If not delivered return to PO Box 7820 Canberra BC ACT 2610
31 May 2018
Our reference: LEX 34976
Mr David Brown
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Brown
Decision on your Freedom of Information request
I refer to your request, dated 16 February 2018 and received by the Department of Human
Services (
department) on that same date, for access under the
Freedom of Information Act
1982 (
FOI Act) to the following:
'…all the documents published on AusTender website under RFT 1000401959 in
relation to the Systems integrator panel for the WPIT program. The RFT was issued
on 1 August 2016.'
My decision
The department holds 37 documents (totalling 400 pages) that relate to your request.
I have decided that:
the documents are conditionally exempt, in full, under section 47D of the FOI Act, on
the basis that disclosure of the documents would have a substantial adverse effect on
the financial interests of the department, and is not in the public interest; and
parts of the documents are conditionally exempt, under section 47G(1)(a) of the
FOI Act, on the basis that they contain information concerning the business,
commercial or financial affairs of one or more organisations, the disclosure of which
would or could reasonably be expected to unreasonably affect that organisation in
respect of its lawful business, commercial or financial affairs, and is not in the public
interest.
Please see the schedule at
Attachment A to this letter for a list of the documents and the
reasons for my decision, including the relevant sections of the FOI Act.
Charges
Regulation 3 of the
Freedom of Information (Charges) Regulations 1982 (
Charges
Regulations) provides that an agency has a discretion to impose a charge for providing
PAGE 1 OF 10
access to a document. Regulations 9 and 10 of the Charges Regulations set out how the
charges are to be calculated.
Section 29 of the FOI Act sets out the process for an agency to follow where it has decided
to impose charges. Paragraph 4.63 of the guidelines issued by the Australian Information
Commissioner under section 93A of the FOI Act (
Guidelines) provide that, after making a
decision on a request where a charge was estimated, the department is required to calculate
the final charges, in accordance with the Charges Regulations.
On 7 March 2018, the department notified you of its preliminary estimate of charges to
process your request, in the amount of $465.55 and calculated in accordance with regulation
9 of the Charges Regulations.
On 8 March 2018, you requested that the department reconsider the preliminary estimate.
On 9 April 2018, the department notified you that it had decided to reduce the amount of
charges to process your request to $232.78.
On 20 April 2018, the department received your payment of $232.78.
I have considered the actual cost of processing your request, for the purpose of considering
whether to adjust the amount of the charge under regulation 10 of the Charges Regulations.
I have decided that the amount of $232.78 is a fair and accurate reflection of the time taken
to process your request. On this basis, I have decided not to adjust the assessment of
charges (paid by you), and have fixed the charge under regulation 10 of the Charges
Regulations.
You can ask for a review of my decision
If you disagree with any part of my decision, you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the department, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
reviews of decisions. See
Attachment B for more information about how arrange a review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Isabella
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
PAGE 2 OF 10
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
LIST OF DOCUMENTS
BROWN, David - LEX 34976
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1-37
1-400
Various
Documents formerly available
Exempt in full
s 47D
Pages 1-400: contain information, the disclosure of which
on the AusTender website
would have a substantial adverse effect on the financial
under RFT 1000401959
interests of the Commonwealth or the department, and is
Request for Tender for the
not in the public interest.
Procurement of a Systems
Exempt in part s 47G(1)(a)
Integrator Panel
Various: contain information concerning the business,
commercial or financial affairs of one or more
organisations, the disclosure of which would or could
reasonably be expected to unreasonably affect that
organisation in respect of its lawful business, commercial
or financial affairs, and is not in the public interest.
PAGE 3 OF 10
If not delivered return to PO Box 7820 Canberra BC ACT 2610
ATTACHMENT A
REASONS FOR DECISION
What you requested
On 16 February 2018, you requested access, under the FOI Act, to documents in the
following terms:
‘I would like to obtain all the documents published on AusTender website under RFT
1000401959 in relation to the Systems integrator panel for the WPIT program. The
RFT was issued on 1 August 2016.’
On 19 February 2018, the department acknowledged your request.
