FOI
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Dylan (Position Number 6221 2985), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Janet Baker
Decision date:
26 November 2019
FOI reference number:
FOI 31753
Sent by:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Baker
Freedom of Information Request: FOI 31753
Decision
1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified two (2) documents relevant to your request.
2.
I have made a decision to release those two (2) documents in part.
3.
The documents that I have chosen to grant partial access 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, Dylan (Position Number 62212985), Information Access Officer, 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 3 November 2019, you made a request for access to documents in the possession of the
Department. Your request sought access to:
…I am requesting a copy of the agreement between APOD and the department to facilitate
the veteran covenant discount system. If data is shared at al between the two parties please
provide a copy of the privacy statement of acknowledgment that you wil provide this
information to a third party…
6.
As no extensions of time have been applied to process your request, a decision on your
request is due by 3 December 2019.
7.
I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the Freedom of Information (Charges) Regulations 2019.
Material taken into account
8.
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 fol ows.
9.
I have taken the fol owing material into account in making my decision:
the terms of your request dated 3 November 2019
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
Correspondence and discussion with the relevant Business Area of the Department
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legal y
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the fol owing provisions of the FOI Act relevant to
my decision:
- Section 45 Documents communicated in confidence; and
- Section 47 Documents disclosing trade secrets or commercial y valuable
information,
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the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
Consideration of the material publicly available on the Department of Finance’s
website.
10. A ful extract of al FOI Act provisions used to make my decision are provided in Schedule 2.
Reasons for decision
11. I have decided to grant access to documents within the scope of your request, subject to the
fol owing exemptions in accordance with the FOI Act:
Documents containing material obtained in confidence (section 45)
12. Section 45 of the FOI Act provides that a document is an exempt document if its disclosure
under the Act would found an action by a person for a breach of confidence. The FOI
Guidelines provide that, To found an action for breach of confidence (which means
section 45 would apply), the fol owing five criteria must be satisfied in relation to the
information:
(a)
it must be specifical y identified;
(b)
it must have the necessary quality of confidentiality;
(c)
it must have been communicated and received on the basis of a mutual
understanding of confidence;
(d)
it must have been disclosed or threatened to be disclosed, without authority; and
(e)
unauthorised disclosure of the information has or wil cause detriment.
13. Other than the standard Commonwealth contracting information, the contract between
APOD and the Department was exchanged on the basis of confidentiality and there has been
no authority provided to release this information.
Documents disclosing trade secrets or commercially valuable information (section 47)
14. Section 47 of the FOI Act provides that a document is an exempt document if its disclosure
would disclose:
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(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
15. The information in the contract between APOD and the Department contains information of
commercial value, particularly the requirements of the agreement which set out how the
services wil be (or are being) implemented and pricing information. This is of commercial
value to both APOD and the Department and reflects the results of the limited tender.
16. The contract has only recently commenced and the information in it is current.
17. The disclosure of the commercial y valuable information would diminish its value as it would
enable future tenders to ascertain the cost paid for the work being undertaken by APOD,
conferring a competitive advantage on future tenderers.
Access to documents
18. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
19. 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. I am of the view that details of your request should be made available on the
Department’s disclosure log. As such details of your request wil be published by the
Department on its disclosure log, which can be accessed at http://www.dva.gov.au/about-
dva/freedom-information/foi-disclosure-log .
20. Please note that the Department does not publish details of FOI applicants, it is only details
of the FOI request and the documents released in response to the request.
Your rights of review
21. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a more rapid
resolution of your concerns.
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Internal review
22. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review wil be carried out by another officer within 30
days.
23. You can make your application for Internal Review in one of the fol owing ways:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
OAIC review
24. 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
25. 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
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Contact us
26. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Dylan (Position Number 62212985)
Information Access Officer
Information Law Section | Legal Services and Audit Branch
26 November 2019
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FOI
Schedule 1
Schedule of documents
Applicant:
Janet Baker
Decision date:
26 November 2019
FOI reference number:
FOI 31753
Doc
Date of
Document description
Pages Decision Exemption
No. document
provision
1 12 July 2019 Commonwealth Contract – Services between
20 Part
s45; s47(b)
the Department and APOD
Access
2
N.D.
Consent for the Department to share certain
1 Ful
N/A
information with APOD
Access
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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.
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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
(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
(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);
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(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
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 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
(i )
within the meaning of paragraph (b) or (c) of the definition of
exempt document in subsection 4(1).
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Documents containing material obtained in confidence
(1)
A document is an exempt document if its disclosure under this Act would found an
action, by a person (other than an agency, the Commonwealth or Norfolk Island),
for breach of confidence.
(2)
Subsection (1) does not apply to a document to which subsection 47C(1)
(deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)),
that is prepared by a Minister, a member of the staff of a Minister, or an officer or
employee of an agency, in the course of his or her duties, or by a prescribed
authority or Norfolk Island authority in the performance of its functions, for
purposes relating to the affairs of an agency or a Department of State unless the
disclosure of the document would constitute a breach of confidence owed to a
person or body other than:
(a)
a person in the capacity of Minister, member of the staff of a Minister or
officer of an agency; or
(b)
an agency, the Commonwealth or Norfolk Island.
47
Documents disclosing trade secrets or commercial y valuable information
(1)
A document is an exempt document if its disclosure under this Act would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
were disclosed.
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(2)
Subsection (1) does not have effect in relation to a request by a person for access to
a document:
(a)
by reason only of the inclusion in the document of information concerning
that person in respect of his or her business or professional affairs; or
(b)
by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an undertaking where the
person making the request is the proprietor of the undertaking or a person
acting on behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an organisation where the
person making the request is the organisation or a person acting on behalf
of the organisation.
(3)
A reference in this section to an undertaking includes a reference to an undertaking
that is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a
State or by a local government authority.
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