FOI
Internal review decision made under the Freedom of Information Act 1982
Internal review decision and reasons for decision of Nick (Position Number 62209913),
Information Law Section, Legal Services and Assurance Branch, Department of Veterans’
Affairs
Applicant:
Julie (Right To Know)
Date of primary decision:
2 October 2018
FOI reference number:
FOI 24297
Internal review decision date:
26 March 2019
Internal review reference number:
IR 24864
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie (Right To Know)
Freedom of Information Request: FOI IR 24864
1. The purpose of this letter is to give you a decision about your request for an internal review under the
Freedom of Information Act 1982 (
FOI Act).
2. I have made a decision to affirm the original decision made by Leia (Position 62210022), Assistant
Director, Information Law, Legal Services and Assurance Branch, to refuse access to the documents
requested.
Authority to make this decision
3. I am an officer authorised by the Secretary of the Department of Veterans’ Affairs (
Department) to
review decisions about access to documents in the possession of the Department in accordance with
section 54C of the FOI Act.
Summary
4. On 31 August 2018, you made a request for access to documents in the possession of the Department.
Your request sought access to:
A copy of all the DVA Executive Management Board Minutes for FY16/17.
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5. As no extensions of time were applied to process your request, a decision on your request was due by
30 September 2018.
6. On 2 October 2018 you were provided with a decision relating to access to documents within scope of
your request. The decision was to refuse access in full to 11 documents itemised in
Schedule 1 of the
original decision. The reasons given in that decision hold for this Internal Review decision.
7. On 2 October 2018, you requested an Internal Review of the primary decision. In your request, you
specifically noted:
I am writing to request an internal review of Department of Veterans' Affairs' handling of my FOI
request 'Department’s Executive Management Board Minutes'.
8. As no extensions of time have been applied to process this internal review, a decision on your Internal
Review request was due by 1 November 2018. We acknowledge the deemed nature of this decision.
Decision
9. I have made a decision to affirm the original decision made by Leia (Position 62210022), Information
Law Section, Legal Services and General Counsel Branch to refuse access to the documents relevant to
your request.
Material taken into account
10. In accordance with Section 26(1)(a) of the FOI Act, the findings on any material question of fact,
referring to the material on which those finding were based and the reasons for my decision to refuse
access to documents follow.
11. I have taken the following material into account in making my decision:
the terms of your primary request;
the terms of your request for an internal review;
the types of documents that are in the possession of the Department;
the content of the documents that fall within the scope of your request;
sections 3, 11 and 11A of the FOI Act which give the Australian community a legally enforceable
right to obtain access to information held by the Government of the Commonwealth. I also
considered the following provisions of the FOI Act relevant to my decision:
-
Section 11B
Public interest exemption – factors
-
Section 47C
Public interest conditional exemptions--deliberative processes
-
Section 47E
Public interest conditional exemptions--certain operations of agencies
the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI
Act (FOI Guidelines).
12. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
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Reasons for decision
13.
In your application for an Internal Review, you described the content of the Minutes of the Executive
Management Board as: “Minutes are not transcripts and it is not the convention for them to record
in minutia discussions, but rather to record decisions and outcomes reached, and tasks and activities
assigned -- this is not deliberative material”.
14.
The Executive Management Board is chaired by the Secretary, with the Deputy Secretary Policy and
Programs as the Deputy Chair.
15.
The Executive Management Board's purpose is:
to act as an internal advisory committee to the Secretary
to provide a primary forum for senior leadership consideration, discussion and endorsement of
the following matters, before the Secretary's formal delegation is exercised:
o strategic planning in policy and operational matters
o performance monitoring
o organisational health including, people and culture and resource allocation
(departmental budget and investment).
Section 47C: Public interest conditional exemptions – deliberative processes
16.
Section 47C of the FOI Act provides that a document is conditionally exempt if it would disclose
deliberative matter in the nature of, or relating to, opinion, advice or recommendations obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for
the purposes of, the deliberative processes in the functions of the Department.
