21 June 2018
Our reference: 228284‐2018/4139
Mr Mike Tremblay
By email: foi+request‐4509‐xxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Tremblay
Freedom of Information Request – Notice of Decision
I refer to your email dated 17 April 2018 making a request under the
Freedom of Information Act (1982)
(FOI Act) for access to:
all records including but not limited to:
o documents,
o diaries,
o electronic communications,
o fax transmissions,
o transactions,
o information including that generated by information systems, o incident reports, o notes made
from any telephone conversations
That relate to the accident that exposed a worker at ANSTO Health, Lucas Heights, on 22 August
2017 to radioactive Molybdenum‐99. These records should include all communications from
ANSTO to Comcare regarding the incident and Comcare's regulatory response. Also requested
are all records that relate to communications made under the Memorandum of Understanding
between Comcare and The Australian Radiation Protection and Nuclear Safety Agency.
Decision
I am authorised under section 23 of the FOI Act to make decisions in relation to FOI requests.
Comcare holds two files (51 documents) that relates to your request.
I have decided to:
grant you full access to four documents
grant you part access to 44 documents with some of the content removed and
refuse access to three documents
I have decided that certain documents, or parts of documents, that you have requested are exempt
under the FOI Act under sections:
33 – documents affecting national security, defence or international relations
47E(d) – substantial adverse effect on the proper and efficient conduct of the operations of an
agency
47F – documents containing the personal information of third parties
The reasons for applying the exemptions are detailed in the decision record at Attachment A. A
schedule of documents has also been provided at Attachment B.
Rights of review
If you are not satisfied with this decision, you are entitled to seek review. Your review rights are set
out at Attachment C to this notice.
Contacts
Should you require clarification of any matter discussed in this letter, please contact me by email to
xxx@xxxxxxx.xxx.xx or by telephone 1300 366 979.
Yours sincerely,
The FOI Team
Comcare
Phone: 1300 366 979
Email: xxx@xxxxxxx.xxx.xx
www.comcare.gov.au
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ATTACHMENT A
REASONS FOR DECISION
INFORMATION ON WHICH THE FINDINGS ARE BASED
The information on which the findings of material questions of fact are based:
your request dated 17 April 2018
the documents that fall within the scope of your request
consultations with Comcare officers about:
o the nature of the documents
o Comcare’s operating environment and functions
guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the Guidelines) and
the FOI Act.
REASONS FOR MY DECISIONS
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the document that you requested is exempt in part under the FOI Act. My reasons
for deciding that the exemption applies to that document is discussed below.
Section 22 – access to edited copies with exempt or irrelevant content from a document
Section 22 of the FOI Act states:
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an
edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
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(ii)
the edited copy would not disclose any information that would reasonably be
regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that the
applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
Document 33 in the Verification documents contains extracts from a Comcare Inspector Notebook. This
notebook information is not relevant to the investigation requested under FOI. These parts have been
removed under section 22 of the FOI Act.
Section 33 – documents affecting national security, defence or international relations
I have applied the exemption section 33(a)(i) to 21 documents.
Section 33(a)(i) of the FOI Act permits exemption of a document if disclosure of the document would, or
could reasonably be expected to affect national security.
Section 33(a)(i) of the FOI Act states:
A document is an exempt document if disclosure of the document under this Act:
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(a) would, or could reasonably be expected to, cause damage to:
(i)
the security of the Commonwealth.
The information exempted comprises location details for nuclear materials and detailed information on
accessing these locations.
The Australian Information Commissioner's Guidelines state:
5.29 The term ‘security of the Commonwealth’ broadly refers to:
a. the protection of Australia and its population from activities that are hostile to, or subversive of,
the Commonwealth’s interests
5.30 A decision maker must be satisfied that disclosure of the information under consideration would,
or could reasonably be expected to, cause damage to the security of the Commonwealth.
5.31 The meaning of ‘damage’ has three aspects:
i.
that of safety, protection or defence from something that is regarded as a danger. The AAT has
given financial difficulty, attack, theft and political or military takeover as examples.
ii.
the means that may be employed either to bring about or to protect against danger of that sort.
Examples of those means are espionage, theft, infiltration and sabotage.
iii.
The organisations or personnel providing safety or protection from the relevant danger are the
focus of the third aspect.
