20 May 2019
Our reference: LEX 43923
Ms Evelyn Doyle
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Doyle
Freedom of Information (FOI) – Internal review decision
I refer to your email correspondence received by the Department of Human Services (the
department) on 19 April 2019.
You have sought an internal review of an FOI decision dated 15 April 2019 (LEX 43040).
The department received your original FOI request on 10 March 2019.
You had requested access under the
Freedom of Information Act 1982 (the
FOI Act) to the
following:
‘I note in a Sydney Morning Herald newspaper article dated 30 October 2018, there is
mention of a $51m trial to outsource Centrelink call centre services to Serco.
Since then, the department has proceeded with a large call centre outsourcing project
to various companies based on the report outlining the findings of the trial, and from
which the decision to outsource was made.
I would like to request a copy of the report under administrative access, as I assume
the department has it ready to hand or could provide a link. I searched the
Department of Human Services website but have not managed to locate the report.’
The primary decision-maker decided to refuse access to one document within the scope of
your request.
Based on your request for an internal review, my review has focused on whether:
the requested document is exempt under the FOI Act; and
whether public interest considerations apply, such that the factors favouring access to
the document outweigh the public interest against disclosure.
Decision
I have made a fresh decision on your request and decided to
refuse access to the
document.
I have decided to refuse access to the requested document, in its entirety, on the basis that it
is an exempt document under section 34(1)(a) of the FOI Act. The document has been
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submitted to Cabinet for its consideration and it was brought into existence for the dominant
purpose of submission for consideration by Cabinet.
Because section 34(1)(a) of the FOI Act is not a conditional exemption, it is not a
requirement under the FOI Act that the document be subject to the ‘public interest test’
(section 11A, FOI Act).
Accordingly, as the document falls within the exemption set out in section 34(1)(a) of the FOI
Act, it is an exempt document.
Please see
Attachment A for detailed reasons for my decision.
Review
You can ask for an external review by the Office of the Australian Information Commissioner.
You do not have to pay for reviews of decisions. See
Attachment B for more information.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx Yours sincerely
Bianca
Authorised FOI Decision Maker
Freedom of Information Team
Legal Services Division
Department of Human Services
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Department of Human Services
Attachment A
REASONS FOR DECISION
I am authorised under subsection 23(1) of the FOI Act to make internal review decisions
under section 54C of the FOI Act.
Internal review request
On 19 April 2019 you requested an internal review and stated, amongst other things:
‘…While I understand the exemptions for Cabinet documents and the department's
claims that the origin of the report was to examine new policy (and advice and
evidence provided in the report), it is within the department's power to declassify the
document [the report] and make it available for release.
Given the report's findings outline the reasons and evidence to support the
government's decision to outsource the Centrelink call centre function to the private
sector, the public has a right to know how the government makes decisions on their
behalf. It would not be in the interests of the public for the department to use this as a
reason to avoid public scrutiny.
Now that the decision has been made and the process of outsourcing has begun I
request the document be made available to the public also noting it is no longer a
deliberative process. For these reasons it is against the spirit of the FOI Act (and
disclosure) to withhold information which supports the government's decision to make
a major change to government processes.’
What I took into account
In reaching my decision I took into account:
your original request dated 15 April 2019;
your review request dated 19 April 2019;
the document within the scope of your request;
consultations with departmental officers about the document;
consultations with the Department of the Prime Minister and Cabinet;
consultation responses from the above parties, received in relation to the original FOI
decision (LEX 43040);
research, as set out in these reasons;
the Cabinet Handbook issued by the Department of the Prime Minister and Cabinet,
12th Edition;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
Guidelines); and
the FOI Act.
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Department of Human Services
Reasons for my decision
Section 34(1)(a) – Cabinet documents
Exemption
Section 34(1)(a) of the FOI Act states:
‘(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i)
it has been submitted to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted;
(ii)
it was brought into existence for the dominant purpose of submission
for consideration by the Cabinet’
In regard to this exemption, the Guidelines relevantly state:
The Cabinet exemption in section 34 of the FOI Act is designed to protect the
confidentiality of the Cabinet process and to ensure that the principle of collective
ministerial responsibility (fundamental to the Cabinet system) is not undermined
(paragraph 5.55).
