FOI 444/17/18 STATEMENT OF REASONS UNDER THE FREEDOM OF
I refer to the application by Ms Verity Pane under the Freedom of Information Act 1982
(FOI Act), for access to:
“…Under FOI I seek copy of any document held by the Freedom of Information
Section, of the Enterprise Reform Branch, in the Governance & Reform Division (titles
which are antonyms to the actual conduct of the staff in these areas I note) that was
created in FY16/17, that relates to any expenditure by that section on training for FOI
FOI decision maker
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
I identified 11 documents as matching the description of the request.
The decision in relation to each document is detailed in a schedule of documents.
I have added an FOI reference number and Item/Serial number to each of the
documents, which corresponds with the schedule.
I have decided to:
a. release three documents in full;
b. partially release two 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 47G [public
interest conditional exemptions-business] of the FOI Act;
c. deny access to six 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 sections 47E(d) [public
interest conditional exemptions-certain operations of agencies] and section
47G [public interest conditional exemptions-business] of the FOI Act; and
d. remove 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
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. comments received from a third party following consultation.
Reasons for decision
Section 47E(d) – certain operations of agencies
I found that parts of the identified documents contain material in respect of which a
claim for exemption under section 47E(d) of the FOI Act may be warranted. Access must
generally be given to a conditionally exempt document unless it would be contrary to the
Section 47E(d) of the FOI Act states:
‘A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:…
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.’
10. Where access has been denied to information under section 47E(d) of the FOI Act, I
considered that the material could reasonably be expected to have a substantial adverse effect
on the proper and efficient conduct of the operations of Defence.
11. Upon examination of the documents, I identified third party information relating to a
business. The information, if released, could affect the integrity and efficacy of the
Department of Defence’s internal processes and procedures regarding contracts and
contractors. If the information was made publically available it could reasonably cause an
adverse effect on Defence’s ability to conduct, manage and perform its functions and working
relationships with contractors in the future.
12. Taking the above into account, I consider that the identified documents contain
information which is conditionally exempt under section 47E(d) of the FOI Act.
13. 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’.
14. My public interest arguments are detailed below.
Section 47G - Business
15. Where access has been denied under section 47G of the FOI Act, I considered that the
material would, or could reasonably be expected to have an adverse effect on the businesses
who provided training to the agency.
Section 47G of the FOI Act states “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:
would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs; or
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
16. Upon examination of the documents I found that they contained information of a
commercial value that may be considered exempt. The Guidelines, paragraph 5.202, provide
that the information must satisfy two criteria:
a. the document must contain information that has a commercial value to an
agency or to another person or body
b. the commercial value of this information would, or could reasonably be
expected to be, destroyed or diminished if it was disclosed.
17. I also had regard to the Guidelines, paragraph 5.203, which outlines factors which may
assist in deciding in a particular case whether information has commercial value. Factors
a. whether the information is known only to the agency or person for whom it has
value or, if known to others, to what extent that detracts from the intrinsic
b. whether the information confers a competitive advantage on the agency or
person to whom it relates – for example, if it lowers the cost of production or
allows access to markets not available to competitors
c. whether a genuine ‘arms-length’ buyer would be prepared to pay to obtain
d. whether the information is still current or out of date (out of date information
may no longer have any value)
e. whether disclosing the information would reduce the value of a business
operation or commercial activity – reflected, perhaps, in a lower share price.
I found that the documents contained information relating to business processes, pricing
and financial matters of a business providing training services to the agency.
I am satisfied that the expected effect of disclosing material identified as exempt under
section 47G could have an adverse effect on this business as disclosure of training costings could
diminish the competitive nature and affect the profitability of the business operations by releasing
20. In light of the above, I have decided that the specified material identified is in fact
conditionally exempt pursuant to section 47G of the FOI Act.
Sections 47E(d) and 47G - Public interest considerations
14. I have found that the identified documents are conditionally exempt under sections
47E(d) and 47G of the FOI Act. 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’.
15. 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 objects of the FOI Act, as
information held by the Government is a national resource.
16. However, disclosure of this information would not increase public participation in the
Defence process (section 3(2)(a) of the FOI Act), nor would it increase scrutiny or discussion
of Defence activities (section 3(2)(b) of the FOI Act).
17. 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 competitive commercial activities of an agency;
b. an agency’s ability to obtain confidential information; and
c. an agency’s ability to obtain similar information in the future.
18. Releasing the pricing information of the business that provides FOI training to Defence
would harm its future profitability and affect Defence’s ability to obtain similar information
in future. It would equally effect Defence’s ability to operate if contracts were not managed
with the appropriate care.
19. 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 47G
and 47E(d) of the FOI Act.
20. None of the factors listed in section 11B(4) [Irrelevant factors] were taken into account
when making my decision.
21. Subsection 22(1) of the FOI Act requires that where a decision maker denies access to a
document they must consider releasing the document with exempt matter deleted, where
possible. I have considered disclosing the documents to the applicant with deletions, but have
decided against this course of action, as the document would be meaningless and of little or
no value once the exempt material is removed.
Digitally signed by
Date: 2018.07.27 09:10:11
Accredited Decision Maker
Associate Secretary Group