FOI 19 33 Notice of Decision.pdf

NOTICE OF DECISION MADE UNDER SECTION 23
OF THE FREEDOM OF INFORMATION ACT 1982 (CTH) (FOI ACT)
WITH REASONS FOR DECISION PROVIDED UNDER SECTION 26

Applicant:

Phillip Sweeney
Decision-maker:
Ben  Carruthers,  an  authorised  officer  of  the  Australian
Prudential  Regulation  Authority (APRA) for the purposes  of
section 23(1) of the FOI Act.
Relevant
-
correspondence between the Treasurer and the Chair
documents:
of  APRA  (and  any  other  APRA  staff  member)  in
relation  to  this  capability  review  and  the  panel
members (Part One); and

-
any  document  that  sets out the Terms  of  Reference
for  this  capability  review  or  otherwise  might  limit  the
scope of inquiry by the panel members (Part Two).

My decision:
Refuse access,  under  section  47E(d)  of the  FOI  Act, to  the
relevant  document  because  disclosure  would  have  a
substantial adverse effect on the proper and efficient conduct
of the operations of APRA.
Grant  access,  under  section  11A(3)  of  the  FOI  Act  to  one
document as specified in the attached Schedule.
MATERIAL FACTS
1.
I refer to your email dated 18 March 2019, in which you sought access under the FOI
Act to:
“The  Treasurer,  the  Hon  Josh  Frydenberg  MP  has  announced  a  capability  review  of
APRA  by  a  panel  consisting  of  Graeme  Samuel,  Dianne  Smith-Gander  and  Grant
Spencer.

The documents I seek are copies of:

(i) correspondence between the Treasurer and the Chair of APRA (and any other APRA
staff member) in relation to this capability review and the panel members;

(ii)  Any  document  that  sets  out  the  Terms  of  Reference  for  this  capability  review  or
otherwise might limit the scope of inquiry by the panel members”

(your FOI request).

2.
By email dated 18 March 2019, APRA acknowledged receipt of your request.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1

EVIDENCE AND MATERIAL RELIED ON
3.
In making my decision, I have relied on the following evidence and material:
a)
the Applicant’s request received by APRA on 18 March 2019;
b)
acknowledgment email from FOI Officer to the Applicant dated 18 March 2019;
c)
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
d)
relevant sections of the FOI Act; and
e)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).

REASONS FOR DECISION
Part One
4.
APRA has conducted all reasonable searches of its records and identified a document
relevant to your FOI request (relevant part one document).

5.
I have decided to refuse access to the relevant part one document under section 47E(d)
of the FOI Act because disclosure would have a substantial adverse effect on the proper
and efficient conduct of the operations of APRA.
Section 47E - documents affecting certain operations of agencies
6.
Section 47E(d) provides that a document is conditionally exempt if its disclosure under
the FOI Act would, or could reasonably be expected to, have a substantial adverse effect
on the proper and efficient conduct of the operations of an agency.
7.
For  the  exemption  to  apply,  paragraph  6.96  of  the  FOI  Guidelines  requires  that
disclosure  of  the  document  would,  or  could  reasonably  be  expected  to  ‘have  a
substantial adverse effect on the proper  and efficient conduct of the operations of an
agency’.
8.
Paragraph  5.20  of  the  FOI  guidelines  defines  ‘substantial  and  adverse  effect’  as  ‘an
adverse effect which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person’.
9.
The  document  contain  correspondence  between  the  Treasurer  and  APRA  staff  in
relation to matters within APRA’s mandate.
10.  If this information were disclosed, information flow between Government Ministers and
APRA on matters within APRA’s mandate may be curtailed. This could reasonably be
expected  to  have  a  substantial  adverse  effect  on  the  proper  and  efficient  conduct  of
APRA’s operations.
11.  In light of the above factors, I find the document to be conditionally exempt under section
47E(d) of the FOI Act.

