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Our ref:
FOI 20/02; 19/623
19 August 2019
Ms Evelyn Doyle
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Doyle
Decision in relation to your Freedom of Information (FOI) Request
I refer to your email of 8 August 2019 seeking access under the Freedom of
Information Act 1982 (FOI Act) to documents held by the Australian Commission for
Law Enforcement Integrity (ACLEI).
A decision in relation to your request was due by 9 September 2019.
I am an authorised decision maker under s 23(1) of the FOI Act. This letter sets out
my decision in relation to your request.
Scope of request
You requested access to documents meeting the fol owing description:
documents from the government to ACLEI requesting ACLEI to investigate
the al egations made about Crown Casino; and
documents (if applicable) which expand [ACLEI’s] jurisdiction … to include
government agencies, politicians and other relevant persons or organisations.
I contacted you on 9 August 2019 to clarify the second part of your request and you
responded that day. In essence, you reiterated the plain meaning of that part of the
request.
Summary of decision
Through consulting relevant staff and searching ACLEI record management systems,
I have identified one document within scope of the first part of your request.
ACLEI does not possess any documents within scope of the second part of your
request.
I have decided to grant access to the document.
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I have considered the fol owing material in making this decision:
Your correspondence in relation to this FOI request;
The content of the documents within the scope of the request;
The FOI Act;
The FOI Guidelines issued by the Information Commissioner under s 93A of
the FOI Act (https://www.oaic.gov.au/freedom-of-information/foi-guidelines/);
The Law Enforcement Integrity Commissioner Act 2006;
The views of third parties with an interest in the documents;
Advice from ACLEI officers with responsibility for matters relating to the
documents; and
Relevant ACLEI policies.
Copyright material in the document
Please be aware that the document contains material subject to copyright by a third
party. I have indicated this on the relevant parts of the document.
To the extent that copyright in the document is owned by a third party, you may need
to seek their permission before you can reuse or disseminate that material.
Review rights
If you are dissatisfied with my decision, you make seek a review of it. Your review
rights are outlined in Attachment A.
Relevant provisions
I have outlined relevant provisions of the FOI Act at Attachment B. A ful version is
available online at https://www.legislation.gov.au/Series/C2004A02562.
Access to documents
The document to which I have decided to grant you access is at Attachment C.
Further information
If you have any questions or would like to discuss this decision, please respond by
email to xxx@xxxxx.xxx.xx.
Yours faithful y
ACLEI FOI Officer
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ATTACHMENT A – REVIEW RIGHTS
You are entitled to:
apply to ACLEI for an internal review of the decision
apply to the Information Commissioner for a review of the decision, and
make a complaint to the Information Commissioner about the conduct of an
agency under the FOI Act.
If you intend to seek review, you are encouraged to apply for an internal review first
as this may be quicker than an Information Commissioner review. You would stil be
able to subsequently seek an Information Commissioner review.
Internal review
Under s 54 of the FOI Act, you may apply to ACLEI for an internal review of this
decision.
An application must be made in writing within 30 days of receiving this notice. No
particular form is required to apply although it wil assist your case if you set out your
reasons for seeking a review.
If you intend to seek an internal review of this decision, please email your application
to xxx@xxxxx.xxx.xx.
Information Commissioner review
Under s 54L of the FOI Act, you may apply to the Information Commissioner for a
review of this decision.
An application for Information Commissioner review must be made in writing within
60 days of receiving this notice. If you apply for internal review, you wil have a right
to apply to the Information Commissioner to review the decision made on review
within 60 days of receiving notice of that decision.
If you intend to seek an Information Commissioner review of this decision, please
apply in one of the fol owing ways:
Online: https://forms.business.gov.au/aba/oaic/foi-review-/
Email: xxxxxxxxx@xxxx.xxx.xx
Post: GPO Box 2999 CANBERRA ACT 2601
In person: Level 3, 175 Pitt Street SYDNEY NSW
Further information about Information Commissioner reviews is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
Information Commissioner investigation of complaint
Under s 70 of the FOI Act, you may lodge a complaint with the Information
Commissioner about an action taken by an agency in the performance of functions or
exercise of powers under the FOI Act.
A complaint must be made in writing and identify the agency (and ACLEI, if your
complaint relates to the conduct of a different agency).
The Information Commissioner has discretion within s 73 of the FOI Act to investigate
the complaint.
Further information about making an FOI complaint to the Information Commissioner
is available at https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint/.
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ATTACHMENT B – RELEVANT PROVISIONS OF THE FOI ACT
Making decisions under the FOI Act
9A Functions and powers under this Part
In performing a function, or exercising a power, under this Part, an agency must have
regard to:
(a) the objects of this Act (including al the matters set out in sections 3 and
3A); and
(b) guidelines issued by the Information Commissioner for the purposes of
this paragraph under section 93A.
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, by:
(a) 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 fol owing:
(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.
