FOI
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jo (Position Number 62210326), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Mr Alan Ashmore
Decision date:
24 October 2019
FOI reference number:
FOI 30921
Sent by:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Ashmore,
Freedom of Information Request: FOI 30921
Decision
1. The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified 21 documents relevant to your request.
2. I have made a decision to release three (3) documents in full and 18 documents in part.
3. The documents that I have chosen to grant access in part to are set out in
Schedule 1,
together with applicable exemption provisions. Where I have decided to grant access in part,
I have provided access to an edited copy of the documents, 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, Jo (Position Number 62210326), Assistant Director, 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.
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Summary
5. On 15 September 2019, you made a request for access to documents in the possession of
the Department. Your request sought access to:
I lodged two separate complaints on 28 June 2018.
The specific complaints were:
COMPLAINT 1: IS AGAINST SIMON LEWIS FOR HIS DECEPTIVE, MISLEADING AND
DISINGENOUS 10 APRIL 2018 RESPONSE TO MY ANALYSIS AS PRESENTED TO ESORT:
COMPLAINT 2: RELATES TO THE FALSE PUBLISHED MINUTES OF ESORT 9 MARCH
2018 MEETING AS NOTED ON DVA’S WEBSITE.
I require all correspondence and actions taken by DVA since the lodgement of those
two complaints which as of today remain unresolved.
6. On 14 October 2019, the Department wrote to you seeking your agreement to a seven day
extension of time under section 15AA of the FOI Act.
7. On 17 October 2019, you notified the Department that you agreed to this extension of time.
8. Accordingly, a decision on your request was due on 22 October 2019.
9. In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request. I would like to apologise for the delay in issuing this decision to you and any
inconvenience it may have caused.
10. As a decision on your request was not made within the timeframe as prescribed in section
15(5)(b) of the FOI Act, Regulation 7(2) of the Freedom of Information (Charges) Regulations
2019 prescribed that no charge is payable.
Material taken into account
11. 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 documents follows.
12. I have taken the following material into account in making my decision:
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the terms of your request
the types of documents that are in the possession of the Department
the content of the documents that fal 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 22 Access to edited copies with exempt or irrelevant material deleted
- Section 47E Public interest conditional exemptions--certain operations of agencies
and
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines).
13. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
14. I have decided to
grant access to three (3) documents in full and 18 documents in part
within the scope of your request, subject to the fol owing exemption in accordance with the
FOI Act:
Public interest conditional exemptions--certain operations of agencies (section 47E)
15. I have found that part of the documents which are listed as exempt in accordance with this
provision in
Schedule 1, contains information that if released, could have a substantial
adverse effect on the management of personnel by the Department (section 47E(c) of the
FOI Act) and the proper and efficient conduct of the operations of the Department
(section 47E(d) of the FOI Act).
16. Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to, do any of the fol owing:
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(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by a
n agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by a
n agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by a
n agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an
agency.
17. I have redacted the surnames and contact details of non-Senior Executive staff members
within the documents to give effect to this conditional exemption, other than the names of
those non-Senior Executive staff members whose contacts details you already have or where
they are already known to you.
18. The Department’s role is to provide support and information to veterans and their families,
Australian Defence Force personnel and other categories of people. The services and
support which the Department provides include pensions and compensation, health care,
rehabilitation and counsel ing services, amongst other things. It is important that the
Department is able to continue to provide these services and to carry out the other
legislative functions and administrative and operational processes required of them. Certain
processes and specific channels of communication have been implemented which enable
clients and other relevant stakeholders to contact the Department in a way that ensures al
Departmental resources are managed as efficiently as possible.
19. Release of the exempt information in the circumstances would adversely affect the
Department as the established lines of communication could then be bypassed. It is
reasonable to expect that this would disrupt and adversely affect the operations of the
Department.
20. Further, the release of this information could have a substantial adverse effect on the
management or assessment of personnel as well as an adverse effect on the proper and
efficient conduct of the operations of the agency including the inability of the Department to
retain staff or effectively manage the wel being and safety of our staff. Relevantly, some
staff have been targeted, insulted or harassed based on disclosure of their details. This
presents chal enges in managing the welfare of staff and can affect the ongoing
management and retention of personnel by the Department. Consequently, in these
circumstances, it would not be in the public interest to release this information.
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21. Accordingly, I have decided that parts of the documents listed as exempt in accordance with
this provision in
Schedule 1, meet the criteria for this 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) of the FOI Act.
22. Where the document contains information exempt under section 47E of the FOI Act, an
edited copy has been prepared (pursuant to section 22 of the FOI Act) with these details
redacted.
