FOI 29698 Statement of Reasons Primary Part Access final.pdf

FOI

Decision and Statement of Reasons made under the Freedom of
Information Act 1982
Decision and reason for decision of Lachlan, Position Number 62230915, Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:

Mr Alan Ashmore

Decision date:

29 July 2019

FOI reference number:
FOI 29698

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Ashmore,
Freedom of Information Request: FOI 29698
Decision

1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its records
and has identified one (1) document relevant to your request.

2.
I have made a decision to create and release the document in part.

3.
The document that I have chosen to grant access in part is set out in Schedule 1, together with the
applicable exemption provision. Where I have decided to grant access in part, I have provided access
to an edited copy of the document, modified by deletions in accordance with section 22(2) of the
Freedom of Information Act 1982 (Cth) (FOI Act).

Authority to make decision

4.
I, Lachlan (Position Number 62230915), Information Access Officer, Information Law Section, am an
officer authorised by the Secretary of the Department to make decisions about access to documents
in the possession of the Department, in accordance with section 23(1) of the FOI Act.

1

Summary

5.
On 7 July 2019, you made a request for access to a document in the possession of the Department.
Your request sought access to:

…The information I am seeking is in regard to Compensation for Defective Administration
(CDDA) claims in 2018/19.  This includes the following:

  The number of CDDA claims made

  the number of CDDA claims accepted, and

  the total amount paid…

6.
As no extensions of time have been applied to process your request, a decision on your request is
due by 7 August 2019.

7.
I have decided not to impose a charge in relation to this request, in accordance with Regulation 8 of
the Freedom of Information (Charges) Regulations 2019.

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 grant partial access
to the document is as 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 document that falls 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 15
Request for Access
-  Section 17
Requests involving use of computers etc (e.g. request for the Department to
create a document)
-  Section 22
Access to edited copies with exempt or irrelevant material deleted
-  Section 47F  Public interest conditional exemptions--personal privacy and

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  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 grant access to the document within the scope of your request, subject to the
following exemptions in accordance with the FOI Act:

Public interest conditional exemptions--personal privacy (section 47F)

12.
I have found the document to contain personal information that I consider to be exempt from
disclosure under the FOI Act. This information is the total value paid by the Department to claimants
under the Compensation for Detriment caused by Defective Administration Scheme (CDDA Scheme)
for the relevant period.

13.
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would
involve the unreasonable disclosure of personal information about any person (including a deceased
person).

14.
Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Privacy Act). Personal information is defined in section 6 of the Privacy Act as:

...information or an opinion about an identified individual, or an individual who is reasonably
identifiable:

(a)
whether the information or opinion is true or not;

(b)
whether the information or opinion is recorded in a material form or not…

15.
The elements of ‘personal information’ are:

(a)
it relates only to a natural person (not, for example, a company);

(b)
it says something about the individual;

(c)
it may be in the form of an opinion, it may be true or untrue, and it may form part of a
database;

(d)
the individual’s identity is known or is reasonably ascertainable using the information
in the document.

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16.
If information is personal information, it will be conditionally exempt if disclosure would be
‘unreasonable’.  In considering whether disclosure would be unreasonable, section 47F(2) of the
FOI Act requires me to take into account:

(a)
the extent to which the information is well known;

(b)
whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;

(c)
the availability of the information from publicly accessible sources; and

(d)
any other matter I consider relevant.

17.
The information I find to be exempt is not well known, does not relate to your own affairs and is not
widely accessible through public sources. The amount paid to claimants relates to those individuals
specifically and would identify how much those individuals received under the CDDA Scheme. It is
possible that claimants could ascertain by the way of deduction through various means, how much
other claimants may have received in response to their claims. Given the small number of claims, it is
also possible that the claimants’ identities could reasonably be ascertained.

18.
As noted on the Department’s website, the CDDA Scheme is designed to compensate persons who
have experienced detriment as a result of defective actions or inaction of a department. It is a
scheme that gives the Department the discretion to compensate a claimant in appropriate cases. In
accordance with the principles of the Privacy Act, all aspects of an investigation are treated as
confidential. This is to ensure appropriate protection of claimants’ privacy. As noted above, release
of this information could disclose personal information of people other than yourself, and it is
unreasonable for this information to be disclosed.

