DB
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear DB
I refer to your request dated 9 June 2018 for access to documents under the
Freedom of
Information Act 1982 (
FOI Act).
You sought access to copies of email correspondence between 14 May 2018 to 9 June 2018,
the date of your application, between acting Merit Protection Commissioner, Mr Mark Davidson
and the Public Service Commissioner, Mr John Lloyd.
The statutory time period for providing you with a decision on your request expired on 10 July
2018. You were advised on 25 June 2018 that the time period was extended by an additional 30
days under s 15(6) of the FOI Act to allow for consultation of a third party. Accordingly, the due
date for you to receive a decision on your request is 10 August 2018.
I am authorised under s 23 of the FOI Act to make this decision.
In making my decision, I have taken into account:
-
The terms of your request
-
The response from a third party consulted about your request
-
The documents identified as relevant to the scope of your request
-
The FOI Act
-
Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act:
http://www.oaic.gov.au/
Summary of my decision
I have identified 22 documents that are relevant to the scope of your request. I have decided to
release 14 documents in full and release 8 documents in part. Attached to my decision is a
schedule of documents that lists each document and my decision in relation to each document.
Reasons for decision
Irrelevant information – s 22
Section 22 permits redact of information that is irrelevant to the scope of the request. You
agreed to exclude from the scope of your request the names of third parties who are not public
servants or members of Parliament. I have redacted under s 22 names of third parties whose
names appear in the documents as private individuals.
Personal information
Section 47F conditionally exempts a document to the extent that its disclosure would or could
involve the unreasonable disclosure of personal information about any person. Personal
information has the same meaning as in the
Privacy Act 1988, in which it is relevantly defined
as information or opinion about an identified individual or an individual who is reasonably
identifiable.
I am satisfied that the documents contain information that says something about identifiable
individuals and is personal information for the purposes of s 47F.
Factors that are relevant in deciding if disclosure of personal would be unreasonable are
outlined in s 47F(2) and also were described in ‘
FG’ and National Archives of Australia [2015]
AICmr 26. They include:
the nature, age and current relevance of the information
whether the information is well known or available from other public sources
any detriment that disclosure may cause to the person to whom the information relates
any opposition to disclosure expressed or likely to be held by that person
the circumstances of an agency’s collection and use of the information
whether disclosure of the information might advance the public interest in government
transparency and integrity
the fact that the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act.
I have considered the extent to which information contained in the documents is well known or
available from other public sources. I have decided to release documents, or parts of
documents, that contain information that is in the public domain.
Information in documents 7, 8, 14 and 15 is of a private, sensitive nature that is not relevant to
the issues under consideration contained in the documents. The information is not well known
or in the public domain and, if disclosed, would likely cause that person distress. I find that
disclosure of the personal information would be unreasonable.
Information in documents 3, 4, 5 and 6 contain information that would identify a third party who
made a complaint and an FOI request. The identity of that person is not well known or in the
public domain. I find that person who have a reasonable expectation that their identity would not
be made publically available and disclosure would be unreasonable in these circumstances.
I must give access to the documents I have found to be conditionally exempt unless, in the
circumstances, access to the documents at this time would, on balance, be contrary to the
public interest. Whether the giving of access would be contrary to the public interest requires
me to consider and weigh factors for and against disclosure.
I acknowledge that the giving of access to information held by a Government agency would
promote the objects of the FOI Act and increase public scrutiny and accountability of the
activities of the agency. However, the information in this case is of a private, sensitive nature
provided on a confidential basis. The information would not contribute to public debate on a
matter of public importance or enhance transparency or accountability of Government activities.
Disclosure would, on the other hand reasonably be expected to prejudice the protection of an
individual’s right to privacy.
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On balance, I find disclosure would be contrary to the public interest and the information is
exempt under s 47F.
Third party review rights
Even though my decision is to release the majority of documents, I cannot give you access to
the documents until the review rights of a third party who objected to disclosure run out. The
third party has 30 days to seek either internal review or review by the Information Commissioner
of my decision. I will notify you if an application for review is made.
Review Rights
If you are dissatisfied with this decision you can apply for internal review by this agency (Option
1 below) or external review by the Australian Information Commissioner (
IC Review) (Option 2
below).
You do not have to apply for internal review before seeking IC review. However, the Information
Commissioner has expressed the view that it is preferable for a person to seek internal review
by the agency before applying for IC Review. If you choose Option 1 (internal review), you can
also apply for IC review of the internal review decision within 60 days after receiving notice of
our decision.
Option 1 – Internal review
You can seek internal review of the decision. An application for internal review must be made in
writing within 30 days after the date you were notified of the decision, or within such further
period as the Merit Protection Commissioner allows. The internal review will be conducted by a
senior officer who had no involvement in the initial decision.
There is no particular form required to make a request for internal review. However, it would
help the reviewer if you said, in writing, why you think the decision should be reviewed.
An application for an internal review of the decision should be sent to:
Email:
xxx@xxxx.xxx.xx
Option 2 – Review by the Australian Information Commissioner
Alternatively, you can apply in writing to the Australian Information Commissioner for IC review
of the decision. An application for IC Review must be made within 60 days after the day you
were given notice of this decision.
In making your application, you need to provide an address for notices to be sent (this can be
an email address) and a copy of this decision. It would also help the Australian Information
Commissioner if you set out the reasons for seeking IC review in your application.
To apply for IC review, please refer to the FOI Fact Sheet 13 issued by the Office of the
Australian Information Commissioner
(http://www.oaic.gov.au/images/documents/freedom-of-
information/foi-factsheets/FOI factsheet12 your-rights online July2012.pdf). You can file your
application online
at https://forms.business.gov.au/aba/oaic/foi-review-/ or download a review
form from the OAIC’s websit
e www.oaic.gov.au. Complaints
You can complain to the Australian Information Commissioner about action taken by the Merit
Protection Commissioner in relation to your freedom of information request. Your complaint
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must be in writing and it is the Information Commissioner’s preference that an online complaint
form be completed. The form can be found at
https://forms.business.gov.au/aba/landing.htm?formCode=ICCA 1. Alternatively, you can send
a letter to the Office of the Australian Information Commissioner, GPO Box 5218, Sydney NSW
2001 or send an email to
xxxxxxxxx@xxxx.xxx.xx.
Yours sincerely
Amber Read
Authorised FOI Decision Maker
10 August 2018
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