FOI
Statement of reasons made under the Freedom of Information Act 1982
Decision and reason for decision of Julie (Position Number 62212962), Information Law
Section, Legal Services and Assurance Branch, Department of Veterans’ Affairs
Applicant:
Julie via Right to Know
Decision date:
12 November 2018
FOI reference number:
FOI 25115
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie
Freedom of Information Request: FOI 25115
1.
I have made a decision to release forty three (43) documents relevant to your request in part.
Summary
2.
I, Julie (Position Number 62212962), Legal Officer, Information Law Section, am an officer authorised
by the Secretary of the Department of Veterans’ Affairs (
Department) to make decisions about
access to documents in the possession of the Department in accordance with section 23(1) of the
Freedom of Information Act 1982 (
FOI Act).
3.
On 11 October 2018, you made a request for access to documents in the possession of the
Department. Your request sought access to:
“…
Under FOI I seek copy of all documents (including emails, sms messages, file notes and
any other ‘document’ type the FOI Act recognises) between the DVA officers in the
Information Law area of the Legal Services & Assurance Branch and any other area of the
DVA (including the Information Law area) and any external party that refers to, or contains
mention of (the number is the search key, not the whole text):
^DVA FOI 24057,
^DVA FOI 24563
^DVA FOI 24297
^DVA FOI 24465
1
^DVA FOI 24432
The scope period is 17 August 2018 to 11 October 2018 inclusive. Duplicate and identical
documents are to be excluded, so only one version is copied.
Where documents consist of the same chain of identical emails, only the most recent chain
is to be copied (again, to exclude unnecessary duplicates).…”
4.
As no extensions of time have been applied to process your request, a decision on your request is
due by 12 November 2018.
5.
I have decided not to impose a charge in relation to this request, in accordance with regulation 3(1)
of the
Freedom of Information (Charges) Regulations 1982.
6.
The Department has undertaken a reasonable search of its records and has identified forty three (43)
documents relevant to your request, as set out above. The documents relevant to your request are
listed at
Schedule 1.
Decision
7.
I have made a decision to grant you part access to forty three (43) documents.
8.
Details of these documents are detailed in
Schedule 1, together with applicable exemption
provisions under the FOI Act. Where I have decided to grant access in part, I have provided access to
an edited copy of the documents, modified by redactions in accordance with section 22(2) of the
FOI Act.
9.
Parts of documents or full pages that contain information outside of the date range you provided,
duplicates of email chains and/or information irrelevant to the scope of your request have been
redacted or removed from the document, where possible, for your convenience, in accordance with
section 22 of the FOI Act
Material taken into account
10.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of fact, the
material on which those findings were based and the reasons for my decision to grant part access to
the documents follow.
11.
I have taken the following material into account in making my decision:
the terms of your request dated 12 October 2018;
the types of documents that are in the possession of the Department;
2
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 provision[s] of the FOI Act relevant to my
decision:
- Section 11B Public interest exemption – factors
- Section 22
Access to edited copies with exempt or irrelevant material deleted
- Section 42
Documents subject to legal professional privilege
- 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.
Reasons for decision
13.
I have decided to
grant access to documents within the scope of your request, subject to the
following exemptions in accordance with the FOI Act.
Documents subject to legal professional privilege (section 42)
14.
Section 42 of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege. The FOI Guidelines provide that, at common law, determining whether a communication is
privileged requires a consideration of:
(a)
whether there is a legal adviser-client relationship;
(b)
whether the communication was for the purpose of giving or receiving legal advice or for
use or in connection with actual or anticipated litigation;
(c)
whether the advice given is independent; and
(d)
whether the advice given is confidential.
Legal adviser-client relationship
15.
Due to the complex nature of one of your requests and the time required to undertake the work
involved in finalising that matter (FOI 24563), the Department engaged an independent external legal
3
advisor. I am satisfied that the external legal advisor was employed by the Department as its legal
adviser to provide legal assistance in relation to your request and that a lawyer-client relationship
was established.
