13 August 2020
JS
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear JS
Freedom of Information – Internal Review Decision
I refer to your email dated 9 June 2020 in which you sought an internal review of the
decision issued on 17 April 2020 (
FOI decision). Access to five documents described
in the FOI decision were provided to you on 18 May 2020.
The FOI decision relates to a request from you dated 17 February 2020 to the
Australian Building and Construction Commission (
ABCC) in which you sought access
to documents under the
Freedom of Information Act 1982 (
FOI Act).
The access was sought in the following terms:
‘
Under FOI I seek access to the document (or documents) that contains the detail of
the arrangement(s) between the ABCC and the promoter of the IBenefit program. I also
seek access to the document (or documents) that contains the detail of the significant
savings, convenience and preferential treatment through around 400 providers and
additional dining offers that employees of the ABCC obtain through membership of the
IBenefit program.’
(
FOI request)
On 12 June 2020, the ABCC notified you that your request for internal review was
outside the statutory time limit set out in section 54B of the FOI Act and invited you to
outline the basis on which you believed the ABCC should exercise its discretion to allow
a further period for making an application for internal review. You responded to the
ABCC on 19 June 2020.
To assist with the ABCC’s assessment as to whether it should exercise its discretion to
extend the time to apply for internal review, another search for relevant documents was
conducted. As a result of this search, a further 33 documents that were not located
during the preparation of the FOI decision were identified as falling within the scope of
the FOI request (in addition to the 5 documents originally located).
Accordingly, on 14 July 2020, you were notified that the ABCC had decided to exercise
its discretion to allow a further period for making an application for internal review, and
that it would treat your existing request for internal review as being made on 14 July
2020.
This internal review decision should be read in conjunction with the FOI decision.
Page 1 of 9
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The effect of your request for an internal review is that the ABCC is required to re-
consider the FOI decision generally.
FOI internal review
I am authorised to make a decision under the FOI Act.
Internal review decision
Material considered
In reaching my decision, I have had regard to:
your FOI request;
the ABCC’s FOI decision dated 17 April 2020;
the documents relevant to the FOI request (being the 5 documents which
were the subject of the FOI decision and an additional 33 documents that
have been located: a total of 38 documents listed in Attachment A);
relevant provisions of the FOI Act;
consultations with affected third parties; and
the relevant guidelines issued by the Office of the Australian Information
Commissioner (
OAIC).
I have considered each of the 38 documents set out in Attachment A of the FOI
decision. Based on my review of the material, I have formed the view that all of these
documents relevantly fall within the scope of your FOI request.
Internal review decision I have considered all 38 documents within the scope of the request (which includes the
5 documents that were subject to the original decision).
In relation to the 5 documents the subject of the FOI decision, I have reviewed the
content of the documents and the exemptions applied by the original decision-maker. I
have also reviewed the contentions made by affected third parties in relation to those
documents. For the reasons below, I consider the original decision was correct in its
application. In undertaking my review, I have come to the same decision for Documents
1 to 5 and I affirm the decision made by the original decision maker on 17 April 2020.
In relation to the additional 33 documents, my decision is as follows:
I consider that 2 documents listed in Attachment A should be released in full.
I consider that 31 documents listed in Attachment A contain information which is
exempt and/or conditionally exempt in part under the FOI Act.
Most of the documents are exempt in part under section 47F (personal privacy),
and two documents (Documents 5 and 6) are exempt in part under section
47G(1) (business affairs) of the FOI Act.
I am satisfied that some of the documents contain information that is irrelevant
Page 2 of 9
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
38567037
to the terms of the FOI Request. These documents are Documents 3, 14, 20,
22, 28 and 29. Accordingly, I have decided to give access to all documents in
edited form pursuant to section 22 of the FOI Act with exempt and/or irrelevant
information deleted.
I am also satisfied that (a) it is both possible and reasonably practicable to prepare
edited copies of the requested documents; and (b) it is not apparent that you would
decline access to the edited copies of the requested documents.
Section 22: irrelevant information
Section 22 of the FOI Act allows irrelevant information to be deleted from the edited
copies of requested documents prepared to provide access to the remaining
(disclosable) information to an applicant.
Upon examining the documents, I have identified user statistics and related information
in Documents 3, 14, 20, 22, 28 and 29 which I consider are irrelevant to the scope of
the FOI Request. Accordingly, this information has been deleted from the edited copy
of these documents.
The remainder of the content in these documents (relating to the savings received by
ABCC employees through the iBenefit program) has been considered for release as it
is relevant to the FOI Request.
Exemption – Section 47F: personal privacy
Section 47F of the FOI Act conditionally exempts a document to the extent that its
disclosure would involve the unreasonable disclosure of personal information about
any person. Personal information includes any information or an opinion about an
identified individual, or an individual who is reasonably identifiable, whether the
information or opinion is true or not.