93A Guidelines
(1) The Information Commissioner may, by instrument in writing, issue
guidelines for the purposes of this Act.
Note:
For variation and revocation of the instrument, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) For the purposes of the performance of a function, or the exercise of a
power, under this Act, regard must be had to any guidelines issued by the
Information Commissioner under this section including, but not limited to,
guidelines issued for the purposes of the fol owing provisions:
(a) paragraph 9A(b) (information publication scheme);
(b) 11B(5) (public interest factors);
(c) subsection 15(5A) (decisions on requests).
11 Right of access
(1) Subject to this Act, every person has a legal y enforceable right to obtain
access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
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(b) 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
(i ) 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 fol owing:
(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
(1) 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
(2) 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)).
(3) The agency or Minister must give the person access to the document if it
is conditional y 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 conditional y 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.
(4) 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 conditional y exempt document; and
(b) an exempt document:
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(i) under Division 2 of Part IV (exemptions); or
(i ) within the meaning of paragraph (b) or (c) of the definition
of exempt document in subsection 4(1).
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(i ) 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
(i ) 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
(i ) 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.
23 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
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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 shal cause the
applicant to be given notice in writing of the decision, and the notice shal :
(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 conditional y
exempt document—include in those reasons the public interest factors
taken into account in making the decision; and
Note:
Access must general y 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;
(i ) his or her rights to make a complaint to the Information
Commissioner in relation to the decision; and
(i i) the procedure for the exercise of the rights referred to in
subparagraphs (i) and (i );
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.
Internal review
53A What is an access refusal decision?
An access refusal decision is any of the fol owing decisions:
(a) a decision refusing to give access to a document in accordance with a
request;
(b) a decision giving access to a document but not giving, in accordance with
the request, access to al documents to which the request relates;
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(c) a decision purporting to give, in accordance with a request, access to al
documents to which the request relates, but not actual y giving that
access;
(d) a decision to defer the provision of access to a document (other than a
document covered by paragraph 21(1)(d) (Parliament should be informed
of contents));
(e) a decision under section 29 relating to imposition of a charge or the
amount of a charge;
(f) a decision to give access to a document to a qualified person under
subsection 47F(5);
(g) a decision refusing to amend a record of personal information in
accordance with an application made under section 48;
(h) a decision refusing to annotate a record of personal information in
accordance with an application made under section 48.
Note:
If a decision is not made on a request under section 15 within the time required
by that section, a decision is taken to have been made to refuse to give access
to a document in accordance with the request (see section 15AC).
54 Internal review—access refusal decision
(1) This section applies if an access refusal decision is made in relation to a
request to an agency for access to a document, other than a decision
made personal y by the principal officer of the agency or the responsible
Minister.
(2) The applicant in relation to the request may apply under this Part for the
review (the internal review) of the access refusal decision.
54B Internal review—application for review
(1) An application for internal review must be in writing and must be made:
(a) within 30 days, or such further period as the agency al ows, after the
day the decision is notified to the applicant for internal review
(the internal review applicant); or
(b) in the case of an access refusal decision of a kind mentioned in
paragraph 53A(b), (c) or (f), within whichever of the fol owing is the
longer period:
(i) 30 days, or such further period as the agency al ows, after the day
the decision is notified to the internal review applicant;
(i ) 15 days after the day the access referred to in that paragraph was
given (or purported to be given).
(2) A decision by an agency to al ow a further period for making an
application may be made whether or not the time for making such an
application has already expired.
(3) The agency’s power to al ow a further period for making an application
may be exercised by an officer of the agency who is:
(a) acting within the scope of authority exercisable by him or her; and
(b) acting in accordance with arrangements approved by the responsible
Minister or principal officer of the agency.
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Information Commissioner review
54L IC reviewable decisions—access refusal decisions
(1) An application may be made to the Information Commissioner for a review
of a decision covered by subsection (2).
(2) This subsection covers the fol owing decisions:
(a) an access refusal decision;
(b) a decision made by an agency on internal review of an access refusal
decision (see section 54C);
(c) a decision refusing to al ow a further period for making an application
for internal review of an access refusal decision (under section 54B).
Note 1:
An application for the review of an access refusal decision made for the
purposes of paragraph (a) may be made regardless of whether the decision
was the subject of internal review.
Note 2:
If no decision is made on internal review within 30 days, a decision to affirm the
original access refusal decision is taken to have been made (see section 54D).
(3) The IC review application may be made by, or on behalf of, the person
who made the request to which the decision relates.
54N IC review applications—application
Content of application
(1) An IC review application must be in writing, and must:
(a) give details of how notices under this Part may be sent to the IC
review applicant (for example, by providing an electronic address to
which notices may be sent by electronic communication); and
(b) include a copy of the notice given under section 26 of the IC
reviewable decision for which an IC review is sought.
Note:
For who may make an IC review application, see sections 54L and 54M.
(2) The IC review application may contain particulars of the basis on which
the IC review applicant disputes the IC reviewable decision.
