FOI
Internal review decision made under the Freedom of Information Act 1982
Internal review decision and reasons for decision of Alison (Position Number 62210358)
Information Law, Legal Services & Assurance
Applicant:
Julie via Right to Know
Date of primary decision:
12 November 2018
FOI reference number:
FOI 25115
Internal review decision date:
28 March 2019
Internal review reference number:
IR 25506
Dear Julie
1. The purpose of this letter is to give you a decision about your request for internal review under the
Freedom of Information Act 1982 (FOI Act).
2. I have made a decision to vary the original decision made by Julie (Position Number 62212962), Legal
Officer, Information Law, Legal Services & Assurance, to release documents subject to your request in
part.
Summary
3. I, Alison (Position Number 62210358), Legal Officer, Information Law, Legal Services & Assurance, am
an officer authorised by the Secretary of the Department of Veterans’ Affairs (the Department) to
review decisions about access to documents in the possession of the Department in accordance with
section 54C of the FOI Act.
4. On 11 October 2018 you made a request for access to documents in the possession of the Department
of Veterans’ Affairs (the Department). Your request sought access to:
“…Under FOI I seek a 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
1
^DVA FOI 24297
^DVA FOI 24465
^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)…”
5. On 12 November 2018 you were provided with a decision relating to access to documents within scope
of your request. The forty three (43) documents relevant to your request were provided to you in part,
in accordance with sections 22, 42, 47C and 47E of the FOI Act.
6. On 15 November 2018 you requested an internal review of the decision to grant access in part.
7. The Department has undertaken a search of its records and has identified all documents that fall within
the scope of your request, as set out above. The documents relevant to your request are listed in the
schedule of documents at Schedule 1.
Decision and Reasons for Decision
8. I have made a decision to vary the original decision made by Julie (Position Number 62212962), Legal
Officer, Information Law, Legal Services & Assurance on 12 November 2018, to release documents
subject to your request in part.
9. 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.
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 grant
partial access to documents follow.
11. I have taken the following material into account in making my decision:
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 22
Access to edited copies with exempt or irrelevant material deleted
- Section 42
Documents subject to legal professional privilege
- 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 provisions I used to make my decision are provided in Schedule 2.
2
Documents subject to legal professional privilege (s42)
13. Section 42(1) exempts a document that is of such a nature that it would be privileged from production
in legal proceedings on the ground of legal professional privilege (LPP). The underlying policy basis for
LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the
effective administration of justice.
14. 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.
15. I have decided to affirm the original decision made by Julie (Position Number 62212962) to redact parts
of the documents relevant to your request in accordance with this exemption provision. My reasons
follow.
Legal adviser-client relationship
16. As noted in the original decision, the Department engaged an independent external legal adviser to
undertake work to finalise FOI 24563. I am satisfied that the requisite legal adviser-client relationship
existed between the Department and the external legal adviser.
Dominant purpose
17. The material which I have decided to exempt under this exemption provision includes email
correspondence between the Department and the external legal adviser about FOI 24563. The
correspondence was made for the dominant purpose of obtaining or giving legal advice in connection
with this matter.
Confidentiality
18. I am satisfied that the correspondence between the Department and the external legal adviser was
developed on the understanding that the usual and well-established relationship of confidence
between solicitor and client existed. I am therefore of the view that the material is confidential for the
purposes of section 42.
No waiver
19. As explained in the original decision, 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.
20. Privilege can be waived either expressly or by implication. A person entitled to claim privilege can
impliedly waive that privilege if their conduct 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.
21. I uphold the original decision-maker’s view that there is no evidence to indicate that the substance of
the communications which has been marked as exempt under this exemption provision has been
disclosed more broadly, or used in any way that would be inconsistent with maintaining the
confidentiality of the communications.
3
22. Accordingly, I am satisfied that legal professional privilege exists over the documents I have identified
at
Schedule 1. I am of the view that this material is exempt under section 42 of the FOI Act.
Conditional Exemptions
23. Where a document is assessed as conditionally exempt, the agency or minister must give access to it
unless in the circumstances access would, on balance, be contrary to the public interest (s 11A(5)). The
public interest test is weighted in favour of giving access to documents so that the public interest in
disclosure remains at the forefront of decision making. The statement of reasons for the decision must
include the public interest factors taken into account (s 26(1)(aa)). Further guidance on conditional
exemptions and the public interest test is in Part 6.