This exemption is not subject to the public interest test. The public interest is implicit
in the purpose of the exemption itself (paragraph 5.55).
To be exempt under section 34(1)(a), a document must have been created for the
dominant purpose of being submitted for Cabinet’s consideration and must have
actually been submitted or have been proposed by a sponsoring minister to be
submitted (paragraph 5.64).
Whether a document has been prepared for the dominant purpose of submission to
Cabinet is a question of fact (paragraph 5.67).
I consider the document is an exempt document under section 34(1)(a) of the FOI Act for the
following reasons:
The applicability of this exemption is a question of fact.
Based on a further consultation with the Department of Prime Minster and Cabinet
and the department’s Capability Improvement Branch, I have been advised that the
document is exempt in full as it was brought into existence for the dominant purpose
of consideration by Cabinet and was considered by Cabinet.
The Minister for Human Services and Digital Transformation, the Hon Michael
Keenan MP stated in a letter tabled in the Senate, dated 4 December 2018,
‘The
KPMG report is a Cabinet document, created for the purpose of informing decisions
of the Cabinet’. This letter is availabl
e online via this link.
Exceptions
Section 34(6) of the FOI Act states:
‘Information in a document to which subsection (1), (2) or (3) applies is not exempt
matter because of this section if the information consists of purely factual material,
unless:
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Department of Human Services
(a)
the disclosure of the information would reveal a Cabinet deliberation or
decision; and
(b)
the existence of the deliberation or decision has not been officially
disclosed.’
Section 34(1)(a) of the FOI Act operates to exempt a document from release, if, based on
fact, the document falls within that exemption.
In counter, the operation of section 34(6) of the FOI Act is to allow for the release of ‘purely
factual material’ contained in an exempt document, in circumstances where the requirements
of section 34(6) are satisfied.
‘Purely factual material’ is not defined in the FOI Act.
It has been held that purely factual material, ‘comprises merely of simply factual material. It
does not contain material that can be described as opinion, advice or recommendation or
even conjecture’ (
Re Waterford and Treasurer of the Commonwealth (No 1) [1984] AATA
518; Secretary, Department of Prime Minister and Cabinet and Secretary, Department of
Infrastructure and Regional Development and Sanderson [2015] AATA 361).
The Guidelines at paragraph 5.77 state, ‘Purely factual material includes material such as
statistical data, surveys and factual studies. A conclusion involving opinion or judgement is
not purely factual material. For example, a projection or prediction of a future event would not
usually be considered purely factual.’
I consider the exception in section 34(6) of the FOI Act does not apply to the document for
the following reasons:
The document is not comprised of just purely factual material. The document contains
evaluation and assessment information, as well as material that can be described as
opinion or recommendations.
To the extent that the document contains some purely factual material, this material is
intertwined with other material.
It has been held that where purely factual material is mixed with opinion, advice or
recommendation that is exempt under the FOI Act, consideration must be given to
whether that exempt matter can be deleted from the document in accordance with
section 22 of the FOI Act (
Secretary, Department of Prime Minister and Cabinet and
Secretary, Department of Infrastructure and Regional Development and Sanderson
[2015] AATA 361.)
I consider it is not possible for the purely factual material to be separated from the
other material in the document. The purely factual material is so intertwined with other
material in the document, redactions are either not possible, or would result in
redundant material remaining.
It is not therefore necessary for me to consider whether there has been an official disclosure
of the existence of a Cabinet deliberation or decision which excludes the document from
being exempt under section 34(6).
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Department of Human Services
However, for completeness, my research indicates that there has been no such official
disclosure. While the report has been a topic of some media interest, I am not aware of any
media releases that make a definitive announcement about a decision or deliberation of
Cabinet. Therefore, section 34(6) of the FOI Act does not have the effect of removing the
exemption under section 34(1)(a) of the FOI Act.
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Department of Human Services
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of
this decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this
decision by the Information Commissioner.
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can
lodge your application in one of the following ways:
Online:
www.oaic.gov.au Post: GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
An application form is available on the website at www.oaic.gov.au. Your application should
include a copy of the notice of the decision that you are objecting to (if one was provided),
and your contact details. You should also set out why you are objecting to the decision.
Complaints to the Commonwealth Ombudsman
You may complain to the 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 Ombudsman may be made in person, by telephone or in
writing. The 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.
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