29 October 2020
Ms E Davey
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/08/00380
File Number:
OBJ2020/26054
Dear Ms Davey
Freedom of Information (FOI) request - Access Decision
On 5 August 2020, the Department of Home Affairs (the Department) received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
All site assessments pertaining to the possibility of transferring children of any age
(including infants and children below seven) to the Regional Processing Centre on
Manus Island, Papua New Guinea, in 2012. To clarify, I am referring to preparations
for the re-establishment of the RPC in that year.
Please note that I am not requesting information on individual cases of actual or
potential transferees.
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:
the terms of your request
the FOI Act
Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 Telephone: 02 6264 1111 Fax: 02 6225 6970 www.homeaffairs.gov.au
4
Documents in scope of request
The Department has identified two documents as falling within the scope of your request.
These documents were in the possession of the Department on 5 August 2020 when your
request was received.
Attachment A is a schedule which describes the relevant document and sets out my
decision in relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall
within the scope of your request is as follows:
Release two documents in part with deletions
6
Reasons for Decision
Detailed reasons for my decision are set out below.
My findings of fact and reasons for deciding that the exemption provision applies to that
information are set out below.
6.1 Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(iii) of the FOI Act permits exemption of a document if disclosure of the
document would, or could reasonably be expected to cause damage to the international
relations of the Commonwealth.
The phrase 'international relations' has been interpreted as meaning the ability of the
Australian Government to maintain good working relations with other governments and
international organisations and to protect the flow of confidential information between them.
The expectation of damage to international relations must be reasonable in all the
circumstances, having regard to the nature of the information; the circumstances in which
it was communicated; and the nature and extent of the relationship. There must be real
and substantial grounds for the conclusion that are supported by evidence.
I consider that the release of the information marked 's33(a)(iii)' in the documents would,
or could reasonably be expected to cause damage to the Australian Government's
international relations.
I am of the view that the disclosure of parts of document 1 and 2 would adversely impact
on the ability of the Department to maintain good working relations with a foreign
government and reasonably be expected to inhibit future negotiations between the
Australian Government and a foreign government.
As such I have decided that the information redacted and marked '
s33(a)(iii)" is exempt
from disclosure under section 33(a)(iii) of the FOI Act.
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6.2 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the
functions of the Department.
‘
Deliberative matter’ includes opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes
of an agency.
‘
Deliberative processes’ generally involves “
the process of weighing up or evaluating
competing arguments or considerations”1 and the ‘
thinking processes –the process of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.’2
The document contains advice, opinions and recommendations prepared or recorded in
the course of, or for the purposes of, the deliberative processes involved in the functions
of Department, being the establishment of Manus Island Regional Processing Centre. I am
satisfied that this deliberative matter relates to a process that was undertaken within
government to consider whether and how to make or implement a decision, revise or
prepare a policy, administer or review a program, or some similar activity. 3
Section 47C(2) provides that “deliberative matter” does not include purely factual material.
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that the information is conditionally exempt under section 47C of the FOI
Act. Access to a conditionally exempt document must generally be given unless it would
be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in
that regard at paragraph 6.4 below.
6.3 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of
any person. ‘Personal information’ means information or an opinion about an identified
individual, or an individual who is reasonably identifiable, whether the information or opinion
is true or not, and whether the information or opinion is recorded in a material form or not
(see s 4 of the FOI Act and s 6 of the
Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role.
The FOI Act states that, when deciding whether the disclosure of the personal information
would be ‘unreasonable’, I must have regard to four factors set out in s.47F(2) of the
FOI Act. I have therefore considered each of these factors below:
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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the extent to which the information is well known;
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;
the availability of the information from publicly available resources;
any other matters that I consider relevant.
The information relating to the third parties is not well known and would only be known to
a limited group of people with a business need to know. As this information is only known
to a limited group of people, the individuals concerned are not generally known to be
associated with the matters discussed in the document. This information is not available
from publicly accessible sources.
I do not consider that the information relating specifically to the third parties would be
relevant to the broader scope of your request, as you are seeking access to site
assessments pertaining to the establishment of the Manus Island Regional Processing
Centre rather than information which wholly relates to other individuals.
I am satisfied that the disclosure of the information within the documents would involve an
unreasonable disclosure of personal information about a number of individuals.
I have decided that the information referred to above is conditionally exempt under section
47F of the FOI Act. Access to a conditionally exempt document must generally be given
unless it would be contrary to the public interest to do so. I have turned my mind to whether
disclosure of the information would be contrary to the public interest, and have included my
reasoning in that regard at paragraph 6.4 below.
6.4 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required
to consider whether access to the conditionally exempt information would be contrary to
the public interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test
in section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document
would be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being 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.
Having regard to the above I am satisfied that:
access to the documents would promote the objects of the FOI Act.
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the subject matter of the document does have the character of public
importance and that there may be broad public interest in the document.
no insights into public expenditure will be provided through examination of the
documents.
you do not require access to the documents in order to access your own
personal information.
I have also considered the following factors that weigh against the release of the
conditionally exempt information in the documents:
disclosure of the personal information which is conditionally exempt under
section 47F of the FOI Act could reasonably be expected to prejudice the
protection of those individuals' right to privacy.
The Department is committed to complying with its obligations under the
Privacy Act 1988, which sets out standards and obligations that regulate how
the Department must handle and manage personal information. It is firmly in
the public interest that the Department uphold the rights of individuals to their
own privacy and meets its obligations under the Privacy Act. I consider that
non-compliance with the Department’s statutory obligations concerning the
protection of personal information would be contrary to the public interest and
that this factor weighs strongly against disclosure.
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to
my decision, which are:
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.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded
that the disclosure of the conditionally exempt information in the documents would be
contrary to the public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562.
If you are unable to access the legislation through this website, please contact our office
for a copy.
8
Your Review Rights
Internal Review
If you disagree with this decision, you have the right to apply for an internal review by the
Department of this decision. Any request for internal review must be provided to the
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Department within 30 days of you being notified of the decision. Where possible please
attach reasons why you believe a review of the decision is necessary. The internal review
will be carried out by an officer other than the original decision maker and the Department
must make a review decision within 30 days.
Applications for review should be sent to:
By email to: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
OR
By mail to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN ACT 2617
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for
a review of this decision. You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a request for a review to the OAIC,
please see Fact Sheet 12 "Freedom of information – Your review rights", available online
at https://www.oaic.gov.au/freedom-of-information/foi-review-process.
9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which
it is considered that the action taken in relation to the request should be investigated and
identify the Department of Home Affairs as the relevant agency.
10
Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section
at xxx@xxxxxxxxxxx.xxx.xx.
Long Dang
Authorised Decision Maker
Department of Home Affairs
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