Certain operations of agencies (s47E)
24. Section 47E conditionally exempts documents where disclosure would, or could reasonably be
expected to, prejudice or have a substantial adverse effect on certain listed agency operations.
25. I have decided to affirm the original decision to exempt the surnames of non-Senior Executive
departmental staff and direct contact details of staff because I am satisfied that the release of this
material 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
47(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.
26. As outlined in the original decision, the Department has established certain channels of communication
to allow clients and other relevant stakeholders to contact the Department. These lines of
communication have been implemented to ensure that all Departmental resources are managed as
efficiently as possible as well as to protect the wellbeing and safety of Departmental staff.
27. I am satisfied that releasing the surnames and direct contact details of staff in the circumstances would
have an adverse effect on the Department’s ability to engage in its operations properly and efficiently
as the established lines of communication could be circumvented, disrupting the staff’s ability to
provide services and carry out the other operations and functions of the Department in a proper and
efficient manner.
28. I also consider that releasing the material in the circumstances could have a substantial adverse effect
on the management or assessment of personnel. There have been circumstances in which
Departmental staff have been targeted, insulted or harassed both internally as well as online based on
the release of their name and/or direct contact details. As such, releasing the names and direct contact
details of staff could have a substantial adverse effect on the Department’s ability to manage the
welfare of staff and retention of personnel by the Department.
29. Accordingly, I have decided that parts of the 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:
30. 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.
4
31. In order to assess whether release of the exempt material would be contrary to the public interest, I
considered the following factor which favours disclosure:
(a)
disclosure would promote the objects of the FOI Act., including enhance the
scrutiny of government decision making.
32. 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;
(b)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of the Department;
(c)
disclosure could reasonably be expected to harm the interests of an individual or
group of individuals, in this instance, non-Senior Executive staff of the Department;
and
(d)
disclosure could reasonably be expected to prejudice the management function of
the Department.
33. On balance, I considered that the public interest 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.
Material redacted under section 22
34. As was noted in paragraph 9 of the original decision, parts of the documents contains information
outside of the date range you specified in your request (17 August 2018 to 11 October 2018 inclusive). I
have maintained the redaction of this material under section 22 on this basis.
35. In your request you specified the following ‘where documents consist of the same chain of identical
emails, only the most recent chain is to be copied.’ In your request for internal review, you expressed
concern about the number of pages which were redacted under section 22 of the FOI Act in accordance
with the original decision. As advised in paragraph 9 of the original decision, duplicates of email chains
were redacted under section 22. In an effort to address your concern, I have removed the redactions
applied under section 22 to this material.
36. Further, parts of the documents contain information irrelevant to the scope of your request. I have also
redacted this information under section 22.
Your rights of review
Your rights of review
37. If you are dissatisfied with my decision, you may apply for Information Commissioner review of the
decision.
Information Commissioner Review
38. Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to review
my decision. An application for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following ways:
5
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.
39. More information about your review rights under the FOI Act is available in Fact Sheet 12 published by
the Office of the Australian Information Commissioner: http://oaic.gov.au/freedom-of-information/foi-
resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-rights
Contacts
40. If you wish to discuss this decision, please do not hesitate to contact me using the following details:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely
Alison (Position Number 62210358)
Legal Officer
Information Law
Legal Services & Assurance
28 March 2019
6
s 47E(c)
s 47E(d)
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 47E(c)
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 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 47E(c)
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.
17
No date
FOI 24465: File notes
172-176
Release in part
s 22
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
Release in part
s 22
s 47E(c)
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
Release in part
s 22
s 47E(c)
s 47E(d)
8
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
Release in part
s 22
s 47E(c)
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 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
Release in part
s 22
20/09/18
s 47E(c)
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
Release in part
s 22
s 47E(c)
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
Release in part
s 22
s 47E(c)
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 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
Release in full
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
Release in part
s 22
s 47E(c)
s 47E(d)
41
10/10/2018
FOI 24432: Email from you
248-249
Release in full
s 22
9
42
17/4/18
FOI 24432: Internal correspondence and documents that were attached
250-266
Release in full
s 22
to another email. The documents attached to the email are out of scope
for this request because the documents were found to be out of scope
for FOI 24432.
43
12/10/18
FOI 24432: Internal correspondence
267-275
Release in part
s 22
s 47E(c)
s 47E(d)
10
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).
11
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).
22 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
12
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(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.
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.
26 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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42 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.
Public interest conditional exemptions
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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