What I took into account
In reaching my decision I took into account:
your request dated 16 February 2018;
other correspondence between the department and you in relation to your request;
the documents that fall within the scope of your request;
consultation with third parties about their business information contained in the
documents;
consultations with departmental officers about:
o the nature of the documents;
o the department's operating environment and functions;
the FOI Act and the Guidelines.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the documents you have requested are exempt under the FOI Act, as
identified in the Schedule. My findings of fact and reasons for deciding that the exemptions
apply to those documents are discussed below.
Section 47D of the FOI Act
I have decided that the exemption in section 47D of the FOI Act applies to all the documents
within the scope of your request.
Section 47D of the FOI Act provides:
‘A document is conditionally exempt if its disclosure under this Act would have a
substantial adverse effect on the financial or property interests of the Commonwealth
or of an agency.’
Paragraph 6.90 of the Guidelines provides:
PAGE 4 OF 10
‘The financial or property interests of the Commonwealth or an agency may relate to
assets, expenditure or revenue-generating activities.’
I consider that the information contained within the documents you have requested concerns
the financial interests of the Commonwealth as represented by the department, on the basis
that it relates to expenditure activities, namely the procurement of systems integrator
services to support the delivery of the department’s Welfare Payment Infrastructure
Transformation Programme (
WPIT Programme).
A substantial adverse effect
Paragraph 6.92 of the Guidelines provides:
‘A substantial adverse effect may be indirect. For example, where disclosure of
documents would provide the criteria by which an agency is to assess tenders, the
agency’s financial interest in seeking to obtain best value for money through a
competitive tendering process may be compromised.’
In
David Miles Connolly and Department of Finance [1994] AATA 167 (
Connolly), the
Administrative Appeals Tribunal (
AAT) considered the meaning of ‘substantial’ in the context
of this exemption, and held that:
‘There must be a degree of gravity before this exemption can be made out … the
effect must be "serious" or "significant" ... Normally a value judgment has to be made
as to whether an adverse effect is or is not substantial when considering
exemptions…’
In
Connolly, Deputy President McMahon held that disclosure of documents regarding tenders
and expressions of interest for certain services (in that matter, disposal of uranium
stockpiles) would result in a substantial adverse effect on the Commonwealth’s financial or
property interests, on the basis that it would prejudice the Commonwealth’s ability to develop
and/or implement its strategy to dispose of its uranium stockpile so as to maximise the return
to the taxpayer and ensure an orderly market. Deputy President McMahon stated:
‘…I would have to find that access to the remaining documents would be virtual
disclosure of the Commonwealth's strategy for selling that 4 million lbs in a thin,
confidential and sensitive market and that this would inevitably affect the general spot
price and the price which the Commonwealth might reasonably be expected to
achieve if the present confidential strategy is maintained.’
I consider that disclosure of the documents you have requested would have a substantial
adverse effect on the Commonwealth’s financial interests. This is because the documents
within the scope of your request include the criteria by which the department was to assess
tenders for this particular Systems Integrator Panel. Although this particular tender has
already been finalised, the WPIT programme is ongoing. It is reasonable to assume that the
department may undertake further procurement activities relating to the WPIT programme,
which would be compromised if the documents you have requested were disclosed.
I also note that
Connolly is analogous to the current request, in that disclosure of the
information contained in the documents you have requested would effectively disclose the
department’s strategy for obtaining certain services to support the implementation of the
WPIT programme. The department is a significant purchaser of a wide range of IT services in
a small market, such that there would be an immediate, direct and significant impact if the
department’s approach to market were disclosed.
PAGE 5 OF 10
Department of Human Services
For the reasons given above, I consider that the documents are conditionally exempt under
section 47D of the FOI Act.
Public interest considerations
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure would promote the objects of the FOI Act and
promote effective oversight of public expenditure.
I have also considered the relevant factors weighing against disclosure, indicating that
access would be contrary to the public interest. In particular, I have considered the extent to
which disclosure could reasonably be expected to:
prejudice the competitive commercial activities of the department; and
harm the interests of an individual or group of individuals.
