ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2019/065
FREEDOM OF INFORMATION ACT 1982 (Cth)
REQUEST BY:
Mr John Smith
DECISION BY:
Will Story
First Assistant Secretary
APS Reform
Mr John Smith
By Email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
I refer to your email of 12 March 2020 in which you made a request to the Department of the
Prime Minister and Cabinet (the Department) under the
Freedom of Information Act 1982 (the
FOI Act) in the following terms:
I wish to obtain of all documents that meet the following description:
Final reports delivered by the consulting firm McKinsey & Company, to the
department since 18 September 2013. Please narrow this request to documents stored
in either a word document or PDF format.
All documents stored in a powerpoint document format, given to the department by
McKinsey; since 18 September 2013.
On 2 April 2020, the Department issued you with a Practical Refusal Consultation Notice
(PRCN), on the basis that processing the initial request would substantially and unreasonably
divert the resources of the Department from its other operations. The PRCN invited you to
revise the scope of the initial request. On the same day, you responded as follows:
I agree to narrow my request in the following manner:
Please only return finalised reports & powerpoint presentations from McKinsey that
are associated with the following commonwealth tender IDs:CN3575896,
CN3586760-A1, CN3586760. Draft/working documents are unnecessary and outside
the scope of my request.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
Please only include documents that are stored within the department's electronic
records system, or that are stored as attachments within an SES staff member's email
inbox.
Identical documents are unnecessary to include in this FOI request; as are any draft
or interim documents. I am interested in final documents (what is called in the
consulting jargon a 'deliverable') , and final powerpoint presentations (such as those
given when pitching for a tender, or at the end of a tender) only.
On 14 April 2020, the Department advised you that the processing period had been extended
for a further 30 days for the purpose of undertaking a third party consultation, in accordance
with section 15(6) of the FOI Act.
Authorised decision-maker I am authorised to make this decision, in accordance with arrangements approved by the
Department’s Secretary (the Secretary) under section 23 of the FOI Act.
Decision
The Department’s searches of its relevant electronic and paper records identified
three documents within the scope of the revised request.
I have decided to:
grant access, in part, to Document 1, on the basis it contains information that is:
o exempt from disclosure under sections 45 (confidential information) and 47 of
the FOI Act (trade secrets or commercially valuable information); and
o conditional exempt under sections 47F(1) (personal information) and 47G(1)
(business information) of the FOI Act, and its disclosure would be contrary to
the public interest;
refuse access, in full, to Document 2, on the basis it contains information that is:
o exempt from disclosure under sections 45 and 47 of the FOI Act; and
o conditionally exempt under sections 47C (deliberative material), 47F(1) and
47G(1) of the FOI Act, and its disclosure would be contrary to the public
interest; and
grant access in full to Document 3, on the basis that it has already been published.
Further information is set out in the schedule at Attachment A.
In making my decision, I have had regard to the following material:
the FOI request;
the documents identified as relevant to the FOI request;
submissions from the third party that was consulted in relation to this request;
the FOI Act; and
the guidelines issued by the Australian Information Commissioner under section 93A
of the
Freedom of Information Act 1982 (the
FOI Guidelines).
2
Reasons for decision
Section 45(1) of the FOI Act provides that a document is an exempt document if its disclosure
would found an action by a person (other than an agency or the Commonwealth) for breach of
confidence.
The FOI Guidelines state that the exemption is available where the person who provided the
confidential information would be able to bring an action under the general law for breach of
confidence to prevent disclosure, or to seek compensation for loss or damage arising from
disclosure.
The FOI Guidelines state that in order to found an action for breach of confidence (which
means section 45 would apply), the following five criteria must be satisfied in relation to the
information:
it must be specifically identified;
it must have the necessary quality of confidentiality;
it must have been communicated and received on the basis of a mutual understanding
of confidence;
it must have been disclosed or threatened to be disclosed, without authority; and
unauthorised disclosure of the information has or will cause detriment.
I consider that parts of Documents 1 and 2 contain information which, if disclosed, would
found an action for breach of confidence (
confidential information).
The confidential information was communicated and received on the basis of a mutual
understanding of confidence. The requested documents containing that confidential
information was expressly marked as private and confidential, and/or conveyed to the
Department in circumstances that were recognised as private and confidential.