I consider that the release of the information marked 's33(a)(i)' in the document would, or could
reasonably be expected to adversely impact the Australian Government's security.
ANSTO stores and uses a number of sensitive nuclear materials where access is highly restricted.
Providing access details for these materials could put the ANSTO facilities and staff at risk as well as the
general Australian public.
Accordingly, I am satisfied that the material is exempt from disclosure under section 33(a)(i) of the FOI
Act.
Section 47E(d) ‐ substantial adverse effect on the proper and efficient conduct of the operations of an
agency
I have applied the conditional exemption section 47E(d) to four documents.
Section 47E states:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
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…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
I have considered whether the information is conditionally exempt on the basis that disclosure would
result in a substantial adverse effect on the proper and efficient conduct of the operations of ANSTO
under section 47E(d) of the FOI Act.
Agencies rely on individuals involved in workplace incidents to provide accurate and honest information
in order to effectively assess the incident. Without this information, workplace incident investigations
will not be assessing all factors and consequently is more likely to result in the incident reoccurring.
Disclosure of the information would have a substantial adverse effect on ANSTO’s ability to investigate
workplace incidents. This is because the agency wouldn’t have the full assistance from workers and
therefore may not have accurate information.
In addition, disclosing the methods for workplace investigations could also prejudice the agency’s ability
to undertake investigations.
Disclosure could, therefore, reasonably be expected to adversely affect ANSTO’s work, health and safety
obligations and could result in serious harm to a worker(s). I find this adverse effect to be serious and
not insubstantial, and I find that the documents are conditionally exempt under section 47E(d) of the
FOI Act.
Nonetheless, I must give access to the documents unless, in the circumstances, access at this time would
on balance be contrary to the public interest.
The public interest
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally exempt at a
particular time unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest.'
Conditionally exempt matter must be released unless, in the circumstances, access to that document at
this time would, on balance, be contrary to the public interest (section 11A(5) of the FOI Act). As the
Guidelines state:
6.5
The term ‘public interest’ is necessarily broad and non‐specific because what constitutes the
public interest depends on the particular facts of the matter and the context in which it is being
considered.
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6.27
To conclude that, on balance, disclosure of a document would be contrary to the public interest
is to conclude that the benefit to the public resulting from disclosure is outweighed by the
benefit to the public of withholding the information. The decision maker must analyse, in each
case, where on balance the public interest lies, based on the particular facts of the matter at the
time the decision is made.
I have considered the factors favouring access and factors that are irrelevant in subsections 11B(3) and
(4). In balancing the public interest in this case, I have considered the following factors for and against
disclosure:
Factors in favour of disclosure:
i)
promoting the objects of the Act, particularly in increasing scrutiny, discussion, comment and
review of the Government's activities (section 3(2)(b) of the FOI Act).
ii) facilitating access to information to members of the public that allows them to be satisfied that
proper processes have been followed by Comcare.
Factors against disclosure:
I have also considered the following additional factors against disclosure:
i) ensuring ANSTO can continue to manage their work, health and safety obligations effectively
and efficiently.
ii) could reasonably be expected to prejudice ANSTO’s ability to obtain similar information in the
future including from third parties.
In this case, I have formed the view that the disclosure of information relating to certain ANSTO
activities will make a negligible contribution to those factors in favour of disclosure. By contrast the
harm to ANSTO’s internal operations would be significant. Taking into account the above matters, on
balance, I consider that disclosure would, on balance, be contrary to the public interest. Accordingly, I
have decided that certain information is exempt in full or in part under section 47E(d) of the FOI Act.
Section 47F ‐ Personal information conditional exemption
I have applied the conditional exemption in section 47F(1) to 44 documents.
Section 47F of the FOI Act relevantly provides:
'(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
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(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;
(d)
any other matters that the agency or Minister considers relevant.'
Personal Information
The term 'personal information' is defined as follows:
'...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.'
Paragraph 6.130 of the Guidelines provides:
'Personal information can include a person's name, address, telephone number, date of birth,
medical records, bank account details, taxation information and signature.'
I find that certain documents contain the personal information of other people. This includes their
names.
Unreasonable disclosure
To be conditionally exempt, disclosure of the personal information must be unreasonable.
In deciding whether disclosure of the personal information would be unreasonable, I am required by
section 47F(2) of the FOI Act to take into account:
the extent to which the information is well known
whether the person that the information is about is known to be associated with the matters
dealt with in the documents
the availability of the information from publicly available sources, and
any other relevant matter.
