Internal Decision Letter.pdf

5 Tennant Street / PO Box 1744 FYSHWICK ACT 2609

T 13 000 ASADA (13 000 27232) F +61 (0) 2 6222 4201 E xxxxx@xxxxx.xxx.xx
asada.gov.au ABN 91 592 527 503

25 August 2014

Mr Martin Hardie
School of Law
Faculty of Business and Law
Geelong Waterfront Campus
Geelong  VIC  3220

By email only:  xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Hardie
Re: Internal review

The purpose of this letter is to advise you of my decision in relation to your request for internal review of
ASADA’s decision on 16 June 2014 to refuse access to the documents you requested under the Freedom
of Information Act 1982 (Cth) (FOI Act).
Summary
On 16 May 2014, you provided a valid FOI request to the Australian Sports Anti-Doping Authority (ASADA).
In that request you referred to a document outlined in The Age on 15 May 2014 (about a “secret deal
struck between ASADA and the Government”) and sought access to:
“a copy of the document and/or any other documents relating to the framework and terms of the
joint investigation, including the negotiations between the AFL and ASADA, and the provision of the
interim report to the AFL.”
On 3 June 2014, in a telephone conversation with Alexie Finucan, Lawyer, ASADA, you clarified the scope
of your request so to include access to:
a) all documents relating to the ‘secret deal struck between ASADA and the Government’ which
allegedly took place on 20 February 2013 (as stated to in The Age, 15 May 2014);
b) all documents relating to the framework and terms setting up the joint investigation between the
AFL and ASADA;
c) all documents relating to any discussions or negotiations between the AFL and ASADA about the
investigation being conducted jointly; and
d) all documents relating to the circumstances that gave rise to the provision of the interim report to
the AFL.
You were advised on 16 June 2014 of ASADA’s decision to refuse access to the documents under the FOI
Act.
You requested an internal review of that decision on 24 June 2014 via email.

In that email you stated:
“Given that a number of the documents in relation to the February - March 2013 framework
negotiations are now in the public domain I would like to request that you reconsider your claim of
exemption in respect of those and other related documents on the basis of s.37(2).”
In a further email on 24 June 2014, you provided additional information in relation to the documents ‘in
the public domain’, stating:
“In the first place please find a link to some of the documents in the list provided to me in
response to my FOI application and which you claim s37(2) exemption that have been published
today by the Australian newspaper: http://t.co/w4ckWNDkdA.”
On Monday, 28 July 2014, the Office of the Australian Information Commissioner (OAIC) granted ASADA an
extension of time to process the internal review.  The extension was granted to close of business on
Monday, 25 August 2014. You were advised of this extension of time, by email, on 29 July 2014.
Decision and reasons for decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to FOI requests.
I completed the internal review on 25 August 2014.
In reviewing the original Statement of Decision dated 16 June 2014, I identified ninety nine (99)
documents which fell within the scope of your request. I agree with and adopt the original Statement of
Decision dated 16 June 2014 to the extent that it relies on the exemptions outlined in sections 37(2), 42,
45(1), 47C and 47F of the FOI Act.
I continue to rely on the exemption outlined in section 37(2) of the FOI Act (relating to documents that
would, or could reasonably be expected to prejudice the fair trial of a person or the impartial adjudication
of a particular case) as the decision in the Federal Court Proceedings is yet to be handed down, and once it
has, it will be subject to an appeal period. While ASADA is subject to the appeal period, I will continue to
deny you access to documents that could reasonably be expected to prejudice the fair trial or impartial
adjudication of any appeal relating to the Federal Court Proceedings.
I note that none of the 99 documents found to be within scope were in the public domain at the time of the
original decision (that is, on 16 June 2014).   Since that date, ten (10) documents are now available in the
public domain. I have decided to release those documents in the form available on the Federal Court
website. The attached schedule of documents provides a description of each document that falls within
the scope of your request and the grounds for granting or denying you access to those documents. The
relevant documents that I have granted access to are highlighted in yellow for ease of reference.
I also refer you to the Federal Court website (http://www.fedcourt.gov.au/) where you may find additional
material that has been published from the Federal Court proceedings Hird v CEO of ASADA [2014] FCA
328 and Essendon Football Club v CEO of ASADA [2014] FCA 237 (‘Federal Court Proceedings’) but which
fell outside the scope of your FOI request.
Material taken into account
I have taken the following material into account in making my decision:
  your emails dated 16 May 2014 and 24 June 2014 (two);
  the FOI Act (specifically sections 11, 11A, 11B, 37(2), 42, 45(1), 47C , 47F and Part VI);
  the ASADA Act 2006 (Cth), the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) and
the NAD scheme; and
  the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act.

The schedule indicates each document to which access is granted or refused. As outlined above, I have
decided to release ten (10) documents to you.

2

Your review rights
If you are dissatisfied with my decision, you may apply to the OAIC for review.  An application for review by
the Information Commissioner must be made in writing within 60 days of the date of this letter, and be
lodged in one of the following ways:

online:
https://forms.australia.gov.au/forms/oaic/foi-review/
email:  xxxxxxxxx@xxxx.xxx.xx

post:
GPO Box 2999, Canberra ACT 2601

in person:
Level 3, 175 Pitt Street, Sydney NSW
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go to:
www.oaic.gov.au/foiportal/review_complaints.html#foi_merit_reviews.
Questions about this decision
If you wish to discuss this decision, please contact Alexie Finucan, Lawyer, on (02) 6222 4254 or
Bronwyn Fagan, Director Legal Services on (02) 6222 4271 or xxxxx@xxxxx.xxx.xx.

Yours sincerely

Ben McDevitt AM APM
Chief Executive Officer

3