19.
Accordingly, I have decided that the part of the document which is 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:

20.
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.

21.
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; and
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(c)
disclosure would promote effective oversight of public expenditure.

22.
I also considered the following factors which do not favour disclosure:

(a)
disclosure could reasonably be expected to prejudice the protection of an individual’s right
to privacy;

(h)
disclosure could reasonably be expected to prejudice an agency’s ability to obtain
confidential information;

(i)
disclosure could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future;

(k)
disclosure could reasonably be expected to harm the interests of an individual or group of
individuals;

23.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of the
FOI Act.

24.
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.

Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)

25.
The Department may refuse access to a document on the ground that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited copy of
the document for release, that is, a copy with relevant deletions made under section 22 of the
FOI Act. The Department is under the same obligation to consider preparing an edited copy of a
document by removing information that would reasonably be regarded as irrelevant to the request.

26.
As explained above, some of the documents subject to your request contain exempt information. On
this basis, I have prepared the documents for release by removing that exempt material in
accordance with section 22 of the FOI Act. The material that has been edited for release is marked
within the documents as well as at Schedule 1.

Access to documents

27.
The document released to you in accordance with the FOI Act is enclosed.

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Information Publication Scheme

28.
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. I am of
the view that details of your request should be made available on the Department’s disclosure log.
As such details of your request will be published by the Department on its disclosure log, which can
be accessed at http://www.dva.gov.au/about-dva/freedom-information/foi-disclosure-log . Please
note that the Department does not publish details of FOI applicants, it is only details of the FOI
request and the documents released in response to the request.

Your rights of review

29.
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

30.
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.

31.
You can make your application for Internal Review in one of the following ways:

Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

OAIC review

32.
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

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33.
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

Contact us

34.
If you wish to discuss this decision, please do not hesitate to contact the Information Law Section
using the following details:

Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

Yours sincerely,

Lachlan (Position Number 62230915)
Information Access Officer
Information Law Section | Legal Services and Audit Branch
Integrity, Assurance and Communications Division

29 July 2019
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FOI
Schedule 1

Schedule of documents

Applicant:

Mr Alan Ashmore

Decision date:

29 July 2019

FOI reference number:
FOI 29698

Doc
Date of
Document description
Pages  Decision
Exemption
No.
document
provision
1

26 July 2019
The number of applications for Compensation for Defective Administration (CDDA) made to the
1
Released in
s 47F
Department of Veteran’s Affairs, the number of CDDA claims accepted and the total value of the
part
amount paid for the period 1 July 2018 to 30 June 2019.
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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.

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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).

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
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(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.

15
Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A)    The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.

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Requests involving use of computers etc
(1)
Where:
(a)
a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
(b)
It appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba)
it does not appear from the request that the applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
the agency could produce a written document containing the information in
discrete form by:
(i)
the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii)
the making of a transcript from a sound recording held in the agency;

the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if the agency had such a document in its possession.
(2)
An agency is not required to comply with subsection (1) if compliance would substantially and
unreasonably divert the resources of the agency from its other operations.

22
Access to edited copies with exempt or irrelevant matter deleted
Scope

(1)
This section applies if:
11

(a)
an agency or Minister decides:

(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:

(i)
the nature and extent of the modification; and

(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy

(2)
The agency or Minister must:

(a)
prepare the edited copy as mentioned in paragraph (1)(b); and

(b)
give the applicant access to the edited copy.
Notice to applicant

(3)
The agency or Minister must give the applicant notice in writing:

(a)
that the edited copy has been prepared; and

(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.

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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.

26
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
12

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;
(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).

Public interest conditional exemption

47F
Public interest conditional exemption—personal privacy
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:

(a)
the extent to which the information is well known;
(b)
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;

(c)
the availability of the information from publicly accessible sources;

(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead

(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and

(b)
is to be nominated by the applicant.
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(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.

(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:

(a)
a medical practitioner;

(b)
a psychiatrist;

(c)
a psychologist;

(d)
a counsellor;

(e)
a social worker.
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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