Based on these factors, I have decided that the public interest in disclosing the information in
the above-mentioned documents is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Conclusion
In summary, I am satisfied that the documents are conditionally exempt under section 47D of
the FOI Act. Furthermore I have decided that, on balance, it would be contrary to the public
interest to release this information. Accordingly, I have decided not to release the documents
to you.
Section 47G of the FOI Act - unreasonable disclosure of information - business
I consider that parts of the documents are conditionally exempt, in full, under
section 47G(1)(a) of the FOI Act.
Section 47G of the FOI Act provides:
‘(1) A document is conditionally exempt if its disclosure under this 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, 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’.
Paragraph 6.192 of the Guidelines provides:
‘The use of the term ‘business or professional affairs’ distinguishes an individual’s
personal or professional affairs and an organisation’s internal affairs. The term
‘business affairs’ has been interpreted to mean ‘the totality of the money-making
affairs of an organisation or undertaking as distinct from its private or internal affairs.’
PAGE 6 OF 10
Department of Human Services
The documents within the scope of your request contain information regarding:
certain commercial arrangements between the department and organisations; and
certain product offerings or services of organisations.
Therefore, this information is ‘information about the business, commercial or financial affairs
of organisations’ within the meaning of section 47G(1) of the FOI Act.
Whether disclosure is 'unreasonable'
In addition to the factors specified in section 47G(1) of the FOI Act, paragraph 6.187 of the
Guidelines provides:
‘The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and
private interests, but this does not amount to the public interest test of s 11A(5) which
follows later in the decision process. It is possible that the decision maker may need
to consider one or more factors twice, once to determine if a projected effect is
unreasonable and again in assessing the public interest balance. This is inherent in
the structure of the business information exemption’.
I am satisfied that the disclosure of this business information would be unreasonable for the
following reasons:
it relates to aspects of one or more organisation’s business and professional affairs;
the information is private and not available in full or in part from publicly-accessible
sources; and
the information was included in the documents for the purpose of a tender exercise,
which has now concluded and which is no longer accessible on the Austender
website as a matter of government policy.
On this basis, I have decided that the documents containing business information are
conditionally exempt under section 47G(1) of the FOI Act.
Public interest considerations
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure would promote the objects of the FOI Act and
promote effective oversight of public expenditure.
I have also considered the following factors weighing against disclosure, indicating that
access to the information would be contrary to the public interest, on the basis that:
the information relates to aspects of the lawful business, commercial or financial
affairs of one or more organisations;
disclosure would reveal confidential information;
disclosure of the information may inhibit the conduct of future negotiations for
professional services by the department and/or the organisations; and
PAGE 7 OF 10
Department of Human Services
the information is private and not available in full or in part from
publicly-accessible sources.
I have decided that the public interest in disclosing the business information in the
documents within the scope of your request is outweighed by the public interest against
disclosure.
Conclusion
In summary, I am satisfied that parts of the documents are conditionally exempt under
section 47G(1)(a) of the FOI Act, on the basis that they contain information concerning the
lawful business, commercial or financial affairs of organisations which is unreasonable to
disclose. I have decided that, on balance, it would be contrary to the public interest to release
this information.
Summary of my decision
In conclusion, I have decided to refuse access to all 37 documents within scope of this
request.
I have decided that:
the documents are conditionally exempt, in full, under section 47D of the FOI Act, on
the basis that disclosure of the documents would have a substantial adverse effect on
the financial interests of the department, and is not in the public interest; and
parts of the documents are conditionally exempt, under section 47G(1)(a) of the
FOI Act, on the basis that they contain information concerning the business,
commercial or financial affairs of one or more organisations, the disclosure of which
would or could reasonably be expected to unreasonably affect that organisation in
respect of its lawful business, commercial or financial affairs, and is not in the public
interest.
PAGE 8 OF 10
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of a Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (the department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 9 OF 10
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request
Include your contact details
Set out your reasons for objecting to the department's decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an agency in the exercise of powers or the performance of functions under the FOI Act.
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 10 OF 10
Department of Human Services