The parts of the document exempted under section 47F contain information about third parties not
related to you in any way, including their names. The information is not well known or in the public
domain.
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I have found that the disclosure of personal information would be unreasonable and the documents are
conditionally exempt pursuant to section 47F of the FOI Act.
The public interest
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.'
Conditionally exempt matter must be released unless, in the circumstances, access to that document at
this time would, on balance, be contrary to the public interest (section 11A(5) of the FOI Act). As the
Guidelines state:
6.5
The term ‘public interest’ is necessarily broad and non‐specific because what constitutes the
public interest depends on the particular facts of the matter and the context in which it is being
considered.
6.27 To conclude that, on balance, disclosure of a document would be contrary to the public interest is
to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit
to the public of withholding the information. The decision maker must analyse, in each case,
where on balance the public interest lies, based on the particular facts of the matter at the time
the decision is made.
I have considered the factors favouring access and factors that are irrelevant in subsections 11B(3) and
(4). In balancing the public interest in this case, I have considered the following factors for and against
disclosure:
Factors in favour of disclosure:
i)
promoting the objects of the Act, particularly in increasing scrutiny, discussion, comment and
review of the Government's activities (section 3(2)(b) of the FOI Act)
ii) informing debate on a matter of public importance
Factors against disclosure:
I have considered the following factors against disclosure:
i)
prejudice an individual's right to privacy
I have taken into account that disclosure of the personal information of third parties would not promote the
objects of the FOI Act. On the other hand, disclosure of the information could reasonably be expected to
interfere with the protection of the privacy of the individual’s concerned. Comcare needs to ensure that
third parties’ are protected from unreasonable interferences to their privacy.
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Disclosure of the documents will not assist to inform public debate or shed light on the workings of
Comcare or ANSTO or enhance accountability or transparency.
On balance, I have decided that disclosure of the personal details within the documents would be
contrary to the public interest and they are exempt under section 47F of the FOI Act.
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ATTACHMENT B
SCHEDULE OF DOCUMENTS
TREMBLAY – 228284‐2018/4139
Investigation Documents
Doc
Pages
Date
Description
Decision
Exemption
1
1-2
1/03/2018
Email CC to CC – Sharing of inspector
Release in part
S47F (personal privacy) has been applied to pages 1 and 3
report with ARPANSA
2
3
27/11/2017
Email CC to ANSTO – Sharing of
Release in part
S47F (personal privacy) has been applied to page 3
inspector report with ARPANSA
3
4-11
24/11/2017
Email CC to CC – Sharing of inspector
Release in part
S47F (personal privacy) has been applied to pages 5 and 7
report with ARPANSA
s33 (National Security) has been applied to pages 6 and 8
4
12-15
21/12/2017
Email ANSTO to CC – Resubmission of
Release in part
S47F (personal privacy) has been applied to pages 12-15
ANSTO Report
5
16-68
21/12/2017
Email CC to ANSTO – Resubmission of
Release in part
S47F (personal privacy) has been applied to pages 16-18, 21, 30,
ANSTO Report
36, 39, 43, 51, 57, 60 and 64
s33 (National Security) has been applied to pages 20, 22, 26, 28-
30, 34, 36, 48, 50-52, 55, 57 and 68
s47E (operations of agencies) has been applied to pages 26-68
6
69-120
14/12/2017
Email CC to CC – Resubmission of
Release in part
S47F (personal privacy) has been applied to pages 69-71, 76, 82,
ANSTO Report
85, 89, 95, 103, 109, 112 and 116
s33 (National Security) has been applied to pages 72, 74-76, 80,
82, 94, 96, 100, 102-104, 107, 109 and 120
s47E (operations of agencies) has been applied to pages 72-93
and 100-120
7
121-122 16/11/2017
Email ANSTO to CC – Thank you for
Release in part
S47F (personal privacy) has been applied to page 121
sending report
8
123-129 16/11/2017
Email CC to ANSTO – Final
Release in part
S47F (personal privacy) has been applied to pages 123 and 125
investigation report
s33 (National Security) has been applied to pages 124 and 126
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130-137 16/11/2017
Email CC to CC – Approval of
Release in part
S47F (personal privacy) has been applied to pages 130 and 133