23. Accordingly, I have decided that the documents which are listed as exempt in accordance
with this provision in Schedule 1, meet the criteria for conditional exemption. Where a
document is assessed as conditional y exempt, access must be given subject to the public
interest test in accordance with section 11A(5).
Application of the public interest test:
24. 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.
25. 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, including enhance the scrutiny of
government decision making.
26. I also considered the fol owing factors which do not favour disclosure:
a) disclosure would, or could reasonably be expected to, have a substantial adverse effect
on the management or assessment of personnel by the Commonwealth, by Norfolk
Island or by an
agency and
b) disclosure would, or could reasonably be expected to, have a substantial adverse effect
on the proper and efficient conduct of the operations of a
n agency.
27. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
5
28. 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)
29. 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.
30. 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 wel as at
Schedule 1.
31. Some of the documents also contain information about a complaint made by another
individual. On this basis, I have removed this irrelevant information 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
32. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
33. 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.
34. In accordance with section 11C(1)(a) of the FOI Act, the document issued to you wil not be
made available in the disclosure log as it relates to your personal information and it would
be unreasonable to publish this information.
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Your rights of review
35. If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (
OAIC). In
accordance with section 54E(b) of the FOI Act, Internal Review is not available as the
Department did not finalise your FOI request within the prescribed statutory timeframe.
OAIC review
36. 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 fol owing 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
37. 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
38. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the above details.
Yours sincerely,
Jo (Position Number 62210326)
Assistant Director
Information Law Section
Legal Services and Audit Branch
24 October 2019
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FOI
Schedule 1
Schedule of documents
Applicant:
Mr Alan Ashmore
Decision date:
24 October 2019
FOI reference number:
FOI 30921
Document Date of document Document description
Pages
Decision
Exemption
No.
1
3 July 2018
Internal Departmental email
10
Access in part
s 47E(c) and (d)
2
3 July 2018
Internal Departmental email
4
Access in part
s 47E(c) and (d)
3
2 August 2018
Internal Departmental email
2
Access in part
s 47E(c) and (d)
4
8 August 2018
Internal Departmental email
1
Access in part
s 22
s 47E(c) and (d)
5
9 August 2018
Internal Departmental email
1
Access in part
s 22
s 47E(c) and (d)
8
Document Date of document Document description
Pages
Decision
Exemption
No.
6
22 August 2018
Internal Departmental email
4
Access in part
s 47E(c) and (d)
7
23 August 2018
Internal Departmental email
4
Access in part
s 47E(c) and (d)
8
22 August 2018
Internal Departmental email
4
Access in part
s 47E(c) and (d)
9
4 July 2018
Internal Departmental email
1
Access in part
s 47E(c) and (d)
10
3 July 2018
Internal Departmental email
2
Access in part
s 47E(c) and (d)
11
N/A
Attachment to Document 10 –
7
Release in full
N/A
Complaints
12
2 August 2018
Internal Departmental email
3
Access in part
s 47E(c) and (d)
13
3 July 2018
Attachment to Document 12 -
2
Access in part
s 47E(c) and (d)
Internal Departmental email
14
N/A
Attachment to Document 13 –
7
Release in full
N/A
Complaints
15
2 August 2018
Internal Departmental email
3
Access in part
s 47E(c) and (d)
16
3 July 2018
Attachment to Document 15 –
2
Access in part
s 47E(c) and (d)
Internal Departmental email
17
N/A
Attachment to Document 16 –
7
Release in full
N/A
Complaints
18
9 August 2018
Internal Departmental email
4
Access in part
s 22
9
Document Date of document Document description
Pages
Decision
Exemption
No.
s 47E(c) and (d)
19
3 July 2018
Internal Departmental email
3
Access in part
s 47E(c) and (d)
20
3 July 2018
Internal Departmental email
1
Access in part
s 47E(c) and (d)
21
20 August 2018
Internal Departmental email
2
Access in part
s 47E(c) and (d)
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FOI
Schedule 2
Schedule of relevant provisions in the FOI Act
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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 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.
11 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);
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(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 conditional y exempt.
Note 2:
A conditional y 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 conditional y 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
conditional y 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 fol owing:
(a) promote the objects of this Act (including al 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;
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(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.
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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 fol owing 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.
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
(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
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(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.
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 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
Note: Access must general y be given to a conditional y 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
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the manner in which an application for internal review (Part VI) and
IC review (Part VI ) 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).
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 fol owing:
(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, by Norfolk Island 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 general y be given to a conditional y exempt document unless it would
be contrary to the public interest (see section 11A).
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Document Outline