Our reference: FOIREQ19/00218
Julie
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information request – decision on access
Dear Julie,
I refer to your request for access to documents, made under the
Freedom of Information Act
1982 (Cth) (the FOI Act), and received by the Office of the Australian Information
Commissioner (OAIC) on 6 October 2019.
On 6 October 2019 you requested access to:
Firstly, copy of any record/document use by officers of the Office of the Australian
Information Commissioner (OAIC) to guide them in any exercise (intention or
otherwise) of s 54W of the Freedom of Information Act (only that part of the
document or record that pertains to s 54W if it also extends to other matters).
Secondly, a s 17 produced document is sought, being a statistical report, covering
the last year (365 days, or as near as to), totalling the number of IC Review not
withdrawn after a s 55G substitution occurred, and the number of those that
subsequently received a notice of intention (s 54W) letter from the OAIC.
On 21 October 2019, the OAIC advised you that in relation to part two of your request our
case management system is unable to render a report detailing the information you are
seeking. However, the OAIC advised you that the system could render a report which
identifies the number of IC reviews finalised under s 54W of the FOI Act within the past year
and the line area can then manually review the files to determine whether they were
finalised subsequent to a 55G decision being issued.
The OAIC advised you that a document could be produced as follows:
Number of IC reviews finalised under s 54W in past 12 months:
XX
Number of IC reviews finalised under s 54W in past 12 months that were subject to a
s 55G decision prior to finalisation:
XX
On 24 October 2019, the OAIC generated a report. The report returned some 370 lines of
data; however, after removing any duplicated case numbers the number was reduced to 219.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have identified 20 documents within the scope of your request. I have decided to give you
access to 14 documents in full, 2 documents in part and exempt 4 documents in full, with
exempt material redacted under s 42 of the FOI Act.
A schedule describing the documents and the access decision I have made is at Appendix A
to this decision.
I have also redacted material under s 22 that it not relevant to your FOI request. This
information is about internal OAIC guidance that does not relate to guidance about s 54W
decisions.
In addition, further information and guidance on when the Commissioner may decide to use
her discretion under s 54W is
found Part 10 of the OAIC’s FOI Guidelines and is available on
our website.
Reasons for decision
Material taken into account
In making my decision I have had regard to the following:
• your freedom of information request of 6 October 2019
• the documents you have requested
• the FOI Act, in particular s 42
• the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act to which regard must be had in performing a function or exercising a power under the
FOI Act (the FOI Guidelines).
Legal Professional Privilege (s 42)
Documents 16 to 21 contain information that would be privileged from production in legal
proceedings on the ground of legal professional privilege (LPP).
Section 42 of the FOI Act provides:
(1) A
document is a
n exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal professional
privilege.
2
The FOI Guidelines refer to the AAT case of
Ransley and Commissioner of Taxation (Freedom
of information) [2015] AATA 728. In that case, Tamberlin DP discussed that ‘communications
and information between an agency and its qualified legal advisers for the purpose of giving
or receiving advice will be privileged whether the legal advisers are salaried officers [or not],
provided that they are consulted in a professional capacity in relation to a professional
matter and the communications arise from the relationship of lawyer client.’
The documents contain information that involves communication between the OAIC’s
external legal services provider and the FOI dispute resolution team and our internal legal
services team. The external legal services provider provided legal advice to the dispute
resolution and legal services teams in a professional capacity.
I am satisfied that the information I have exempted from the documents was created for the
main purpose of providing legal advice. Accordingly, I am satisfied that this material is
subject to legal professional privilege for the purposes of s 42 and have redacted the
information.
Please see the following page for information about your review rights and information
about the OAIC’s disclosure log.
Yours sincerely,
Delaney Smith
Legal Services Officer
12 November 2019
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review will be conducted, to the extent possible, by an officer of the OAIC who
was not involved in or consulted in the making of my decision. If you wish to apply for an
internal review, you must do so in writing within 30 days. There is no application fee for
internal review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
reviewed.
3
Further Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If
you wish to apply for IC review, you must do so in writing within 60 days. Your application
must provide an address (which can be an email address or fax number) that we can send
notices to and include a copy of this letter. A request for IC review can be made in relation to
my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable that
my decision be considered by the AAT, the Information Commissioner may decide not to
undertake an IC review.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email
to xxx@xxxx.xxx.xx, or by fax on
02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
conta
ct xxxxx@xxxx.xxx.xx. More information is available on
the Access our
information page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or business
information that it would be unreasonable to publish.
4
The documents I have decided to release to you do not contain business or personal
information that would be unreasonable to publish. As a result, the documents will be
published on
our disclosure log shortly after being released to you.
5
