FOI
Statement of reasons made under the Freedom of Information Act 1982
Decision and reason for decision of Leia (Position Number 62210022), Information Law
Section, Legal Services and Assurance Branch, Department of Veterans’ Affairs
Applicant:
Julie (Right to Know)
Decision date:
12 November 2018
FOI reference number:
FOI 25066
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie,
Freedom of Information Request: FOI 25066
1.
I have made a decision to refuse access to the documents relevant to your request.
Summary
2.
I, Leia (Position Number 62210022), Assistant Director, 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 13 October 2018, you made a request for access to documents in the possession of the
Department. Your request sought access to:
“…
the minutes of the DVA Audit and Risk Management Committee for FY17/18 …”
4.
As no extensions of time have been applied to process your request, a decision on your request is
due 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 six (6)
documents relevant to your request, as set out above. The documents relevant to your request are
listed at
Schedule 1.
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Decision
7.
I have made a decision to refuse access to the documents relevant to your request. The documents
that I have chosen to refuse access to are set out in
Schedule 1, together with applicable exemption
provisions.
Material taken into account
8.
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 refuse access to the
documents follows.
9.
I have taken the following material into account in making my decision:
the terms of your request;
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 45
Documents communicated in confidence
- Section 47C Public interest conditional exemptions--deliberative processes
- Section 47E Public interest conditional exemptions--certain operations of agencies; and
the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
FOI Guidelines).
10.
A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
11.
I have decided to refuse access to documents within the scope of your request in accordance with
the following exemptions in the FOI Act:
Documents containing material obtained in confidence (section 45)
12.
Section 45 of the FOI Act provides that a document is an exempt document if its disclosure under the
Act would found an action by a person for a breach of confidence. The FOI Guidelines provide that,
2
To found an action for breach of confidence (which means s 45 would apply), the following five
criteria must be satisfied in relation to the information:
(a) it must be specifically identified;
(b) it must have the necessary quality of confidentiality;
(c) it must have been communicated and received on the basis of a mutual understanding
of confidence;
(d) it must have been disclosed or threatened to be disclosed, without authority; and
(e) unauthorised disclosure of the information has or will cause detriment.
13.
The documents you seek access to contain confidential details of deliberations of the Department’s
financial affairs, risks, fraud controls and fraud investigations.
14.
The information over which this exemption is claimed can be specifically identified, and includes all
information contained in the Audit and Risk Management Committee minutes. Some of the
information in those minutes relates to the Department’s ongoing affairs.
15.
As required under the
Public Governance, Performance and Accountability Act 2013 (PGPA Act), the
Department has established appropriate internal systems and controls for the positive and
transparent oversight and management of risk. Effective risk management, considering both threat
and opportunity, leads to well informed decision making, and this is crucial for the Department
during a sustained period of service delivery innovation. In this way, our Risk Management
Framework enables the Department to identify and manage maximum benefits derived from new
initiatives, challenges and opportunities.
16.
Enterprise risks are oversighted by the Audit and Risk Committee (
Committee), which was
established in compliance with section 45 of the PGPA Act and PGPA Rule 17 Audit Committees for
Commonwealth Entities. The Committee’s role is to provide independent assurance to the Secretary
on the following four functions (as per the Department of Finance — Resource Management Guide
202):
(a) financial reporting;
(b) performance reporting;
(c) system of risk oversight and management; and
(d) system of internal control.
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17.
In addition to the key functions, the ARC also considers matters relating to:
(a) legislative and policy compliance;
(b) internal audit;
(c) external audit; and
(d) relevant parliamentary committee reports and external reviews.
18.
The Committee is to provide advice to the Secretary of the Department in order to give confidence in
connection with the appropriateness of the four functions listed above. As such, the Committee must
review the appropriateness of the Department’s financial reporting, performance reporting, system
of risk oversight and management, and system of internal control.
19.
The Committee is also to support the Secretary by reviewing the appropriateness of the
Department’s system of risk oversight and management taking account of the Department’s
purposes and specific operating context. The Committee’s role is to include reviewing whether
identified risks and their treatments are consistent with the committee’s understanding of the
Department’s operating context and the committee’s experience in risk management.
