Our reference: FOIREQ18/00152
Julie
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information request – Decision on access
Dear Julie
I refer to your request for access to documents under the
Freedom of Information Act 1982
(Cth) (the FOI Act), received by the Office of the Australian Information Commissioner (OAIC)
on 11 October 2018.
You requested access to:
… all documents (including emails, sms messages, file notes and any other ‘document’ type the
FOI Act recognises) between the OAIC (which should mostly be Carl English) and any other area
of the OAIC and any employee of the DVA that relate or refer to:
^ DVA FOI 24434
^ OAIC RQ18/02960 and
^ any communication about me
The scope of time period is 17 August 2018 to 11 October 2018 inclusive.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have identified eight documents falling within the scope of your request. I have decided to
grant you access to six documents in full. I have decided to grant you access to two
documents in part, with exempt material deleted under s 47F of the FOI Act.
A schedule describing each document and the access decision I have made is at Appendix A
to this decision.
Reason for decision
Material taken into account
In making my decision, I have had regard to the following:
your freedom of information request of 11 October 2018
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
the documents at issue
the FOI Act, in particular ss 11A(5), 22 and 47F
the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act to which regard must be had in performing a function or exercising a power
under the FOI Act (the FOI Guidelines), particularly at [3.95]-[3.100], [6.7]-[6.28],
[6.124]-[6.157] and [6.161]-[6.172].
Personal privacy conditional exemption (s 47F)
I have decided that documents 6 and 7 are conditionally exempt in part under s 47F of the
FOI Act. The relevant material is the name of a departmental officer.
Section 47F of the FOI Act conditionally exempts documents where disclosure would involve
the unreasonable disclosure of personal information of any person (including a deceased
person). This exemption is intended to protect the personal privacy of individuals.
Personal information in the FOI Act has the same meaning as in the
Privacy Act 1988 (Cth)
(Privacy Act). Under s 6 of the Privacy Act, personal information means:
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 a material for or not
I am satisfied that the name of the departmental officer is personal information for the
purposes of the FOI Act.
In determining whether disclosure of personal information would be unreasonable, s 47F(2)
of the FOI Act requires me to have regard to the following matters:
the extent the information is well known
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
the availability of the information from publically accessible sources
any other matters I consider relevant.
The FOI Guidelines provide that where a public servant’s personal information is included in
a document because of their usual duties or responsibilities, it would not be unreasonable to
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disclose, unless special circumstances exist (at [6.153]). The FOI guidelines at [6.156] provide
a non-exhaustive list of examples of special circumstances.
I find that documents 6 and 7 contain the full name of a public servant, appearing in the
context of the documents as part of their usual duties and responsibilities.
The Department has provided confidential submissions which it contends identify special
circumstances that would make it unreasonable to disclose the surname of the
departmental officer identified in documents 6 and 7.
I note that pursuant to s 26(2) of the FOI Act, this notice 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.
I have considered the Department’s submissions and I am satisfied that special
circumstances exist in this case that mean disclosure of a departmental officer’s surname
would be unreasonable. The surname of the departmental officer is conditionally exempt
under s 47F of the FOI Act.
Public interest test (s 11A(5))
Under s 11A(5) access must be given to a conditionally exempt document unless in the
circumstances giving access would, on balance, be contrary to the public interest.
I have identified one public interest factor that would favour disclosure: that disclosure
would promote the objects of the FOI Act.
Against this factor, I consider that disclosing the surname of the departmental officer could
reasonably be expected to prejudice the protection of an individual’s right to privacy and
prejudice the management function of an agency.
In determining where the public interest lies, I must consider the factors that favour
disclosure balanced against factors that favour non-disclosure. In this instance, on balance, I
consider that the factors against disclosure outweigh the factor in favour of disclosure.
Therefore, I have decided that it would be contrary to the public interest to give access to the
material I have found to be conditionally exempt under s 47F of the FOI Act.
Yours sincerely
Megan McKenna
FOI Officer
Legal Services
12 November 2018
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review will be conducted, to the extent possible, by an officer of the OAIC who
was not involved in or consulted in the making of my decision. If you wish to apply for an
internal review, you must do so in writing within 30 days. There is no application fee for
internal review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
reviewed.
Further Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If
you wish to apply for IC review, you must do so in writing within 60 days. Your application
must provide an address (which can be an email address or fax number) that we can send
notices to, and include a copy of this letter. A request for IC review can be made in relation to
my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, it is likely that the
Information Commissioner will decide (under s 54W(b) of the FOI Act) not to undertake an IC
review on the basis that it is desirable that my decision be considered by the AAT.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email
to xxx@xxxx.xxx.xx, or by fax on
02 9284 9666.
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Accessing your information
If you would like access to the information that we hold about you, please
contac
t xxxxx@xxxx.xxx.xx. More information is available on th
e Access our
information page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or business
information that it would be unreasonable to publish.
The documents I have decided to release to you do not contain business or personal
information that would be unreasonable to publish. As a result, the documents will be
published on ou
r disclosure log shortly after being released to you.
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Appendix A: Schedule of documents – Freedom of Information request no FOIREQ18/00152
Document No.
Date
Description
Decision on Access
Exemption
1
10 October 2018
Email from DVA to OAIC
Release in full
2
10 October 2018
Email attachment
Release in full
3
11 September 2018
Email attachment
Release in full
4
27 September 2018
Email attachment
Release in full
5
3 October 2018
Email attachment
Release in full
6
10 October 2018
Email from OAIC to DVA
Exempt in part
47F
7
10 October 2018
Email attachment
Exempt in part
47F
8
11 October 2018
File note
Release in full
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