(3) The Office of the Australian Information Commissioner must provide
appropriate assistance to a person who:
(a) wishes to make an IC review application; and
(b) requires assistance to prepare the IC review application.
Delivery of application
(4) The IC review application must be sent to the Information Commissioner.
The IC review application may be sent in any of the fol owing ways:
(a) delivery to the Information Commissioner at the address of the
Information Commissioner 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 Information Commissioner.
54S IC review applications—time limits
Access refusal decisions
(1) An IC review application in relation to a decision covered by
subsection 54L(2) (access refusal decisions) must be made within 60
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days after the day notice of the IC reviewable decision was given under
section 26.
Access grant decisions
(2) An IC review application in relation to a decision covered by
subsection 54M(2) (access grant decisions) must be made within 30 days
after:
(a) if a decision is made on internal review of the decision—the day notice
of the decision under section 54C was given to the affected third party
for the document in relation to which the decision is made; or
(b) otherwise—the day notice under section 26A, 27 or 27A was given to
the affected third party for the document in relation to which the
decision was made.
Note:
For affected third party, see section 53C.
Information Commissioner investigations
70 Information Commissioner investigations—making complaints
(1) A person (the complainant) may complain to the Information
Commissioner about an action taken by an agency in the performance of
functions, or the exercise of powers, under this Act.
(2) A complaint must:
(a) be in writing; and
(b) identify the agency (also the respondent agency) in respect of which
the complaint is made.
(3) The Office of the Australian Information Commissioner must provide
appropriate assistance to a person who:
(a) wishes to make a complaint; and
(b) requires assistance to formulate the complaint.
72 Information Commissioner investigations—preliminary inquiries
The Information Commissioner may make inquiries of the respondent agency for the
purpose of determining whether or not to investigate a complaint made (or purported
to be made) under section 70.
73 Information Commissioner investigations—discretion not to investigate
The Information Commissioner may decide not to investigate, or not to continue to
investigate, a complaint about an action made under section 70 if the Information
Commissioner is satisfied of any of the fol owing:
(a) that the action is not taken by an agency in the performance of the
agency’s functions or the exercise of the agency’s powers under this Act;
(b) that:
(i) the complainant has or had a right to cause the action to be reviewed
by the respondent agency, the Information Commissioner, a court or a
tribunal; and
(i ) the complainant has not exercised, or did not exercise, the right; and
(i i) it would be, or would have been, reasonable for the complainant to
exercise the right;
(c) that:
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(i) the complainant has or had a right to complain about the action to
another body; and
(i ) the complainant has not exercised, or did not exercise the right; and
(i i) it would be, or would have been, reasonable for the complainant to
exercise the right;
(d) that the complainant has complained to the respondent agency, and the
respondent agency:
(i) has dealt, or is dealing, adequately with the complaint; or
(i ) has not yet had an adequate opportunity to deal with the complaint;
(e) that the complaint is frivolous, vexatious, misconceived, lacking in
substance or not made in good faith;
(f) that the complainant does not have a sufficient interest in the subject
matter of the complaint.
Note:
The Information Commissioner may make a decision under this section to
investigate only part of a complaint (see section 71).
74 Information Commissioner investigations—transfer to Ombudsman
Scope
(1) This section applies if the Information Commissioner is satisfied that a
complaint about an action could be more effectively or appropriately dealt
with:
(a) by the Ombudsman under the Ombudsman Act 1976; or
(b) by the Ombudsman under a particular Norfolk Island enactment.
Example 1: A complaint about the way in which the Information Commissioner has dealt
with an IC review.
Example 2: A complaint relates to an action under this Act, but is part of a complaint that
relates to other matters that can be more appropriately dealt with by the
Ombudsman.
Transfer of complaints to Ombudsman
(2) The Information Commissioner:
(a) must consult the Ombudsman about the complaint with a view to
avoiding inquiries being conducted into that matter by both the
Information Commissioner and the Ombudsman; and
(b) may decide not to investigate the action, or not to continue to
investigate the action.
(3) If the Information Commissioner decides not to investigate, or not to
continue to investigate, the action under paragraph (2)(b), the Information
Commissioner must:
(a) transfer the complaint to the Ombudsman; and
(b) give the Ombudsman any information or documents that relate to the
complaint in the possession, or under the control, of the Information
Commissioner; and
(c) notify the complainant in writing that the complaint has been
transferred.
(4) A notice under paragraph (3)(c) must state the reasons for the Information
Commissioner’s decision.
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(5) If paragraph (1)(a) applies, a complaint transferred under subsection (3) is
taken to be a complaint made to the Ombudsman under the Ombudsman
Act 1976.
(6) If paragraph (1)(b) applies, a complaint transferred under subsection (3) is
taken to be a complaint made to the Ombudsman under the Norfolk Island
enactment concerned.
Note:
The Information Commissioner may make a decision under this section to
investigate only part of a complaint (see section 71).
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