be expected to adversely affect the business or
commercial or financial affairs; or
b.  could reasonably be expected to prejudice the future supply to the
Commonwealth.
24.  I note that the use of the word ‘could’ in this provision requires no more than a degree
of reasonableness to be applied in deciding whether disclosure would cause the consequences
specified. The operation of the business information exemption depends on the effect of
disclosure rather than the precise nature of the information itself.
25.  Upon examination of the documents, I identified business names and employees of the
business in connection with unsubstantiated allegations. I determined that this information is
not publicly available. Any material identifying a specific business that was involved in the
investigation could affect their lawful business and future profitability.

26.  I am satisfied that the effect of disclosing the identified material could have an adverse
effect on the mentioned companies. Consequently, I have decided that the material is
conditionally exempt under section 47G of the FOI Act.

27.  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’. My public interest arguments are detailed below.

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Public interest considerations – section 47E, 47F and 47G
28.  I have found that the identified documents are conditionally exempt under sections 47E,
47F and 47G of the FOI Act.

29.  I considered the factors favouring disclosure set out in section 11B(3) of the FOI Act.
The relevant factors being that disclosure may promote some of the objectives of the FOI Act,
as information held by the government is a national resource.

30.  While I note that the release of the information being withheld may be of interest to the
applicant, it would not inform public debate on any matter of public importance in any
meaningful way.

31.  Paragraph 6.22 of the Guidelines specifies a non-exhaustive list of public interest factors
against disclosure. The factors I find particularly relevant to this request are that release of
this information could reasonably be expected to prejudice:

a.  the protection of an individual’s right to privacy;
b.  the interests of an individual or a group of individuals;
c.  an agency’s ability to obtain confidential information;
d.  an agency’s ability to obtain similar information in the future;
e.  the management function of an agency; and
f.  the fair treatment of individuals and the information is about unsubstantiated
allegations of misconduct or unlawful, negligent or improper conduct.
32.  It is reasonable to consider that individuals and businesses named in investigation
records maintained by Defence expect protection of their privacy, identity and business
information. Such individuals would therefore expect Defence to maintain a high level of
confidentiality in respect to documents that may lead to their identity being disclosed. This is
particularly relevant where the allegations were not substantiated. Any allegations of
wrongdoing could significantly affect the profitability of a business.

33.  Releasing information about a public interest disclosure, or others involved in the
allegations or its investigation, could reasonably be expected to adversely impact on the
agency’s ability to gain the confidence of the complainant, or other current or future
complainants, and the provision of relevant information in the future. Release could prejudice
the protection of a public interest discloser. Further, this could significantly undermine any
investigative process and undermine the ability of the department to handle complaints in the
future.

34.  It is for those reasons that I find that the public interest factors against disclosure
outweigh the factors for disclosure and I deem the information exempt under sections 47E,
47F and 47G of the FOI Act.

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35.  None of the factors listed in section 11B(4) [Irrelevant Factors] were taken into account
when making my decision.

Reasons for decision - Section 24A(l) - Requests may be refused
36.  Section 24A(l) of the FOI Act states:
24A Requests may be refused if documents cannot be found, do not exist or
have not been received
Document lost or non-existent
(1)
An agency or Minister may refuse a request for access to a document
if:
(a)
all reasonable steps have been taken to find the document; and
(b)
the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be
found; or
(ii)  does not exist.
37.  Paragraph 3.84 of the Information Commissioner Guidelines advises what detail this
statement of reasons needs to include to refuse a request under section 24A(l):
The statement of reasons given to the applicant should sufficiently identify
the document, explain why it cannot be found or is known not to exist or to
be in the agency's possession, describe the steps the agency took to search
for the document, and note the limitations of any search.
38.  To ensure that "all reasonable steps" have been taken in this request, every reasonable
avenue of locating the documents has been exhausted. The details of these searches are
outlined below.

39.  The Office of the Secretary and Chief of the Defence Force, Defence Legal, Audit and
Fraud Division, Defence People Group and Estate and Infrastructure Group conducted
searches of Objective, Defence’s corporate records management system. Searches were
conducted using the applicant’s name, the investigation number and the timeframe as stated in
the FOI request as parameters. In addition, a search was conducted of Defences
Parliamentary Workflow System (DPAWS) and Lotus Notes, Defence’s previous system used
for tracking ministerial correspondence. The terms used to conduct these searches were:
a.  IR-DWS01-DI-2014-54
b.  PID (2014-100004)
c.  Mona Krombholz
d.  Commonwealth Ombudsman
e.  Krombholz v commonwealth
f.  INV-DWS01-DI-2014-6

40.  While documents were identified using the above terms they did not match the terms of
the request.

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41.  I am satisfied that "all reasonable steps" have been taken to locate documents matching
Item 3 of the request. I am satisfied that the documents cannot be found or do not exist, and
have therefore decided to refuse access to Item 3 of the request under section 24A(l) of the
FOI Act.
Further Information
42.  Some of the documents matching the scope of this request contained a dissemination
limiting marker, as the documents are approved for public release the marker has been struck
through.

43.  Where documents indicate the Investigation Report (Item 1 Serial 1) and/or Executive
Summary (Item 1 Serial 2) is attached, a further copy of Item 1 Serial 2 has not been
provided. As mentioned in paragraph 3 above, Item 1 Serial 1 has not been considered as part
of this FOI request.

Digitally signed by

melissa.davi melissa.davidson

Date: 2018.01.31

dson
15:45:45 +11'00'

Mrs Melissa Davidson
Accredited Decision Maker
Associate Secretary Group