Our reference: FOIREQ19/00188
O Wendell
By Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request
Dear O Wendell
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (Cth) (the FOI Act) and received by the Office of the Australian Information
Commissioner (OAIC) on 16 August 2019
In your request you seek access to the following:
copies of invoices given to the OAIC by Holding Redlich and HWL Ebsworth in respect
of their services related to consideration of whether the OAIC’s contractual
arrangements with Hotjar comply with the requirements of the Privacy Act.
On 11 September 2019 you advised that you:
consent to the OAIC redacting the personal information of …... and any other person
from any relevant document/invoice who is not/was not an OAIC staff member
and/or public servant. I also consent to the OAIC redacting the hourly rates charged
by Holding Redlich and HWL Ebsworth and the amount of time spent by those law
firms on matters to which the invoices relates.
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 two documents within the scope of your request. There is one invoice sent
from Holding Redlich to the OAIC. The other document is an invoice sent from HWL Ebsworth
to the OAIC.
I have decided to give you access to both documents in part, with exempt material redacted
under ss 47E(d) and 47G(1)(a) of the FOI Act.
I have also made redactions under s 22 where information is irrelevant because you have
excluded it from the scope of your request by email dated 11 September 2019.
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
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 16 August 2019
• the FOI Act, in particular sections 22, 47E, 47G and 11A
• the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act (the FOI Guidelines)
Certain operations of agencies conditional exemption – s 47E(d)
I have decided that documents 1 and 2 are conditionally exempt in part under s 47E(d) of the
FOI Act.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure could
reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
Section 47E(d) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
The FOI Guidelines at [6.101] provides:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably
expected to occur. The term ‘could reasonably be expected’ is explained in greater detail in
Part 5. There must be more than merely an assumption or allegation that damage may occur
if the document were to be released.
Additionally, at [6.103] the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure. The
particulars of the predicted effect should be identified during the decision making process,
including whether the effect could reasonably be expected to occur. Where the conditional
exemption is relied upon, the relevant particulars and reasons should form part of the
decision maker’s statement of reasons, if they can be included without disclosing exempt
material (s 26, see Part 3).
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In order to determine whether disclosure would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of the OAIC, I
have taken into consideration the functions and activities of the OAIC.
As a Commonwealth agency, members of the public are able to make complaints about the
OAIC through various means. This includes, but is not limited to, service complaints,
complaints to the Commonwealth Ombudsman, public interest disclosures and privacy
complaints. The documents at issue concern a complaint made about the OAIC.
Individuals who make complaints do so with the understanding that investigations about
their complaints will be conducted in confidence, and that all information obtained during
the course of the investigation will not be disclosed.
In order to effectively conduct complaint investigations, it is necessary for the OAIC to openly
engage with the relevant parties. Open engagement is imperative during an investigation as
the OAIC relies upon the candour and frankness of the disclosure to provide pertinent
information that will inform the OAIC’s view. As such, the OAIC’s ability to work with parties
to elicit information, imperative to the investigation, will be adversely affected by the
disclosure of the documents.
If the documents at issue were disclosed under the FOI Act, contrary to the parties’
expectation of confidentiality, it is likely that the parties will be less likely to make
complaints to Commonwealth agencies and parties will be less likely to be frank and
participate fully in investigations, if there was an expectation that documents provided
during the investigation would be disclosed under the FOI Act.
Therefore, I consider that disclosure of the relevant documents could reasonably be
expected to have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC in investigating complaints about the OAIC. I find that the documents
at issue are conditionally exempt under s 47E(d) of the FOI Act
Business affairs exemption – s 47G(1)(b)
Under s 47G(1) of the FOI Act, a document is, relevantly here, conditionally exempt if its
disclosure under this Act would disclose information ... concerning the business, commercial
or financial affairs of an organisation .. in a case in which the disclosure of the information
could:
(a) reasonably be expected to unreasonably affect that.... organisation .. in respect of
its lawful business, commercial or financial affairs.
The FOI Guidelines explain that the test ‘would, or could reasonably be expected’ requires
the decision maker to assess the likelihood of the predicted or forecast event, effect or
damage occurring after disclosure of a document ([5.16]). The word ‘could’ is less stringent
than ‘would’ and requires analysis of the reasonable expectation rather than certainty of an
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event, effect or damage occurring. It may be a reasonable expectation that an effect has
occurred, is presently occurring, or could occur in the future ([5.17]).
The FOI Guidelines explain that the term ‘unreasonably’ implies a need to balance public
and private interest factors to decide whether disclosure is unreasonable ([6.187]). The test
of reasonableness applies not to the claim of harm but to the objective assessment of the
expected adverse effect ([6.188]).
The documents contain specific information about the billing process of both law firms, and
if disclosed would reveal details of how the law firms deal with their clients. If information on
pages 1, 3 and 6 of the documents was disclosed the law firms could be affected in their
dealings with other clients.
On examination of the information contained in the documents, I am satisfied that the
information contained in one of the documents constitutes business information of a third
party. The disclosure of this information could reasonably be expected to unreasonably
affect that organisation in respect of its lawful business, commercial or financial affairs.
Therefore, I am satisfied that the specific information contained in the invoices is
conditionally exempt under s 47G(1)(b) of the FOI Act.
Public interest test – s 11A(5)
Section 11A(5) of the FOI Act provides that access must be given to a conditionally exempt
document unless in the circumstances giving access would, on balance, be contrary to the
public interest.
In considering where the public interest lies, I must consider the factors that favour
disclosure balanced against the factors that favour non-disclosure.
The public interest factors that would favour disclosure is that the disclosure would promote
the objects of the FOI Act and promote effective oversight of public expenditure.
Against these factors I must balance any factors against disclosure. The FOI Act does not
specify any factors against disclosure, however the FOI Guidelines, at paragraph [6.22],
provide a non-exhaustive list of factors against disclosure. This includes factors such as
when disclosure could;
• prejudice the competitive commercial activities of a group of individual or businesses
• prejudice the interests of third parties dealing with the government
• prejudice the ability of agencies to engage law firms
• reasonably be expected to prejudice the efficient management of the OAIC.
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• reasonably be expected to impede the ability of the OAIC to continue to investigate
complaints with a mutual understanding that information obtained during the course of
an investigation will not be disclosed
• reasonably be expected to prejudice the OAIC’s ability to thoroughly investigate current
and future complaints
On balance, I consider that the factors against disclosure outweigh the factors in favour of
disclosure. I have therefore decided that it would be contrary to the public interest to give
you access to the information that I have found to be conditionally exempt under ss 47E(d),
and 47G of the FOI Act.
Please see the following page for information about your review rights and information the
OAIC's disclosure log.
Yours sincerely,
Megan McKenna
FOI Officer
Legal Services
15 October 2019
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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, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable that
my decision be considered by the AAT, the Information Commissioner may decide not to
undertake an IC review.
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 FOIREQ19/00188
Document
Date
Description
Decision on Access
Exemption
Page
No
1.
31 May 2019
Invoice
Exempt in part
ss 47E(d) and 47G
1-3
2.
31 July 2019
Invoice
Exempt in part
ss 47E(d) and 47G
4-6
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