20.
This task is crucial to the effectiveness of and ultimate compliance with the PGPA Act. The
Committee’s relationship with the Secretary is crucial to the committee’s effectiveness.
21.
From the time the Committee commenced, it has operated on the understanding that information
would be treated as confidential and that members of the Committee must not use or disclose
information obtained by the Committee except in meeting their responsibilities or where required to
do so by law. A part of this process included the discussion of matters with other parties, subject to
confidentiality considerations. To ensure best record keeping can take place, it is important that
discussions within those meetings and the subsequent minutes of this and other such Committees,
are not compromised. This information would be used and disclosed only as needed to progress
related matters for related purposes, or to the extent that information is required to be disclosed in
accordance with any legal obligations.
22.
The relevant information claimed to be exempt under section 45 was received on the basis of a
mutual understanding of confidence. The information in the documents is only known to those with
a need to know, being a limited group of people and has not been broadly disclosed.
23.
For the above reasons, I am satisfied that the documents you seek access to are created and received
in confidence and disclosure would found an action for breach of confidence. As the documents are
exempt under section 45 of the FOI Act I am not required to consider any public interest.
4
Public interest conditional exemptions--deliberative processes (section 47C)
24.
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
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. I consider that the documents in
issue are conditionally exempt under section 47C of the FOI Act in their entirety.
25.
The FOI Guidelines provide that a deliberative process involves the exercise of judgement in
developing and making a selection from different options. In particular, the Guidelines state that:
“... t
he action of deliberating, in commons understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing upon one's
course of action. In short, 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…”
26.
A deliberative process may include the recording or exchange of opinions, advice and/or
recommendations, as well as interim decisions or deliberations.
27.
The deliberative process must relate to the functions of the agency. As is evident in paragraphs 13 to
23 above, the Committee’s functions directly relate to the functions of the Department.
28.
One relevant ‘deliberative process’ these documents relate to, concerns the Committee’s functions
in considering the relevant issues pertaining to the subject matters noted above. The specific
deliberations could involve discussions and evaluations of various factors including, but not limited
to, the nature of the relevant projects or audits and also whether they should be established. It can
also include discussions about the financial affairs of the Department as well as setting strategies and
policies to be followed or explored.
29.
As noted above, the Committee is to treat information as confidential and maintain the
confidentiality of its deliberations relating to its functions, where required. The information as
recorded in the documents in issue is clearly for the purposes of the thinking processes connected to
the Committee’s functions.
30.
Information over which this exemption is claimed is not purely operational information or factual
material. To the extent that there is non-deliberative material within the conditionally exempt
sections, I am satisfied that the deliberative and non-deliberative matter is inextricably intermingled,
and cannot be disclosed without revealing the contents of the deliberative material.
31.
The reasons provided in paragraphs 13 to 23 above also apply to this exemption, in terms of context
as well as justification of the application of section 47C of the FOI Act to these documents.
5
32.
Accordingly, I have decided that 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).
Public interest conditional exemptions--certain operations of agencies (section 47E)
33.
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;
(d)
have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
34.
The reasons provided at paragraphs 13 to 35 above also apply to this exemption, in terms of context
as well as justification of the application of section 47E(a), (b) and (d) of the FOI Act to these
documents.
35.
Further to this, unauthorised disclosure of information relating to either the process or discussions
about audits, risks or fraud to the Department, could reasonably be expected to have a substantial
adverse effect on the Department’s management of these issues.
36.
It is important the Department is able to capture as fulsome and as accurate as possible, minutes of
these meetings. The effectiveness and openness of these meetings is in part due to the ability of
participants to openly share their opinions on the types of issues raised in those meetings; noting
again that information is to be treated confidently and within a limited group of people. This has a
flow on effect to the overall effectiveness of the Department’s process and policies. This will also
impact on the level of detail provided by participants in the meetings. The release of information in
the documents could reasonably be expected to affect the ability of individuals to provide similar and
as detailed information in future meetings. This could reasonably result in a perception that the
Department lacks integrity with respect to protecting the confidentiality of these types of records;
thus affecting the proper and efficient conduct of the operations of the Department.