17.
I have taken into account that the Minutes contain purely factual information as well as a record of
deliberations. However, some of this factual material relates to options and opinions being
discussed. Thus, to release these facts would disclose the nature of the advice being considered.
18.
In the AAT decision of
Wood; Secretary, Department of the Prime Minister & Cabinet and (Freedom of
Information) [2015] AATA 945, Forgie DP explains that the meaning of the words ‘opinion’, ‘advice’
and ‘recommendation’ all involve consideration, followed by the formation of a view either about a
certain subject or about a course of action and the subsequent transmission of that view.
19.
The Minutes of the Executive Management Board contain a record of such deliberations.
20.
I am satisfied that the documents requested contain deliberative matter which is conditionally
exempt under sub-section 47C(1) of the FOI Act.
Application of the public interest test:
21. Section 11A(5) provides that an agency 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 would,
on balance, be contrary to the public interest.
22. In order to assess whether release of the exempt material would be contrary to the public interest, I
considered the following factors which favour disclosure:
a.
disclosure would promote the objects of the FOI Act, including:
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(i) inform the community of the Government’s operations, including, in particular, the
policies, rules, guidelines, practices and codes of conduct followed by the
Government in its dealings with members of the community;
(ii) reveal the reason for a government decision and any background or contextual
information that informed the decision; and
(iii) enhance the scrutiny of government decision making.
23. I also considered the following factors which do not favour disclosure:
b.
disclosure would disclose matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendation obtained, prepared or recorded, or consultation or
deliberation that has taken place, in the course of, or for the purposes of, the
deliberative processes involved in the functions of an agency, a Minister or the
Government of the Commonwealth;
c.
disclosure could reasonably be expected to prejudice an agency’s ability to obtain
confidential information;
d.
disclosure could reasonably be expected to prejudice an agency’s ability to obtain
similar information in the future; and
e.
disclosure could reasonably be expected to prejudice the competitive commercial
activities of an agency (insofar as content relates to the commercial affairs of the
Commonwealth).
24. Releasing the documents sought may significantly reduce the quality, clarity or frankness of discussions
between Board members and ultimately, the advice and recommendations that arise from these
meetings. This potential detriment to the public interest of release of the documents outweighs the
factors in favour of access.
25. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the FOI Act.
26. On balance, I consider the public interest factors against disclosure to be more persuasive than the
public interest factors favouring disclosure. I am satisfied that the public interest is to withhold the
exempt material.
Section 47E(d): Public interest conditional exemptions – certain operations of agencies
27.
Sub-section 47E(d) provides for documents to be conditionally exempt if disclosure under the FOI Act
would, or could reasonably be expected to, have a substantially adverse effect on the proper and
efficient conduct of the operations of an agency.
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28.
The Minutes contain a record of discussions about strategy and planning within the Department’s
jurisdiction.
29.
It is important that the Minutes capture an open and frank reporting of these matters.
30.
This has an overall flow on effect to the Department’s processes and policies. Inappropriate
disclosure of this information could reasonably be expected to jeopardise the reporting of this
information and its full disclosure at the Board’s meetings.
31.
I am satisfied that disclosure of the requested documents would undermine the Department’s
strategic and planning processes
32.
Accordingly, I have decided that the documents requested contain material that is exempt within the
meaning of sub-section 47E(d) of the FOI Act. Consequently, I am not required to consider any public
interest.
Application of the public interest test:
33. Section 11A(5) provides that an agency 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 would,
on balance, be contrary to the public interest.
34. In order to assess whether release of the exempt material would be contrary to the public interest, I
considered the following factors which favour disclosure:
f.
disclosure would promote the objects of the FOI Act, including:
(iv) inform the community of the Government’s operations, including, in particular, the
policies, rules, guidelines, practices and codes of conduct followed by the
Government in its dealings with members of the community;
(v) reveal the reason for a government decision and any background or contextual
information that informed the decision; and
(vi) enhance the scrutiny of government decision making.
