NOTICE OF DECISION MADE UNDER SECTION 23
OF THE FREEDOM OF INFORMATION ACT 1982 (CTH) (FOI ACT)
WITH REASONS FOR DECISION PROVIDED UNDER SECTION 26
Applicant:
Phillip Sweeney
Decision-maker:
Sigrid Neumueller, an authorised officer of the Australian
Prudential Regulation Authority (
APRA) for the purposes of
section 23(1) of the FOI Act.
Relevant
Request for documents relating to NSW Bookmakers’
documents:
Superannuation Fund, specifically the covering letter lodged
with APRA in the course of registering the fund, and any other
additional letters related to the registration.
My decision:
Grant access, under section 11A(3) of the FOI Act, to the
document specified in the Applicant’s request because the
document is not subject to any exemptions.
MATERIAL FACTS
1.
I refer to your email dated 25 February 2018, in which you sought access under the FOI
Act to:
“The document I seek is a copy of the covering letter lodged with APRA for Fund Registration
for the NSW Bookmakers' Super Fund.
If there were a number of letters related to the registration of the NSW Bookmakers' Super
Fund, then the scope of this FIO request covers any additional letters.”
2.
By email dated 26 February 2018, APRA acknowledged receipt of your request.
DOCUMENTS RELATING TO THIRD PARTIES
3.
The Applicant’s request is for documents that contain information relating to the
business affairs of the APRA-regulated entities. Therefore, APRA extended the statutory
timeline until 26 April 2018 under section 27 of the FOI Act.
EVIDENCE AND MATERIAL RELIED ON
4.
In making my decision, I have relied on the following evidence and material:
a)
the Applicant’s request received by APRA on 25 February 2018;
b)
acknowledgment email from FOI Officer to the Applicant dated 26 February 2018;
c)
email correspondence between APRA officers in February, March and April 2018;
d)
email correspondence between APRA Supervision Analyst and the Trustee for the
NSW Bookmakers’ Superannuation Fund in March 2018;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1
e)
the relevant document;
f)
relevant sections of the
Australian Prudential Regulation Authority Act 1998 (Cth)
(
APRA Act)
;
g)
relevant sections of the FOI Act; and
h)
guidelines issued by the Office of the Australian Information Commissioner to date
(
FOI Guidelines).
REASONS FOR DECISION
5.
APRA has conducted all reasonable searches of its records and identified all documents
relevant to the request.
6.
I have decided to grant access to the relevant document because no exemptions or
conditional exemptions apply.
Business Documents Exemption
7.
I have taken the following approach in relation to the application of section 47G of the
FOI Act:
a) Section 47G of the FOI Act contains a conditional exemption for documents
containing business information, the disclosure of which would unreasonably
affect the lawful business, commercial or financial affairs of the NSW
Bookmakers’ Superannuation Fund.
b) I consulted with the Trustee of the NSW Bookmakers’ Superannuation Fund,
who confirmed that the disclosure of the relevant document would not
unreasonably affect the organisation’s business, commercial or financial
affairs.
8.
I am satisfied that the relevant document does not fall under the business documents
exemption, and that no other exemptions apply.
9.
The relevant document is the cover letter titled ‘Application for Extended Public Offer
Entity Licence’ dated 28 December 2005.
ADVICE TO APPLICANT AS TO RIGHTS OF REVIEW
Application for Internal Review of Decision
10. Pursuant to section 54 of the FOI Act, you have the right to apply for an internal review
of the decision if you disagree with my decision. If you make an application for review,
another officer of APRA will be appointed to conduct a review and make a fresh decision
on the merits of the case.
11. Pursuant to section 54B of the FOI Act, you must apply in writing for a review of the
decision within 30 days after the day the decision has been notified to you.
12. You do not have to pay any other fees or processing charges for an internal review,
except for providing access to further material in the document released as a result of
the review (for example, photocopying, inspection, etc).
13. No particular form is required to apply for review although it is desirable (but not
essential) to set out in the application the grounds on which you consider that the
decision should be reviewed.
14. Application for an internal review of the decision should be addressed to:
FOI Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(02) 9210 3411
15. If you make an application for internal review and we do not make a decision within 30
days of receiving the application, the agency is deemed to have affirmed the original
decision. However, under section 54D of the FOI Act, APRA may apply, in writing to the
Information Commissioner for further time to consider the internal review.
Application for review by Information Commissioner
16. Pursuant to section 54L of the FOI Act, you have the right to apply to the Information
Commissioner for a review of the original decision or a review of a decision made on
review.
17. Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the original decision or the decision made on internal
review.
18. An application for review by the Information Commissioner should be sent:
Online:
www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
In person:
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
Application for review by Administrative Appeals Tribunal
19. If the decision on review by the Information Commissioner is not to grant access to all
of the documents within your request, you would be entitled to seek review of that
decision by the AAT.
20. The AAT is an independent review body with the power to make a fresh decision. An
application to the AAT for a review of an FOI decision does not attract a fee. The AAT
cannot award costs either in your favour or against you, although it may in some
circumstances recommend payment by the Attorney-General of some or all of your
costs. Further information is available from the AAT on 1300 366 700.
Complaints to the Information Commissioner
21. You may complain to the Commissioner concerning action taken by this agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. The Commissioner will conduct an independent investigation of
your complaint.
22. You may complain to the Commissioner either orally or in writing, by any of the methods
outlined above, or by telephone, on 1300 363 992.
Sigrid Neumueller
FOI Officer
Australian Prudential Regulation Authority
Date: 5 April 2018
FREEDOM OF INFORMATION ACT 1982 (CTH)
11 Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access
in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for
seeking access.
47G Public interest conditional exemptions—business
(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; or
(b) 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.
(2) Subsection (1) does not apply to trade secrets or other information to which
section 47 applies.
(3) Subsection (1) does not have effect in relation to a request by a person for
access to a document:
(a) by reason only of the inclusion in the document of information concerning
that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an undertaking where the
person making the request is the proprietor of the undertaking or a person
acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an organisation where the
person making the request is the organisation or a person acting on behalf of
the organisation.
(4) A reference in this section to an undertaking includes a reference to an
undertaking that is carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
(5) For the purposes of subsection (1), information is not taken to concern a person
in respect of the person’s professional affairs merely because it is information
concerning the person’s status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).