Dominant purpose
16.
The correspondence between the Department and the external legal advisor were made for the
dominant purpose of obtaining or giving legal advice in connection with your FOI request. They
comprise of emails with the Department discussing your FOI request.
Confidentiality
17.
The document to which the exemption has been applied contain correspondence made in the
content of the legal adviser-client relationship. They were made on the understanding that the usual
and well-established relationship of confidence between a solicitor and a client governed the
communication.
No waiver
18.
Section 42(2) of the FOI Act provides that a document is not exempt because of subsection (1) if the
person entitled to claim privilege in relation to the production of the document in legal proceedings
waives that claim.
19.
A person who would otherwise be entitled to the benefit of privilege may waive that privilege, either
expressly or by implication. Privilege is waived if the conduct of the person seeking to rely on the
privilege is inconsistent with the maintenance of the privilege. This will depend on the circumstances
of the case, including whether the disclosure was for any advantage.
20.
There is no evidence to indicate that the substance of the communications in these documents has
been disclosed more broadly, or used in any way that would be inconsistent with maintaining the
confidentiality of the communications. I am also unwilling to waive privilege for the purpose of
releasing documents under the FOI Act.
21.
Accordingly, I am satisfied that legal professional privilege exists over the documents I have identified
at
Schedule 1, and that they are exempt under section 42 of the FOI Act. As section 42 is not a
conditional exemption I am not required to consider public interest.
Public interest conditional exemptions--deliberative processes (section 47C)
22.
Section 47C of the FOI Act provides that a document is conditionally exempt if its 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
4
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.
23.
The FOI Guidelines explain:
… the deliberative processes involved in the functions of an agency are its thinking
processes—the processes of reflection, for example, upon the wisdom and expediency of a
proposal, a particular decision or a course of action.
24.
Further, while purely factual material is not considered to be deliberative matter, where a document
contains factual material that is related to the provision of policy advice and elaborates its context or
likely impact, it may potentially come within the deliberative document exemption.
25.
Parts of the identified documents form part of a deliberative process. The exempt information
contain opinion, advice and/or recommendations put forward by Departmental staff or external legal
advisors relating to the FOI process and the exchange of opinions and reflections on a particular
proposed decision or course of action. The Department’s FOI process is critical to ensuring the
Department promotes the objects of the FOI Act.
26.
Further, some of the exempt information is subject to ongoing FOI requests that have not yet been
finalised. I am satisfied the premature disclosure of these documents could reasonably be expected
to adversely affect the Department’s FOI functions. If documents subject to the Department’s FOI
decisions and processes are made available through other processes such as an FOI request about an
FOI matter, particularly prior to a matter having been finalised, applicants would bypass the FOI
processes and options as prescribed and provided for under the FOI Act.
27.
Further, it is important for an effective FOI process and ultimately, effective decision making, that
staff within the Department are able to communicate freely and openly about concerns, options or
other considerations in either responding to, managing or finalising FOI requests. The ultimate
decision will sit within the Information Law Section, but information provided to and from other staff
assist in that decision making process; whether a decision ultimately substantiates those
consultations or not. Releasing this type of information is likely to have an adverse impact on the
Department, where the Department, particularly the Information Law Section, rely on other areas of
the Department to freely and promptly assist in complying with the FOI Act.
28.
Accordingly, I have decided that the parts of documents which are listed as exempt in accordance
with this provision in
Schedule 1, meet the criteria for conditional exemption. Where a document is
assessed as conditionally exempt, access must be given subject to the public interest test in
accordance with section 11A(5) of the FOI Act.
5
Application of the public interest test:
29.
Section 11A(5) of the FOI Act 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.
30.
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.
31.
I also considered the following factors which do not favour disclosure:
(a)
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; and
(b)
disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future.
32.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the
FOI Act.
33.
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.
Public interest conditional exemptions--certain operations of agencies (section 47E)
34.
Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure 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; and
6
(d)
have a substantial adverse effect on the proper and efficient conduct of the operations of
an
agency.
35.
I have decided that the parts of documents which are listed as exempt in accordance with this
provision in
Schedule 1 contain information that if released, could have a substantial adverse effect
on the management of personnel by the Department (section 47E(c)) and the proper and efficient
conduct of the operations of the Department (section 47E(d)). Where the document contains
information exempt under section 47E of the FOI Act, an edited copy has been prepared pursuant to
section 22 of the FOI Act with these details redacted.
36.
Because of the way the Department constructs the email addresses of individual officers, I have
decided to redact the surnames of non-Senior Executive departmental staff within direct email
addresses and email signature blocks to give effect to this conditional exemption. I have also decided
to redact the direct contact details of those staff.
37.
Certain processes and specific channels of communication have been implemented by the
Department which enable clients and other relevant stakeholders to contact the Department in a
way that ensures all Departmental resources are managed as efficiently as possible, and staff
wellbeing and safety ensured. A large portion of staff have the ability to utilise a generic point of
contact through centralised email addresses and contact details. In some instances, staff will provide
their first name and position number where appropriate when dealing directly with clients and other
stakeholders.
38.
The Department’s role is to provide support and information to veterans and their dependents,
Australian Defence Force personnel and other categories of people. The services and support which
the Department provides include pensions and compensation, health care, rehabilitation and
counselling services, amongst other things
. It is important that the Department is able to continue to
provide these services and to carry out the other legislative functions and administrative and
operational processes required of them. Certain processes and specific channels of communication
have been implemented which enable clients and other relevant stakeholders to contact the
Department in a way that ensures all Departmental resources are managed as efficiently as possible.
39.
Release of the surnames and direct contact details of those staff in the circumstances would
adversely affect the Department as the established lines of communication could then be bypassed.
It is reasonable to expect that this would disrupt and adversely affect the operations of the
Department.
40.
Furthermore, the release of staffs’ personal details could have a substantial adverse effect on the
management or assessment of personnel as well as an adverse effect on the proper and efficient
conduct of the operations of the agency including the inability of the Department to retain staff or
effectively manage the wellbeing and safety of our staff. Relevantly, some staff have been targeted,
insulted or harassed based on the release of their name and/or direct contact details, both internally
as well as online via public internet sites. This presents unnecessary challenges in managing the
7
welfare of our staff and directly affects the ongoing management and retention of personnel by the
Department. Consequently it would not be in the public interest to release staff surnames and direct
contact details in these circumstances.
41.
Additionally, as noted above, the documents contain sensitive information about the Department’s
operations, including where this forms assistive material for FOI officers to consider when making
decisions under the FOI Act regarding which (if any) exemptions are applicable. Disclosure of this
information could reasonably be expected to diminish the type of information and assistive material
provided by business areas to assist Information Law Section in making well-informed decisions and
subsequently, the quality of the decisions made in accordance with the FOI Act.
42.
As noted above, it is important for an effective FOI process and ultimately, effective decision making,
that staff within the Department are able to communicate freely and openly about concerns, options
or other considerations in either responding to, managing or finalising FOI requests, including where
their full name and contact details may or may not be released under the FOI Act. The ultimate
decision will sit within the Information Law Section, but information provided to and from other staff
assist in that decision making process; whether a decision ultimately substantiates those
consultations or not. Releasing this type of information is likely to have an adverse impact on the
Department, where the Department, particularly the Information Law Section, rely on other areas of
the Department to freely and promptly assist in complying with the FOI Act.
43.
Accordingly, I have decided that the parts of documents which are listed as exempt in accordance
with this provision in
Schedule 1, meet the criteria for conditional exemption. Where a document is
assessed as conditionally exempt, access must be given subject to the public interest test in
accordance with section 11A(5) of the FOI Act.
Application of the public interest test:
44.
Section 11A(5) of the FOI Act 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.
45.