Upon examining the documents, I am satisfied the documents contain personal
information about individuals, including current employees of the ABCC, as well as third
parties. The personal information comprises of names, contact details and signatures.
Personal information will be conditionally exempt if disclosure would be ‘unreasonable’.
In considering whether disclosure would be unreasonable, section 47F(2) of the FOI
Act requires me to take into account:
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 accessible sources;
any other matter I consider relevant.
Page 3 of 9
GPO Box 9927 in your capital city
Hotline: 1800 003 338
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The personal information relating to the third parties and ABCC staff is not well known.
The individuals concerned are not generally known to be associated with the matters
discussed in the documents.
In relation to ABCC employees, the FOI Guidelines set out that details of public
servant’s names should ordinarily be released unless there are ‘special circumstances’
for them to be exempted. I am aware that threats and statements have made against
ABCC employees by building industry participants. In this context I find that special
circumstances do exist in relation to the personal information of the ABCC employees
akin to a FOI review decision.1 As with any FOI request, there are no restrictions to the
use or dissemination of such material once provided to an applicant. The ABCC takes
the safety of its employees very seriously, and I find it would be unreasonable to
disclose their personal information.
In relation to third parties, I consider that disclosure of the personal information of third
parties without restriction would expose those individuals to an inappropriate
interference with their privacy. When forming this view, I have taken into account the
consultation responses received from third parties and any harm that may be caused if
personal information was released.
I consider that the disclosure of the personal information within the documents would
be an unreasonable disclosure of personal information about the relevant individuals.
Accordingly, I find that each of the documents is conditionally exempt under section
47F of the FOI Act. Nonetheless, I must give access to the documents unless, in the
circumstances, access would on balance be contrary to the public interest (considered
below).
Exemption – Section 47G(1)(a): business affairs
Section 47G of the FOI Act permits conditional exemption of documents that, relevantly,
contain information concerning a person in respect of his or her business or
professional affairs, or concerning the business, commercial or financial affairs of an
organisation or undertaking, where disclosure of the information: would, or could
reasonably be expected to, unreasonably affect that person adversely in respect of his
or her lawful business or professional affairs or that organisation or undertaking in
respect of its lawful business, commercial or financial affairs (s 47G(1)(a)).
I find that documents 5 and 6 contain information concerning the business affairs of a
commercial entity, specifically, the annual program fee. The information is not publically
known and is of a sensitive commercial nature. Disclosure of this information would
show potential competitors the iBenefit provider’s pricing over a series of agreements,
who may potentially use this information in their own offers and negotiations in the
future. This may cause detriment to the organisation’s commercial affairs by having an
adverse impact on its future competitiveness.
1 See
Construction, Forestry, Mining and Energy Union and Australian Building and Construction Commission
(Freedom of information) [2017] AICmr 125 at [97]-[107].
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GPO Box 9927 in your capital city
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38567037
I consider that this would, or could reasonably be expected to, unreasonably affect the
organisation in respect of its lawful business/commercial affairs. Accordingly, I have
decided that this information in documents 5 and 6 is conditionally exempt under
section 47G of the FOI Act. Nonetheless, I must give access to the document unless,
in the circumstances, access at this time would on balance be contrary to the public
interest.
Public interest: Sections 47F & 47G
I am now required to consider whether access to the conditionally exempt information
would be contrary to the public interest. I acknowledge that there is a public interest in
documents of the ABCC being made available to the public for the purpose of
encouraging public debate and to promote oversight of its activities. However, I do not
consider that disclosure of the conditionally exempt information would inform debate
on a matter of public importance or promote effective oversight of public expenditure.
In relation to personal information (section 47F), I consider that disclosure of the names
and contact details of the individuals would not shed any light on the workings of the
ABCC or enhance public accountability or transparency. I am satisfied that disclosure
of the information of both ABCC employees and third parties would unreasonably
interfere with the privacy of the individuals concerned. In relation to the personal
information of ABCC employees, I consider that disclosure would prejudice the
management function of the ABCC because agency employees would not expect their
personal information to be made publicly available.
Taking into account the above matters, on balance, I find that disclosure of the
information in the documents is contrary to the public interest. Accordingly, I have
decided that the documents are exempt under section 47F of the FOI Act.
In relation to business/commercial affairs of an organisation conditionally exempt under
section 47G (documents 5 and 6), I do not consider that access to this information
would inform debate on a matter of public importance. In circumstances where the
value of each contract is already publicly available on the AusTender website, the
additional disclosure of billing information would promote the effective oversight of
public expenditure in only a limited way. Additionally, I consider that disclosure of this
information could reasonably be expected to prejudice the competitive commercial
activities of a third party organisation – which is a factor weighing against disclosure.
I find that, in the circumstances, on balance, disclosure of the conditionally exempt
information in the documents would be contrary to the public interest and the
information is accordingly exempt from disclosure under sections 47F and 47G of under
the FOI Act.
