Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
23 September 2019
Brisbane QLD 4001
Tel: +61 1300 935 075
Fax: +61 1300 729 000
Our Ref: FOI 199-2019
www.asic.gov.au
Mr Philip Sweeney
By Email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
Freedom of Information Request No. 199 - 2019
Notice of decision
I refer to your your request of 8 September 2018 under the
Freedom of Information Act
1982 (
FOI Act) in which you sought access to documents in the possession of the
Australian Securities and Investments Commission (
ASIC). I also refer to your email to
David Asadi, the previous ASIC decision maker, of 22 August 2019.
The previous ASIC decision maker decided you were liable to pay a charge in relation
to your 8 September 2018 request and wrote to you on 7 December 2018 confirming
the charge decision. On 22 August 2019, you wrote to the previous ASIC decision maker
and agreed to pay the charge, you also offered to submit a fresh request. ASIC has
taken your email of 22 August 2019 as a fresh request in the same terms as your request
of 8 September 2018, as revised through consultation with the previous ASIC decision
maker.
Your request seeks access to the fol owing:
a letter [from Mr O’Connor] dated 27 December 2017… to Nicole Smith, the
then Chairman of NULIS for copies of Deeds of the fund in which Mr O’Connor
has a beneficial interest.
Decision
I am an authorised decision maker for the purposes of section 23(1) of the FOI Act.
I have identified
1 document (the
document) that is responsive to your request. The
document is described in the schedule attached to this letter.
I advise that I have decided: to grant access in part to the document with material
exempted under section 47F of the FOI Act.
I have taken the fol owing material into account in making my decision:
• the content of the documents that fal within the scope of your request
• the FOI Act (specifical y sections 11A and 47F), and
• the guidelines issued by the Australian Information Commissioner under section
93A of the FOI Act (
the FOI Guidelines).
2
Exemptions
Section 47F - Public interest conditional exemptions—personal privacy
Material in the document
has been removed under section 47F of the FOI Act which
relevantly provides that:
‘
A document is conditional y exempt if its disclosure under this Act would
involve the unreasonable disclosure of personal information about any person
(including a deceased person).’
“Personal information” is defined in the FOI Act by reference to section 6 of the
Privacy
Act 1988 as:
‘
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 material form or not.’
Section 47F(2) sets out factors that must be considered when determining if disclosure
would be unreasonable. These factors are as fol ows:
1. the extent to which the information is well known;
2. 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;
3. the availability of the information from publicly accessible sources; and
4. any other matters that ASIC considers relevant.
I identified that the address of the author of the letter is conditional y exempt under
section 47F.
The author of the letter did not respond to ASIC’s consultation which enquired whether
he consented to the release of his information contained within the document. The
information was provided to ASIC for a specific purpose, being the exchange of
correspondence with ASIC. The information is not available in the public domain or
widely known and I consider that the unrestrained release of this information would, in
the circumstances be unreasonable.
I am satisfied that it would be unreasonable to disclose the personal information in the
document for the fol owing reasons:
• the information is not well known or available from publicly accessible sources;
• disclosure is unlikely to advance the public interest in government transparency
and integrity;
• disclosure of the information could reasonably be expected to cause detriment
to the persons to whom the information relates; and
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
I find therefore that the identified material is conditional y exempt under s47F of the FOI
Act.
3
Conditional exemptions are subject to the public interest test which is considered
below.
Public Interest Test
The FOI Act provides that access must be given to a conditional y exempt document
unless access would be contrary to the public interest.
As required by section 11A of the FOI Act I have considered whether release of the
conditional y exempt material in the document
would, on balance, be contrary to the
public interest.
In particular, I have had regard to the fol owing factors outlined in section 11B(3) as
being factors favouring access to the document in the public interest:
1. Access to the documents would promote the objects of the FOI Act (including
al matters set out in sections 3 and 3A).
2. Access to the documents would inform debate on a matter of public
importance.
3. Access to the documents would promote effective oversight of public
expenditure.
4. Access to the documents would al ow a person to access his or her personal
information
Of the above factors I find factor 1 to be relevant to the document. The objects of the
FOI Act include providing for a right of access to information in the possession of
Commonwealth government agencies and promoting accountability and
transparency in government decision making. In this case, the release of the
document supports the objects of the FOI Act by making available information which
is held by ASIC.
Against the above factors must be balanced the factors against disclosure. The FOI
Act does not specify any factors against disclosure in the public interest however the
FOI Guidelines at 6.22 include a non-exhaustive list of thirteen such factors. Of these
factors, three are relevant to this decision; that is that disclosure could reasonably be
expected to:
• to prejudice the protection of an individual’s right to privacy (47F)
• harm the interests of an individual or group of individuals (47F)
Determining whether disclosure would be contrary to the public interest requires that I
weigh the relevant factors to determine where the public interest lies.
I have not taken into account the factors outlined in s11B(4) of the FOI Act as factors
that are irrelevant in deciding whether access to the documents would be contrary to
the public interest.
Section 47F
In my view, the factors against disclosure of the documents exempted under section
47F outweigh the factors in favour of disclosure. Whilst the release of the material in ful
would promote the objects of the FOI Act by making information held by ASIC
available to the public, release in this instance would come at the expense of an
individual’s personal privacy. I consider that in this matter the public interest is weighted
4
toward the fair treatment of the individual and the protection of his right to privacy.
Accordingly, I am satisfied that the material is exempt under section 47F of the FOI Act.
Section 22 Access to edited copies
Section 22(2) of the FOI Act requires an agency to provide an applicant access to an
edited copy of a document with the exempt matter deleted if it is reasonably
practicable for the agency to prepare an edited copy, having regard to:
• the nature and extent of the modifications (s22(1)(c)(i)); and
• the resources available to modify the document (s22(1)(c)(i )).
I consider that it is reasonably practicable to prepare an edited copy of the document
with the exempt material deleted.
Review rights
I provide you with the fol owing information as required by section 26 of the FOI Act.
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this
decision, apply in writing to ASIC for an internal review of my decision under
section 54B of the FOI Act. This review is an independent process conducted by
a Senior Freedom of Information Officer at ASIC. This request should be
addressed to me or to the Senior Manager, Freedom of Information, GPO Box
9827, Brisbane QLD 4001 or by email to xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified of this
decision, apply in writing to the Office of the Australian Information
Commissioner (OAIC) for a review of my decision under section 54N of the FOI
Act. You may contact the OAIC by post at GPO Box 5218 Sydney NSW 2001,
by email at
xxxxxxxxx@xxxx.xxx.xx or by telephone on 1300 363 992.
Right to complain
You may lodge a complaint with the OAIC in relation to the conduct of ASIC in the
handling of this request. You may contact the OAIC as set out above.
Yours faithful y,
Tim Homel
Lawyer Assessment & Intelligence Australian Securities & Investments Commission
(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
5
Schedule of Documents
No. Description of
Date
No. of Decision on
Relevant
document
folios
access
section(s)
1.
L etter to Nicole
27/12/2017
5
Access in
47F
Smith
part