Application of the public interest test
12.  Section 11B of the FOI Act applies for the purposes of working out whether access to a
conditionally exempt document would, on balance, be contrary to the public interest.
13.  I have not taken the following factors into account in determining whether access to the
document would, on balance, be contrary to the public interest:
a.
access  to  the  document  could  result  in  embarrassment  to  the  Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b.
access  to  the  document  could  result  in  any  person  misinterpreting  or
misunderstanding the document;
c.
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made; and
d.
access to the document could result in confusion or unnecessary debate.
14.  I  have  reviewed  the  FOI  Guidelines  and  consider  the  following  public  interest  factors
favouring  disclosure  of  the  document  would  apply,  as  disclosure  would  or  could
reasonably be expected to:
a.
promote the objects of the FOI Act; and
b.
inform debate on a matter of public importance.
15.  I have considered the following public interest factors against release would apply, as
disclosure would or could reasonably be expected to:
a.
prejudice  APRA’s  ability  to  correspond  with  Government  Ministers  on  matters
within APRA’s mandate; and
b.
inhibit  the  ability  of  APRA  to  obtain  information  which  informs  its  approach  to
prudential regulation and financial system stability in Australia.
16.  In my view, on balance, the public interest factors against release outweigh the public
interest factors in favour of release of the document.
17.  For the reasons outlined above, I am satisfied that the  relevant part one document is
exempt under section 47E(d) of the FOI Act.
Part Two
18.  APRA has conducted all reasonable searches of its records and identified one document
relevant to your FOI request (relevant part two document).
19.  I  have  decided  to  grant  access  to  the  relevant  part  two  document  specified  in  the
attached Schedule under section 11A(3) of the FOI Act.
ADVICE TO APPLICANT AS TO RIGHTS OF REVIEW
Application for Internal Review of Decision
20.  Pursuant to section 54 of the FOI Act, you have the right to apply for an internal review
of the decision if you disagree with my decision. If you make an application for review,

another officer of APRA will be appointed to conduct a review and make a fresh decision
on the merits of the case.
21.  Pursuant  to  section  54B  of  the  FOI  Act,  you must  apply  in  writing for  a  review  of the
decision within 30 days after the day the decision has been notified to you.
22.  You  do  not  have  to  pay  any  other  fees  or  processing  charges  for  an  internal  review,
except for providing access to further material in the document released as a result of
the review (for example, photocopying, inspection, etc).
23.  No  particular  form  is  required  to  apply  for  review  although  it  is  desirable  (but  not
essential)  to  set  out  in  the  application  the  grounds  on  which  you  consider  that  the
decision should be reviewed.
24.  Application for an internal review of the decision should be addressed to:

FOI Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(02) 9210 3411
25.  If you make an application for internal review and we do not make a decision within 30
days  of receiving  the  application,  the  agency  is deemed to  have  affirmed  the  original
decision. However, under section 54D of the FOI Act, APRA may apply, in writing to the
Information Commissioner for further time to consider the internal review.
Application for review by Information Commissioner
26.  Pursuant to section 54L of the FOI Act, you have the right to apply to the Information
Commissioner for a review of the original decision or a review of a decision made on
review.
27.  Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the original decision or the decision made on internal
review.
28.  An application for review by the Information Commissioner should be sent:

Online: www.oaic.gov.au

Post: GPO Box 5218, Sydney NSW 2001

Email: xxxxxxxxx@xxxx.xxx.xx

In person:
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000

Application for review by Administrative Appeals Tribunal
29.  If the decision on review by the Information Commissioner is not to grant access to all
of  the  documents  within  your  request,  you  would  be  entitled  to  seek  review  of  that
decision by the AAT.
30.  The AAT is an independent review body with the power to make a fresh decision. An
application to the AAT for a review of an FOI decision does not attract a fee. The AAT
cannot  award  costs  either  in  your  favour  or  against  you,  although  it  may  in  some
circumstances  recommend  payment  by  the  Attorney-General  of  some  or  all  of  your
costs. Further information is available from the AAT on 1300 366 700.
Complaints to the Information Commissioner
31.  You may complain to the Commissioner concerning action taken by this agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. The Commissioner will conduct an independent investigation of
your complaint.
32.  You may complain to the Commissioner either orally or in writing, by any of the methods
outlined above, or by telephone, on 1300 363 992.

Ben Carruthers
FOI Officer
Australian Prudential Regulation Authority
Date: 17 April 2019

Schedule of documents to be released

Document
Document title
Date
Link
number
Document 1
APRA Capability Review -
13 March
https://treasury.gov.au/review/apra-
Terms of Reference
2019
capability-review

FREEDOM OF INFORMATION ACT 1982 (CTH)
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 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).
11B  Public interest exemptions—factors
Scope

(1)  This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).

(2)  This section does not limit subsection 11A(5).
Factors favouring access

(3)  Factors favouring access to the document in the public interest include whether access to
the document would do any of the following:

(a)  promote the objects of this Act (including all the matters set out in sections 3 and
3A);

(b)  inform debate on a matter of public importance;

(c)  promote effective oversight of public expenditure;

(d)  allow a person to access his or her own personal information.
Irrelevant factors

(4)  The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:

(a)  access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;

(b)  access to the document could result in any person misinterpreting or
misunderstanding the document;

(c)  the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;

(d)  access to the document could result in confusion or unnecessary debate.
Guidelines

(5)  In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.

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).
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).