FOI 20-14
9 October 2019
Phillip Sweeney
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
NOTICE OF DECISION MADE UNDER SECTION 23 OF THE FREEDOM OF
INFORMATION ACT 1982 (CTH) (FOI ACT) WITH REASONS UNDER SECTION 26
Applicant:
Phillip Sweeney
Decision-maker:
Evelyn Ong, an authorised officer of the Australian Prudential
Regulation Authority (APRA) for the purposes of subsection
23(1) of the FOI Act.
FOI Request:
“I am seeking copies of the documents identified as:
‘I attach my notes and other documentation received from the
parties as a result of my attendance at the hearing’
In the ISC Minutes Paper that was released in a redacted
format.”
For the purposes of this notice of decision:
Document 1 refers to the reference “my notes”; and
All other documents refers to the reference “other
documentation”;
in your FOI Request.
Decision:
Refuse access to Document 1 based on the reasons given in
this notice of decision; and
refuse access to All other documents specified in the
Applicant’s request under section 24A of the FOI Act.
MATERIAL FACTS
1.
On 7 September 2019, you made the FOI request by email under the FOI Act.
2.
On 9 September 2019, APRA acknowledged receipt of the FOI request by email.
EVIDENCE AND MATERIAL
3.
I relied on the following evidence and material in making my decision:
a.
the Applicant’s request received by APRA on 7 September 2019;
b.
acknowledgment email from APRA FOI to the Applicant dated 9 September 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
4.
After conducting all reasonable searches of its records and its predecessor agency’s
records, APRA identified one document as relevant to the part of the FOI request,
namely Document 1 (the relevant document).
5.
I have decided to refuse access to Document 1 because Document 1 would be privileged
from production in legal proceedings on the ground of legal professional privilege under
section 42 of the FOI Act.
6.
I have decided to refuse access to All other documents under section 24A of the FOI
Act.
Document subject to legal professional privilege
7.
Section 42 of the FOI Act provides APRA may refuse a request for access to a document
if the document is of such a nature that it would be privileged from production in legal
proceedings on the ground of legal professional privilege.
8.
Paragraphs 5.127 and 5.129 of the FOI guidelines requires APRA to consider whether:
a.
there is a legal-advisor client relationship;
b.
the communication was for the purpose of giving or receiving legal advice, or use
in connection with actual or anticipated litigation;
c.
the advice given is independent; and
d.
the advice given is confidential.
9.
Document 1 was prepared in circumstances, where the predecessor agency to APRA
retained services of lawyers for the purposes of obtaining professional advice. The
purpose of the advice in the relevant documents relates to the full and frank disclosure
between the lawyer and the predecessor agency.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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10. I am satisfied the communication in Document 1 is a privileged communication as:
a.
there was a legal-advisor client relationship;
b.
the communication was for the purpose of giving or receiving legal advice, or use
in connection with actual or anticipated litigation;
c.
the advice given was from an independent in house-lawyer; and
d.
the advice given was confidential.
11. Disclosing the information in Document 1 would prejudice APRA’s continuing ability to
have confidential communications with its legal advisers. Based on the information before
me, I am satisfied Document 1 would be privileged from production in legal proceedings
on the ground of legal professional privilege. I have decided to refuse access under section
42 of the FOI Act to Document 1.
Documents cannot be found, do not exist or have not been received
12. Based on the information before me, APRA has taken all reasonable steps to locate the
documents relevant to the request and I am satisfied that the documents cannot be
found. Accordingly, I refuse access under section 24A of the FOI Act.
RIGHTS OF REVIEW
Application for Internal Review of Decision
13. Under 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 the review and make a fresh decision on
the merits of the case.
14. Under 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.
15. 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).
16. 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.
17. 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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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18. 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 the Information Commissioner
19. Under 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.
20. 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.
21. An application for review by the Information Commissioner may be lodged in the
following ways:
Online
Complete and lodge the online review form at:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/
Post
Director of FOI Dispute Resolution
GPO Box 5218, Sydney NSW 2001
Email
xxxxx@xxxx.xxx.xx
Facsimile
(02) 9284 9666
Delivered in person
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
Application for review by Administrative Appeals Tribunal
22. 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.
23. 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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Complaints to the Information Commissioner
24. You may complain to the Information 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.
25. You may complain to the Information Commissioner either orally or in writing, by any of
the methods outlined above, or by telephone, on 1300 363 992.
Evelyn Ong
FOI Officer
Australian Prudential Regulation Authority
Date: 9 October 2019
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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