investigation report
s33 (National Security) has been applied to pages 132 and 134
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138-144 16/11/2017
Email CC to CC – Request for approval
Release in part
S47F (personal privacy) has been applied to pages 138 and 140
of investigation report
s33 (National Security) has been applied to pages 139 and 141
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145-169 9/11/2017
Email ANSTO to CC – ANSTO report
Release in part
S47F (personal privacy) has been applied to pages 145-147, 152,
158, 161 and 165
s33 (National Security) has been applied to pages 148, 150-152,
156 and 158
s47E (operations of agencies) has been applied to pages 148-169
12
170-172 6/11/2017
Email ANSTO to CC – Response to
Release in part
S47F (personal privacy) has been applied to pages 170-172
request for report
13
173-175 6/11/2017
Email CC to CC – Request for report
Release in part
S47F (personal privacy) has been applied to pages 173 and 174
14
176-177 2/11/2017
Email CC to CC – Approved inspector
Release in part
S47F (personal privacy) has been applied to page 176
plan
15
178-179 2/11/2017
Email CC to CC – Inspector plan
Release in part
S47F (personal privacy) has been applied to page 178
16
180-185 15/11/2017
Inspector report
Release in part
s33 (National Security) has been applied to pages 180 and 182
17
186-197 20/10/2017
Email ANSTO to CC - Notification
Release in part
S47F (personal privacy) has been applied to pages 186, 190 and
193
s33 (National Security) has been applied to page 189
Verification Investigation Documents
Doc
Pages
Date
Description
Decision
Exemption
1
1-3
19/03/2018 Email CC to ANSTO – Response to
Release in part
S47F (personal privacy) has been applied to pages 1-3
comment on report
2
4-5
16/03/2018 Email ANSTO to CC – Thank you for
Release in part
S47F (personal privacy) has been applied to pages 4 and 5
report
3
6-10
15/03/2018 Email CC to ANSTO – Final report
Release in part
S47F (personal privacy) has been applied to pages 6 and 9
s33 (National Security) has been applied to pages 8 and 9
4
11-16
15/03/2018 Email CC to CC – Approved report
Release in part
S47F (personal privacy) has been applied to pages 11 and 14
12
s33 (National Security) has been applied to pages 14 and 15
5
17-18
8/03/2018
Email ANSTO to CC – Provision of
Release in part
S47F (personal privacy) has been applied to pages 17 and 18
documents
6
19
23/02/2018 Email CC to ANSTO – Request for
Release in part
S47F (personal privacy) has been applied to page 19
documents
7
20
22/02/2018 Email CC to CC – Update after
Release in part
S47F (personal privacy) has been applied to page 20
inspection
8
21-25
20/02/2018 Email CC to CC – Approved field work
Release in part
S47F (personal privacy) has been applied to page 21
and travel checklist
9
26-29
20/02/2018 Email CC to CC – Field work and travel
Release in part
S47F (personal privacy) has been applied to page 26
checklist
10
30-33
19/02/2018 Email CC to ANSTO – Inspection
Release in part
S47F (personal privacy) has been applied to pages 30-32
11
34
1/02/2018
Email ANSTO to CC - Inspection
Release in part
S47F (personal privacy) has been applied to page 34
12
35-36
19/12/2017 Email CC to CC – Approved inspection
Release in part
S47F (personal privacy) has been applied to page 35
plan
13
37-40
19/12/2017 Email CC to CC – Letter from
Release in full
ARPANSA
14
41-42
18/12/2017 Email CC to CC – Inspection plan
Release in part
S47F (personal privacy) has been applied to page 41
15
43-279
20/12/2017 Email ANSTO to CC – Response to
Release in part
S47F (personal privacy) has been applied to pages 43, 44, 216-238
initial inspector’s report
and 266
s33 (National Security) has been applied to page 45
s47E (operations of agencies) has been applied to pages 77-215
16
280
7/03/2018
ANSTO Memorandum – Lessons learnt
Release in part
S47F (personal privacy) has been applied to page 280
17
281-320 N/A
Exempt in full
S47F (personal privacy) has been applied to pages 281-320
ANSTO Spreadsheet
18
321-338 N/A
ANSTO Job codes
Release in part
s33 (National Security) has been applied to pages 321, 322, 325
and 330
19
339
N/A
ANSTO Curricula assigned to worker
Release in part
S47F (personal privacy) has been applied to page 339
s33 (National Security) has been applied to page 339
20
340-350 Various
ANSTO WHS Policy
Release in full
21
351-363 2/11/2017
Training at ANSTO Health
Release in part
S47F (personal privacy) has been applied to pages 361-363
13
s33 (National Security) has been applied to pages 355, 357, 361
and 362
22
364-404 N/A
ANSTO Induction Facilitator Guide
Release in part
S47F (personal privacy) has been applied to pages 365, 387 and
404
s33 (National Security) has been applied to pages 369, 374, 389,
393, 398, 402 and 403
23
405-410 N/A