Whilst paragraph 5.172 of the FOI Guidelines states that it is uncertain whether detriment
must be established in order to found an action for breach of confidence, I am satisfied that
unauthorised disclosure of that confidential information will cause detriment to one or more
persons and entities. Even if the name and details of those persons or entities were removed
from the requested documents, the remaining information that is not exempted would result in
those persons or entities being identified with precision.
On an objective basis, the nature of the contents, the circumstances relating to the creation of
the requested documents, together with the manner in which the confidential information was
communicated to the recipients and was received by the Department, all indicate that
disclosure of certain parts of the requested documents would found an action by the person
who provided the confidential information for breach of confidence.
Further, the relevant third party submits that some of the material is subject to confidentiality
obligations to other third parties, and accordingly, any further disclosure would put them in
breach of their obligations of confidentiality. They also submitted that maintenance of the
confidentiality of the information entrusted to them is of critical importance to their ability to
conduct their business, and breach of confidentiality obligations would result not just in legal
actions but incalculable damage to their reputation.
3
I have considered the material in question and the views of the relevant third party, and am
satisfied that those parts of Documents 1 and 2 that contain confidential information are
exempt from release, in accordance with section 45 of the FOI Act.
Trade secrets or commercially valuable information (section 47 of the FOI Act)
Section 47(1) of the FOI Act provides that a document is exempt if it contains information
which, if disclosed, would:
a) reveal trade secrets; or
b) reveal other information having a commercial value which would be, or could
reasonably be expected to be, destroyed or diminished if disclosed.
Parts of Documents 1 and 2 contain certain information that I consider would reveal trade
secrets and/or to hold commercial value.
Paragraph 5.202 of the FOI Guidelines provides that, in order to be exempt under
section 47(1)(b) of the FOI Act, a document must satisfy two criteria:
the document must contain information that has a commercial value either to an
agency or to another person or body, and
the commercial value of the information would be, or could reasonably be expected to
be, destroyed or diminished if it were disclosed.
Pursuant to section 27 of the FOI Act, the Department consulted the relevant third party in
relation to this request, for the purpose of seeking their views on whether the documents
contain their trade secrets and/or commercially valuable information and if so, whether they
should be exempt from disclosure.
The relevant third party has submitted that the information contained in parts of the
documents contain their commercially valuable information which:
is their proprietary information;
comprises the bulk of their intellectual capital, which is the main source of their
market value;
is not in the public domain;
was provided to the Department in confidence; and
if disclosed, would prejudice their commercial interests, as it would enable their
competitors to gain insight into their work.
I have reviewed the relevant material and agree with the submissions of the relevant third
party. Accordingly, I have found that parts of Documents 1 and 2 are exempt from disclosure
under section 47 of the FOI Act, on the basis that they contain commercially valuable
information which would be, or could reasonably be expected to be, destroyed or diminished
if disclosed.
Deliberative material (section 47C of the FOI Act)
Section 47C of the FOI Act provides that:
(1) A document is conditionally exempt if its disclosure under this Act would disclose
matter (
deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation
4
that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Paragraph 6.59 of the FOI Guidelines provides that:
“'Deliberative process’ generally refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.”
Document 2 contains material provided by a consulting firm in the course of delivering
advisory services to the Department. That material includes options, views, analysis and
recommendations in relation to certain strategic issues that were being considered by the
Department. To the extent that parts of those documents contain factual information, I
consider that it is so intertwined with the deliberative matter and cannot be separated.
Accordingly, I consider that Document 2 meets the definition of “deliberative matter” and
therefore is conditionally exempt from release under section 47C of the FOI Act.
Personal information (section 47F(1) of the FOI Act)
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about any
person (including a deceased person).
‘Personal information’ under the FOI Act has the same meaning as in the
Privacy Act 1988 and means
… information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Section 47F(2) of the FOI Act states that in determining whether disclosure of the document
would involve the unreasonable disclosure of personal information, an agency must have
regard to the following matters:
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; and
any other matters that the agency or Minister considers relevant.
Paragraph 6.142 of the FOI Guidelines state that key factors for determining whether
disclosure is unreasonable include:
the author of the document is identifiable;
the documents contain third party personal information;
release of the documents would cause stress on the third party; and
no public purpose would be achieved through release.