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 enhance the scrutiny of
government decision making.
46.
I also considered the following factors which do not favour disclosure:
(a)
disclosure would, or could reasonably be expected to, have a substantial adverse effect on
the management or assessment of personnel by the Commonwealth;
8
(b)
disclosure would, or could reasonably be expected to, have a substantial adverse effect on
the proper and efficient conduct of the operations of an
agency;
(c)
disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future;
(d)
disclosure could reasonably be expected to harm the interests of an individual or group of
individuals;
(e)
disclosure could reasonably be expected to prejudice the management function of an
agency.
47.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the
FOI Act.
48.
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.
Access to documents
49.
The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
50.
In accordance with section 11C(1)(a) of the FOI Act, the document issued to you will not be made
available in the disclosure log as it relates to your personal information insofar as it relates to your
FOI requests, and it would be unreasonable to publish this information.
Your rights of review
51.
If you are dissatisfied with my decision, you may apply for internal review or request the Office of the
Australian Information Commissioner (
OAIC) review my decision. We encourage you to seek internal
review as a first step as it may provide a more rapid resolution of your concerns.
Internal review
52.
Under section 54 of the FOI Act, you may apply in writing to the Department for an internal review of
my decision. The internal review application must be made within 30 days of the date of this letter.
Where possible please attach reasons why you believe review of the decision is necessary. The
internal review will be carried out by another officer within 30 days.
53.
You can make your application for internal review in one of the following ways:
9
Post: Legal Services & Assurance Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
54.
Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An application
for review by OAIC must be made in writing within 60 days of the date of this letter, and be lodged in
one of the following ways:
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 2000
55. 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
Contact us
56.
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.xxxxxx@xxx.xxx.xx
Yours sincerely,
Julie (Position Number 62212962)
Legal Officer
Information Law Section | Legal Services & Assurance Branch
Legal Assurance and Governance Division
12 November 2018
10
FOI
Schedule 1
Schedule of documents
Applicant:
Julie via Right to Know
Decision date:
12 November 2018
FOI reference number:
FOI 25115
Document
Date of document
Document description
Page numbers
Decision
Exemption provision
reference
and/or irrelevant
number
material removed
1
No date
FOI 25047: File notes
1-3
Release in part
s 22
s 47E(c)
s 47E(d)
2
22/08/2018
FOI 25047: Internal correspondence
4-5
Release in part
s 22
s 47E(c)
s 47E(d)
3
22/08/2018
FOI 25047: FOI Acknowledgement
6
Release in part
s 47E(c)
s 47E(d)
4
30/08/2018
FOI 25047: Internal correspondence
7-37
Exempt in full
s 22
s 47C
s 47E(d)
5
17/09/2018
FOI 25047: Decision covering email enclosing decision letter
38-50
Release in full
s 22
Documents subject to that request have since been provided to you in
FOI 24563. As such, they have not been included here.
6
18/09/2018
FOI 24563: Email from you
50-51
Release in full
s 22
7
19/09/2018
FOI 24563: Acknowledgement of internal review
52-54
Release in full
s 22
8
No date
FOI 24563: File notes
55-57
Release in part
s 22
s 42
s 47C
s 47E(c)
s 47E(d)
11
9
18/09/2018
FOI 24563: Internal review request
58-60
Release in part
s 22
s 47E(c)
s 47E(d)
10
Various within
FOI 24563: Internal correspondence
61-136
Release in part
s 22
September 18
s 42
s 47C
s 47E(d)
11
No date
FOI 24563: Copy of FOI Act provisions
137-147
Release in full
12
No date
FOI 24297: LEX notes
148-149
Release in part
s 22
s 47C
s 47E(c)
s 47E(d)
13
04/09/2018
FOI 24297: Internal correspondence
150
Release in part
s 22
s 47E(c)
s 47E(d)
14
05/09/2018
FOI 24297: Acknowledgement
151
Release in part
s 22
s 47E(c)
s 47E(d)
15
05/09/2018
FOI 24297: Internal correspondence
152-156
Release in part
s 22
s 47C
s 47E(d)
16
02/09/2018
FOI 24297: Decision covering email enclosing decision letter
157-171
Release in full
The 11 documents identified in FOI 24297 have not been reproduced in
this FOI. Please see that decision noting access was refused in full to all
documents subject to the request.