ANSTO Onboarding Procedure
Release in full
24
411-412 N/A
Curriculum Vitae
Exempt in full
S47F (personal privacy) has been applied to pages 411-412
25
413-457 N/A
ANSTO Good Laboratory Practices
Release in part
S47F (personal privacy) has been applied to pages 426-428, 430,
434, 438, 439 and 457
s33 (National Security) has been applied to pages 417, 419, 420
and 426 and 454
26
458-464 N/A
ANSTO QC Leader Position
Release in part
S47F (personal privacy) has been applied to pages 458-464
Descriptions
27
465-475 N/A
ANSTO Risk Assessment
Release in part
S47F (personal privacy) has been applied to pages 467, 469, 472
and 474
s33 (National Security) has been applied to pages 465 and 466
28
476-478 N/A
ANSTO Training induction form
Release in part
s33 (National Security) has been applied to page 476
29
479-497 N/A
ANSTO Spill Response
Release in part
S47F (personal privacy) has been applied to page 497
s33 (National Security) has been applied to pages 481, 482, 485,
486, 494 and 495
30
498-513 N/A
ANSTO Good Laboratory Practices
Release in part
S47F (personal privacy) has been applied to page 512 and 513
s33 (National Security) has been applied to pages 501, 502, 505,
506 and 512
31
514-537 N/A
ANSTO Health Production and Quality
Exempt in full
S47F (personal privacy) has been applied to pages 524, 526 and
Control Facility Access Requirements
537
s33 (National Security) has been applied to pages 514-537
32
538-539 25/08/2017 ANSTO Training Record – Single
Release in part
S47F (personal privacy) has been applied to pages 538-539
Session
33
540-548 N/A
Inspector notebooks
Release in part
S22 irrelevant information removed
S47F (personal privacy) has been applied to page 548
34
549-551 19/12/2017 Letter from ARPANSA
Release in full
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ATTACHMENT C
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of this
decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this decision by:
(i)
an internal review officer within Comcare; or
(ii)
the Information Commissioner.
Internal Review
If you apply for internal review, it will be carried out by a different decision‐maker who will make a
fresh decision on your application. An application for review must be:
•
made in writing;
•
made within 30 days of receiving this letter; and
•
sent to the postal or email address shown in this letter.
No particular form is required, but it is desirable to set out in the application the grounds upon
which you consider the decision should be reviewed.
If the internal review officer decides not to grant you access to all of the documents to which you
have requested access, you have the right to seek a review of that decision by the Information
Commissioner. You will be further notified of your rights of review at the time you are notified of the
internal review decision.
Please note that if you apply for an internal review and a decision is not made by an internal review
officer within 30 days of receiving the application, you have the right to seek review by the
Information Commissioner for a review of the original FOI decision on the basis of a 'deemed refusal'
decision, An application for Information Commissioner review in this situation must be made within
60 days of the date when the internal review decision should have been made (provided an
extension of time has not been granted or agreed).
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can lodge your
application in one of the following ways:
Online: www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
mail:
xxxxxxxxx@xxxx.xxx.xx
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If a person has sought an internal review and no result of that review is provided within 30 days,
then the applicant may apply to the Information Commissioner to review the matter.
An application form is available on the website at www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are objecting to (if one was provided), and your contact
details. You should also set out why you are objecting to the decision.
Complaints to the Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by Comcare in relation to your request. The Ombudsman will
consult with the Australian Information Commissioner before investigating a complaint about the
handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
Phone:
1300 362 072 (local call charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your enquiries to the Australian Information Commissioner can be directed to:
Phone:
1300 363 992 (local call charge)
Email:
xxxxxxxxx@xxxx.xxx.xx
No particular form is required to make a complaint to the Ombudsman or the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify
Comcare as the relevant agency.
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