No charges
I confirm that there are no charges for this FOI request.
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GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
38567037
Third party review rights and release of documents
Sections 27(7) and 27A(6) of the FOI Act require that access must not be given
to documents until the review rights of individuals and businesses concerned
have been run out.
As I have set out above, I consulted relevant third parties on the release of their
information and they made contentions in support of the application of
exemptions. As such, documents over which third parties have made exemption
contentions cannot be released until 30 days after the date of my decision, unless
a third party exercises its review rights. You will be notified if this occurs.
Once the review rights have run out, we will provide the documents within the
scope of the request.
Review by the OAIC
If you are dissatisfied with this internal review decision, you may apply to the Office of
the Australian Information Commissioner (
OAIC) for a review of my decision.
An application for a review must by the OAIC must be made in writing and within 60
days of the date of this decision. More details are accessible from the OAIC’s website:
www.oaic.gov.au
If you have any questions about this matter, please contact the
ABCC’s FOI Section at either of the following contact addresses:
By post: GPO Box 9927 MELBOURNE VIC 3001 Australia
By email:
xxx@xxxx.xxx.xx
Yours sincerely
Franz Baldo
Australian Building and Construction Commission
Page 6 of 9
GPO Box 9927 in your capital city
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abcc.gov.au ABN 68 003 725 098
38567037
ATTACHMENT A – SCHEDULE OF DOCUMENTS
Reference
Date
Description
Review decision
FOI decision – 5 documents
Partial disclosure (s 22):
Document 1
25/11/2019
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 2
9/10/2019
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 3
8/7/2019
Annual Report
Conditional exemption s 47F
Irrelevant matters s 22
Partial disclosure (s 22):
Document 4
19/3/2015
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Program
Document 5
15/7/2014
Conditional exemption s 47F
Agreement
Conditional exemption s 47G
Additional documents
Partial disclosure (s 22):
Email attaching
Document 6
7/9/2012
program
Conditional exemption s 47F
agreement
Conditional exemption s 47G
Partial disclosure (s 22):
Document 7
15/4/2013
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 8
24/7/2013
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 9
6/11/2013
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 10
13/11/2013
Email
Conditional exemption s 47F
Document 11
11/12/2013
Email
Release in full
Page 7 of 9
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
38567037
Reference
Date
Description
Review decision
Document 12
19/12/2013
Email
Release in full
Email with
Partial disclosure (s 22):
Document 13
23/1/2014
attachments
Conditional exemption s 47F
Partial disclosure (s 22):
Email attaching
Document 14
28/5/2014
Conditional exemption s 47F
annual report
Irrelevant matters s 22
Email with
Partial disclosure (s 22):
Document 15
18/7/2014
attachments
Conditional exemption s 47F
Partial disclosure (s 22):
Document 16
8/10/2014
Email
Conditional exemption s 47F
Email with
Partial disclosure (s 22):
Document 17
3/11/2014
attachment
Conditional exemption s 47F
Partial disclosure (s 22):
Document 18
16/3/2015
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 19
1/6/2015
Email
Conditional exemption s 47F
Email with
Partial disclosure (s 22):
Document 20
17/9/2015
attachment
Irrelevant matters s 22
Email with
Partial disclosure (s 22):
Document 21
13/1/2016
attachment
Conditional exemption s 47F
Partial disclosure (s 22):
Email with
Document 22
27/6/2016
attachment
Conditional exemption s 47F
Irrelevant matters s 22
Partial disclosure (s 22):
Document 23
13/9/2016
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 24
20/9/2016
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 25
17/11/2016
Email
Conditional exemption s 47F
Page 8 of 9
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
38567037
Reference
Date
Description
Review decision
Partial disclosure (s 22):
Document 26
20/02/2017
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 27
21/03/2017
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Email attaching
Document 28
26/7/2017
Annual Report
Conditional exemption s 47F
2017
Irrelevant matters s 22
Partial disclosure (s 22):
Email attaching
Document 29
9/7/2018
Annual Report
Conditional exemption s 47F
2018
Irrelevant matters s 22
Partial disclosure (s 22):
Document 30
24/10/2018
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 31
23/11/2018
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 32
12/12/2018
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 33
19/12/2018
Email
Conditional exemption s 47F
Partial disclosure (s 22):
Document 34
5/4/2019
Email
Conditional exemption s 47F
Email with
Partial disclosure (s 22):
Document 35
9/10/2019
attachment
Conditional exemption s 47F
Email with
Partial disclosure (s 22):
Document 36
13/12/2019
attachment
Conditional exemption s 47F
Partial disclosure (s 22):
Document 37
6/2/2020
Email
Conditional exemption s 47F
Email with
Partial disclosure (s 22):
Document 38
11/2/2020
attachment
Conditional exemption s 47F
Page 9 of 9
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
38567037