If not delivered return to PO Box 7820 Canberra BC ACT 2610
24 October 2019
Our reference: LEX 45328
Posty
Right to Know
Only by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Posty
Decision on your Freedom of Information Request
You have requested the Information Commissioner (
IC) review the Department of Human
Services’ (
department) internal review decision dated 3 May 2017 (LEX 42754) (
internal
review decision) in relation to your request for access to documents under the
Freedom of
Information Act 1982 (
FOI Act).
Your request was for access to the following documents:
'(1) All documents contained within the file "EIC online compliance interventions 110-
13090000" as listed on this page - referred to as your "Operational Blueprint" portal:
http://operational.humanservices.gov.au/public/Pages/compliance-and-reviews/110-
13090000-01.html
This includes all five "tabs" on the page - Background, Process Summary, Process,
References and Resources.
(2) All documents contained within the file "Check and update past income (CUPI)
service 110-18100129" as listed on this page - referred to as your "Operational
Blueprint" portal: http://operational.humanservices.gov.au/public/Pages/compliance-
and-reviews/110-18100129-01.html
This includes all six "tabs" on the page - Background, Process Summary, Process,
References, Resources and Training & Support.’
Background
The department holds two documents (totalling 52 pages) that relate your request.
The department’s internal review decision decided to refuse you access in full to both
documents on the basis that both documents contain material that is conditionally exempt
under section 47E(d) of the FOI Act, and release is contrary to the public interest.
Variation of the internal review decision
Section 55G of the FOI Act provides that the department may vary, or set aside and
substitute, the internal review decision at any time during IC review if the variation or
substitution (
revised decision) would have an effect of, among other things, giving access to
documents sought in accordance with a request.
PAGE 1 OF 8
The department has decided to make a revised decision under section 55G of the FOI Act in
relation to your request.
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to vary the department’s internal review decision and
grant you part access to both documents on the basis that both documents contain material that is conditionally
exempt under section 47E(d) of the FOI Act, and release is contrary to the public interest.
Please see the schedule at
Attachment A to this letter for a detailed list of the documents
and the reasons for my decisions, including the relevant sections of the FOI Act.
How we will send the documents to you
The documents are
attached.
Please note that the material contained in these documents is not reflective of current
departmental process. Documents 1 and 2 are no longer current Operational Blueprints and
have been superseded.
You can ask for a review of this revised decision
If you disagree with any part of this revised decision, you can advise the Office of the
Australian Information Commissioner (
OAIC) that you wish to continue with the IC review of
your request. You do not have to pay for reviews of decisions.
Attachment B provides more information about how to continue the review process.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Nicole
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
PAGE 2 OF 8
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE
Posty (Right to Know) – LEX 45328
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1
1-19
Accessed
"EIC online
Exempt in part
s 47E(d)
Document contains material affecting operations of the
18.03.2019
compliance
department under s 47E(d) of the FOI Act.
interventions 110-
13090000"
2
20-52
Accessed
"Check and update
Exempt in part
s 47E(d)
Document contains material affecting operations of the
18.03.2019
past income
department under s 47E(d) of the FOI Act.
(CUPI) service
110-18100129"
PAGE 3 OF 8
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
On 26 February 2019, the department received your request for access to the following
documents under the FOI Act:
'(1) All documents contained within the file "EIC online compliance interventions 110-
13090000" as listed on this page - referred to as your "Operational Blueprint" portal:
http://operational.humanservices.gov.au/public/Pages/compliance-and-reviews/110-
13090000-01.html
This includes all five "tabs" on the page - Background, Process Summary, Process,
References and Resources.
(2) All documents contained within the file "Check and update past income (CUPI)
service 110-18100129" as listed on this page - referred to as your "Operational
Blueprint" portal: http://operational.humanservices.gov.au/public/Pages/compliance-
and-reviews/110-18100129-01.html
This includes all six "tabs" on the page - Background, Process Summary, Process,
References, Resources and Training & Support.’
What I took into account
In reaching my decision I took into account:
• your request dated 26 February 2019;
• the department’s original decision dated 28 March 2019 (LEX42754);
• the department’s internal review decision dated 3 May 2019 (LEX43566).
• your request for Information Commissioner review;
• the documents falling within the scope of your request;
• consultations with departmental officers about:
o the nature of the documents; and
o the department's operating environment and functions;
• relevant case law;
• guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (
Guidelines); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that both documents are exempt in part under the FOI Act. My findings of
fact and reasons for deciding that the exemption applies to the documents are discussed
below.
PAGE 4 OF 8
Section 47E – Public interest conditional exemptions – certain operations of agencies
I have decided to refuse access to parts of both documents under the conditional exemption
in section 47E(d) of the FOI Act.
Section 47E(d) of the FOI Act provides:
‘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.’