5
Parts of Documents 1 and 2 contain the personal information of individuals. The relevant
third party has indicated that they do not agree to the disclosure of the personal information
contained in the documents.
I have reviewed the personal information, and the views of the relevant third party, and I am
satisfied that those parts are conditionally exempt from release, under section 47F(1) of the
FOI Act, as their disclosure would involve the unreasonable disclosure of personal
information.
Business information (section 47G(1) of the FOI Act)
Section 47G(1) of the FOI Act conditionally exempts documents where disclosure would
disclose 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 (business information), where the disclosure of the information:
would, or could reasonably be expected to, unreasonably affect the 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, or
could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an
agency.
Parts of Documents 1 and 2 contain the business information of one or more entities and
individuals. The relevant third party has indicated that they do not agree to the disclosure of
the business information contained in the documents.
I have reviewed the parts that contain business information, and the views of the relevant third
party, and I am satisfied that those parts are conditionally exempt from release, under section
47G(1) of the FOI Act, as their disclosure would involve the unreasonable disclosure of
business information.
Public interest
Section 11A(5) provides that an agency must give an applicant access to a conditionally
exempt document unless its disclosure would, on balance, be contrary to the public interest.
In determining whether disclosure would be contrary to the public interest, a decision maker
is required to balance the public interest factors in favour of disclosure against the factors
against disclosure.
Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must
not take into account when deciding whether access to the document would be contrary to the
public interest:
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in confidence in the Commonwealth Government;
access to the document could result in any person misinterpreting or misunderstanding
the document;
the author of the documents was (or is) of high seniority in the agency to which the
request for access to the document was made; or
access to the document could result in confusion or unnecessary debate.
6
Public interest factors favouring disclosure
I have considered the following factors favour access to the conditionally exempt information:
access would promote the objects of the Act; and
access would promote effective oversight of public expenditure.
Public interest factors against disclosure
The FOI Guidelines contain a non-exhaustive list of factors that may apply when considering
non-disclosure.
In relation to the material that I consider conditionally exempt under section 47C of the FOI
Act, the factors against disclosure of that material are that, in my view, disclosure would, or
could reasonably be expected to:
restrict the free flow of information between the Department and a consulting firm
engaged by the Department for sound and effective decision making;
inhibit the ability of the Department to receive candid and comprehensive advice and
information from a consulting firm – thereby diminishing the quality and usefulness of
the information and advice provided; and
curtail the ability of the Department, and the Government more generally, to deliberate
and consider strategic issues comprehensively, if such deliberations and considerations
are unable to be conducted within an appropriate environment of confidentiality.
In relation to the material that I consider conditionally exempt under sections 47F(1) and
47G(1) of the FOI Act, the factors against disclosure of that material are that, in my view,
disclosure would, or could reasonably be expected to:
prejudice the protection of an individual’s right to privacy;
harm the business interests of an individual or group of individuals; and
prejudice the Department’s ability to obtain confidential information and/or future
services from commercial firms.
I have not taken any of the irrelevant factors as set out in section 11B(4) of the FOI Act into
account in making my decision.
After careful consideration of all relevant factors I have decided that the factors in favour of
disclosure are outweighed by the factors against disclosure. Accordingly, I have found that
release of the conditionally exempt material contained in the requested documents would, on
balance, be contrary to the public interest.
Review rights
Information about your rights of review can be found on the website of the Office of the
Australian Information Commissioner a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/.
Complaint rights
Information about you complaint rights can be found on the web site of the Office of the
Australian Information Commissioner a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/.
7
Yours sincerely
Will Story
First Assistant Secretary
APS Reform
14 May 2020
8
FOI REQUEST: FOI/2020/065
SCHEDULE OF DOCUMENTS
FOI
Document
Description
Decision
1
Proposal
Exempt in part under:
s45 – confidential information
s47 – commercially valuable information
s47F(1) – personal information
s47G(1) – business information
2
Powerpoint presentation
Exempt in full under:
s45 – confidential information
s47 – commercially valuable information
s47C – deliberative material
s47F(1) – personal information
s47G(1) – business information
3
Independent Review of the APS: Priorities for
Release in full – publicly available at
Change report
(https://www.apsreview.gov.au/sites/default/files/resources/aps-review-
priorities-change.pdf)
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191