35. I also considered the following factors which do not favour disclosure:
g.
disclosure would disclose matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendation obtained, prepared or recorded, or consultation or
deliberation that has taken place, in the course of, or for the purposes of, the
deliberative processes involved in the functions of an agency, a Minister or the
Government of the Commonwealth;
h.
disclosure could reasonably be expected to prejudice an agency’s ability to obtain
confidential information;
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i.
disclosure could reasonably be expected to prejudice an agency’s ability to obtain
similar information in the future; and
j.
disclosure could reasonably be expected to prejudice the competitive commercial
activities of an agency (insofar as content relates to the commercial affairs of the
Commonwealth).
36. Release of the Minutes would be contrary to public interest. Board members need to be able to
undertake rigorous and candid assessment of all information relevant to the Department’s operations,
and to consider in confidence, the most effective options and solutions to address the Department’s
affairs. It is important that Board members feel able to provide information, consider options and
deliberate without restriction in order to ensure that the Board always considers all relevant
information and opinions.
37. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the FOI Act.
38. On balance, I consider the public interest factors against disclosure to be more persuasive than the
public interest factors favouring disclosure. I am satisfied that the public interest is to withhold the
exempt material.
Conclusion
39.
I acknowledge that disclosure of the requested documents could promote the objects of the FOI Act.
40.
However, the Guidelines at paragraph 6.22 provide a non-exhaustive list of factors against disclosure.
In considering these factors, I find that the requested documents, if released, could reasonably be
expected to:
a)
Prejudice the Department’s ability to obtain confidential information
b)
Prejudice the Department’s ability to obtain similar information in the future; and
c)
Prejudice the protection of an individual’s right to privacy.
32.
I consider that all three factors weigh heavily against disclosure of the Minutes of the Department’s
Executive Management Board. While I accept that there is a public interest in ensuring the
Department undertakes its functions in a transparent and proper manner, there is also a public
interest in maintaining the confidentiality of the information contained in the requested documents.
Disclosure of the sensitive material would potentially impact and harm the Commonwealth’s ability
to effectively manage its business.
33.
I consider that disclosure of the information contained in the requested documents would not
increase participation or increase scrutiny of the Government’s processes or activities. On the
contrary, release of the requested documents at this point would greatly hinder current processes
and would also reveal sensitive matters affecting the Department.
34.
None of the factors listed in section 11B(4) of the FOI Act were taken into account in making this
decision.
35.
On balance, I find that it would be contrary to the public interest to release the information
considered conditionally exempt under sections 47C and 47E(d) of the FOI Act.
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Your rights of review
36.
I understand that you have lodged a request for review with the Office of the Australian Information
Commissioner, reference MR19/00025. Should you want to make further contact with their Office,
here are the details:
Online:
www.oaic.gov.au
Post:
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
02 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
In person:
Level 3, 175 Pitt Street, Sydney NSW.
37.
More information about your review rights under the FOI Act is available in Fact Sheet 12 published
by the OAIC: http://oaic.gov.au/freedom-of-information/foi-resources/freedom-of-information-fact-
sheets/foi-factsheet-12-your-review-rights
Contacts
38.
If you wish to discuss this decision, please do not hesitate to contact the Information Law Section
using the following details:
Post:
Legal Services & Assurance Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
02 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours Sincerely,
Nick (Position Number 62209913)
Director
Information Law Section | Legal Services & Assurance Branch
Legal Assurance and Governance Division
27 March 2019
7
FOI
Schedule 2
Schedule of relevant provisions in the FOI Act
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Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
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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.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
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.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditionally exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
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23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
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Public interest conditional exemptions
47C
Public interest conditional exemptions—deliberative processes
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth; or
(d)
the Government of Norfolk Island.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not,
including reports expressing the opinions of such experts on scientific or technical
matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
47E
Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
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