Does the document contain information regarding the operations of the department?
The documents outline the department’s internal procedures for Compliance Officers when
they are assisting customers to complete online compliance activities under the Earned
Income Confirmation (EIC) Programme or the Check and Update Past Information (CUPI)
Programme. The documents contain material relating to how the department investigates,
assesses and undertakes online compliance activities.
Accordingly, I am satisfied that the documents contain information regarding the operations
of the department.
Would disclosure of the information have a substantial adverse effect on the operations of
the department?
Paragraph 5.20 of the Guidelines explains that ‘substantial adverse effect’ is broadly taken to
mean ‘an adverse effect which is sufficiently serious or significant to cause concern to a
properly concerned reasonable person’.
The documents disclose information about the EIC Programme and the CUPI Programme
infrastructure and workflows that underpin the delivery of these measures. There is a
reasonable expectation that if this information were made publicly available, it would have
the capacity to undermine the department's operations relating to delivery and
implementation of online compliance and payment integrity measures.
I consider that the release of certain material contained in the documents could provide a
means for customers to misrepresent their circumstances, including their employment
income. Such activity could ultimately increase the risk of fraudulent behaviour from
customers and financial miscalculation by the department. I consider that this would have a
serious adverse effect on the proper and efficient conduct of the operations of the
department.
In
Duncan and Chief Executive Officer of Centrelink [2011] AATA 660 (
Duncan), DP
Nicholson decided that that documents containing information regarding Centrelink’s debt
recovery processes were exempt under (then) section 40 of the FOI Act, which was in almost
identical terms to section 47E(d) as currently enacted. DP Nicholson held at [33]:
In reaching the opinion on the application of the exemption to the [debt documents] I
have had well in mind that if those matters, relating to the essential minimums to be
applied by the agency in applying the new streamlined process, were to not be
exempt there would be a predictable impact on the successful recovery of pensions,
benefits or allowances. The important feature of those provisions is that they go to the
PAGE 5 OF 8
Department of Human Services
heart of when and how the agency will exercise its discretion to seek recovery. What
is then being sought is recovery of payments to which there is no entitlement.
Knowledge of precisely how the agency will approach such recovery may itself be
encouraging of responses and accounting designed not to facilitate recovery but
rather to facilitate non-recovery.
You have also sought access to documents that relate to the department undertaking
compliance measures, the release of which may make it difficult for the department to
conduct future compliance activities. Therefore, I consider that the decision in Duncan is
analogous to the circumstances of your request.
I have decided that the release of certain material contained in the documents would
substantially and unreasonably affect the proper and efficient conduct of the operations of
the department. Therefore I have decided that parts of the documents are conditionally
exempt under section 47E(d) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides the following:
‘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.’
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure would:
•
promote the objects of the FOI Act;
•
inform debate on a matter of public importance; and
•
promote effective oversight of public expenditure.
I have also considered the relevant factors indicating that access would be contrary to the
public interest. In particular, I have considered:
•
disclose procedures or methods for the conduct of agency investigations;
•
prejudice the security and integrity of the department’s compliance measures;
•
prejudice the department’s ability to obtain and effectively utilise similar information in
the future; and
•
increase the risk of customer misrepresentation.
In
‘IN’ and Australian Taxation Office [2016] AICmr 33 (
IN), the (then) Acting Australian
Information Commissioner held that documents containing certain processes used by the
ATO when conducting audits were conditionally exempt under section 47E(d) and their
release was not in the public interest as release:
• could reasonably be expected to make it more difficult for the ATO to undertake audit
activities generally; and
PAGE 6 OF 8
Department of Human Services
• could have a substantial adverse effect on the proper and efficient conduct of ATO
operations.
I consider that the decision in IN is analogous to the circumstances of your request, where
you have sought access to documents that relate to the department undertaking compliance
measures, the release of which may make it difficult for the department to conduct future
compliance activities.
Based on these factors, I have decided that, in this instance, the public interest in disclosing
the information in the documents is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the
FOI Act in making this decision.
Summary of my decision
In summary, I am satisfied that parts of the documents are conditionally exempt under
section 47E(d) of the FOI Act. Furthermore, I am satisfied that the public interest in
disclosure is outweighed by the public interest against disclosure.
Accordingly, I have varied the department’s internal review decision dated 3 May 2019
(LEX43566) and have decided to grant you part access to the documents.
PAGE 7 OF 8
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a freedom of information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an FOI decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by the Office of the Australian
Information Commissioner (
OAIC).
Complaints to the OAIC and Commonwealth Ombudsman
Office of the Australian Information Commissioner
You may complain to the OAIC concerning action taken by an agency in the exercise of
powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the OAIC must be made in writing. The OAIC's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 8 OF 8
Document Outline