17
No date
FOI 24465: File notes
172-176
Release in part
s 22
s 47C
s 47E(c)
s 47E(d)
18
12/09/2018
FOI 24465: Internal correspondence
177-178
Release in part
s 22
s 47E(c)
s 47E(d)
19
26/09/2018
FOI 24465: Internal correspondence
179-183
Exempt in full
s 47C
s 47E(d)
20
27/09/2018
FOI 24465: Email from you
184-186
Release in full
s 22
21
03/10/18
FOI 24465: Internal correspondence
187
Exempt in full
s 22
s 47C
s 47E(d)
12
22
03/10/2018
FOI 24465: Email from you
188-189
Release in full
s 22
23
03/10/2018
FOI 24465: Internal correspondence
190-192
Exempt in full
s 22
s 47C
s 47E(d)
24
03/10/2018
FOI 24465: Email to you
193-194
Release in full
s 22
25
03/10/2018
FOI 24465: Internal correspondence
195-198
Release in part
s 22
s 47C
s 47E(c)
s 47E(d)
26
12/10/2018
FOI 24465: Notice of extension request
199-200
Release in full
s 22
27
17/09/2018
FOI 24465: FOI Acknowledgment
201
Release in full
s 22
28
17/09/2018 &
FOI 24465: Internal correspondence
202-206
Exempt in part
s 22
20/09/18
s 47C
s 47E(d)
29
27/09/2018
FOI 24465: Request for extension of time
207
Release In full
s 22
30
03/10/2018
FOI 24465: Internal correspondence
208-210
Exempt in part
s 47C
s 47E(d)
31
03/10/2018
FOI 24465: Email from you
211-214
Release in full
s 22
32
03/10/18-08/10/18
FOI 24465: Exempt document
215-221
Exempt in part
s 22
s 47C
s 47E(d)
33
10/10/2018
FOI 24465: Email from you
222-223
Release in full
s 22
34
No date
FOI 24432: File notes
224-226
Release in part
s 22
s 47C
s 47E(c)
s 47E(d)
35
11/09/2018
FOI 24432: Internal correspondence
227-229
Release in part
s 22
s 47E(c)
s 47E(d)
36
12/09/2018
FOI 24432: Acknowledgement
230-231
Release in full
s 22
37
No date
FOI 24432: Exempt document
232
Exempt in part
s 47C
s 47E(d)
38
27/09/2018
FOI 24432: Emails with you about the request for extension of time
233-239
Release in full
s 22
39
03/10/2018
FOI 24432: Email from you
240-241
Release in full
s 22
40
08/10/18-10/10/18
FOI 24432: Internal correspondence
242-247
Exempt in full
s 47C
s 47E(d)
41
10/10/2018
FOI 24432: Email from you
248-249
Release in full
s 22
13
42
17/4/18
FOI 24432: Internal correspondence and documents that were attached
250-266
Exempt in full
s 47C
to another email within scope
s 47E(d)
43
12/10/18
FOI 24432: Internal correspondence
267-275
Exempt in full
s 47C
s 47E(d)
14
FOI
Schedule 2
Schedule of relevant provisions in the FOI Act
3
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.
11
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).
15
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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Access to edited copies with exempt or irrelevant matter deleted
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
(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:
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(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.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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Documents subject to legal professional privilege
(1)
A document is an exempt document if it is of such a nature that it would be privileged from
production in legal proceedings on the ground of legal professional privilege.
(2)
A document is not an exempt document because of subsection (1) if the person entitled to
claim legal professional privilege in relation to the production of the document in legal
proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
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:
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(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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