6
37.
Any action, including by releasing these documents under the FOI Act, that could or would limit the
effectiveness and openness of these meetings or record keeping, will have an adverse effect on the
efficient conduct of the operations of the Department.
38.
Accordingly, I have decided that 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).
Application of the public interest test to exemptions applied under sections 47C and 47E
39.
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.
40.
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;
(b) disclosure would inform debate on a matter of public importance; and
(c) disclosure would promote effective oversight of public expenditure.
41.
I also considered the following factors which do not favour disclosure:
(a) disclosure would, or could reasonable be expected to, prejudice the effectiveness of
procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) disclosure would, or could reasonable be expected to, prejudice the attainment of the
objects of particular tests, examinations or audits conducted or to be conducted by an
agency;
(c) 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;
(d) disclosure would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or that organisation
or undertaking in respect of its lawful business, commercial or financial affairs;
(e) disclosure could reasonably be expected to prejudice the future supply of information to
the Commonwealth for the purpose of the administration of a law of the Commonwealth
or the administration of matters administered by an agency;
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(f) disclosure could reasonably be expected to prejudice security, law enforcement, public
health or public safety;
(g) disclosure could reasonably be expected to prejudice an agency’s ability to obtain
confidential information;
(h) disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future;
(i) disclosure could reasonably be expected to harm the interests of an individual or group of
individuals;
(j) disclosure could reasonably be expected to prejudice the conduct of investigations, audits
or reviews by the Ombudsman or Auditor-General; and
(k) disclosure could reasonably be expected to prejudice the effectiveness of testing or
auditing procedures.
42.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the
FOI Act.
43.
It is reasonable to consider that individuals participating in the relevant Committee meetings expect
a level of confidence and privacy when discussing sensitive matters relating to the operations,
security and financial affairs of the Department. As such, it is reasonable that these participants
would expect the Department to maintain a high level of confidentiality in respect to documents that
maintain a record of any discussions that has taken place.
44.
Releasing the documents you seek access to could reasonably be expected to adversely impact on
the Department’s ability to gain the confidence of the Committee, or other current or future
Committees, and the provision of relevant information in the future. Further, this could significantly
undermine the value of these meetings and ultimately undermine the ability of the Department to
discuss sensitive issues impacting the Department in the future. Likewise, with respect to the
Committee’s deliberations, disclosure is likely to undermine the Committee’s expectation of
confidentiality with respect to its deliberations. This in turn, is likely to have an adverse effect on the
Committee’s willingness to openly discuss, share opinions and deliberate on issues, substantially
interfering with its ability to operate as an effective independent advising body to the Secretary of
the Department.
45.
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.
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Information Publication Scheme
46. The Information Publication Scheme requires the Department to publish information released in
response to individual requests made under the FOI Act, except in specified circumstances. Details of
your request will not be published on the Department’s disclosure log as no documents have been
released to you.
Your rights of review
47.
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
48.
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.
49.
You can make your application for internal review in one of the following ways:
Post: Legal Services & General Counsel Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
50.
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
51. 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
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Contact us
52.
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, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Leia (Position Number 62210022)
Assistant Director
Information Law Section | Legal Services & Assurance Branch
Legal Assurance and Governance Division
12 November 2018
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).
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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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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;
13
(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).
45
Documents containing material obtained in confidence
(1)
A document is an exempt document if its disclosure under this Act would found an action,
by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of
confidence.
(2)
Subsection (1) does not apply to a document to which subsection 47C(1) (deliberative
processes) applies (or would apply, but for subsection 47C(2) or (3)), that is prepared by a
Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the
course of his or her duties, or by a prescribed authority or Norfolk Island authority in the
performance of its functions, for purposes relating to the affairs of an agency or a
Department of State unless the disclosure of the document would constitute a breach of
confidence owed to a person or body other than:
(a)
a person in the capacity of Minister, member of the staff of a Minister or officer of
an agency; or
(b)
an agency, the Commonwealth or Norfolk Island.
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;
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(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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