ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2020/065/IR
FREEDOM OF INFORMATION ACT 1982 (Cth)
REQUEST BY:
Mr John Smith
DECISION BY:
John Reid
First Assistant Secretary
Government Division
Mr John Smith
By Email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
I refer to your email, dated 16 May 2020, seeking internal review of the decision (the
primary decision), made on 14 May 2020 by Will Story, acting First Assistant Secretary,
APS Reform, Department of the Prime Minister and Cabinet (the
Department), in relation to
your request, made under the
Freedom of Information Act 1982 (the
FOI Act) on 12 March
2020 and revised on 2 April 2020 following a practical refusal consultation process, in the
following terms:
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.
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.
The primary decision identified three documents in scope of the request (the
requested
documents) and decided to:
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
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 conditionally 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.
Under section 54(2) of the FOI Act, an applicant is entitled to apply for an internal review of a
decision refusing to give access to a document in accordance with a request.
In your request for internal review of the primary decision, you indicated that:
I disagree that the public interest test has not been met. The document should be
disclosed in spite of it being a 'conditionally exempt document'.
There is a clear and strong public interest in Australians having full view of the
deliberative inputs that lead to decisions and recommendations. So much the more so,
when the documents relatie to nation-wide reforms of the public service. It is hard to
imagine a stronger public interest than full transparency regarding this critical
reform.
Deliberative process considerations ought to be accorded less weight when the
decision/recommendation that the deliberative process pertains to, has already
concluded. It is my understanding that the deliberative process came to an end, with
the delivery of the 'Independent review of the APS' report.
The assertion that the ability of the Commonwealth to obtain advice from
consultancies in the future, is not well founded. The Commonwealth would simply be
able to accept open tenders from consultancies that are willing to have their
documents subject to the ordinary processes of the FOI act. I am sure that given the
sums involved, there are many firms that would be willing to provision consultancy
services of just as good a quality as McKinsey; even if they had to do so under the
knowledge that their advice may be visible through FOI.
I do argue then that the decision maker's reasons, are not well-founded reasons for the
decision being against the public interest.
"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."
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In addition, these reasons that the conditionally exempt release would be against the
public interest; are prohibited reasons that the decision maker was obligated not to
take into account. They are reasons that assert a 'loss of confidence in the
Commonwealth Government', albiet a loss of confidence in the Cth government by
either McKinsey, or another imagined future consultancy firm.
As the decision maker has included a s11B(4) prohibited reason in their decision to
withhold release of the documents, I request that the documents be released in full;
excepting for redactions where necessary to protect the privacy of natural persons
(where such privacy is in the public interest).
In a follow-up email you sent to the Department on 18 May 2020, you indicated that:
In furtherance of my argument that the decision should be overturned, I note the
following:
McKinsey routinely has 'confidential & proprietary documents' returned through FOI
requests to Commonwealth agencies. This can be seen for example, through the
outcome of a recent request to the NDIA. The outcome of that request returned a
large, confidential & proprietary document of McKinsey, with little redaction. (e.g.
here: https://www.righttoknow.org.au/request/mckinsey_3#incoming-17295 )
Other consultancies also frequently have their confidential & proprietary documents
returned through FOI, especially when those documents regard matters of interest to
the public.
The argument that full transparency astoward the documents McKinsey supplied to
the agency for the purpose of the agency's eventual report; would result in a 'chilling
effect' upon the department's ability to procure consultancy services is therefore
absurd.
Authorised decision maker
Section 54C(2) of the FOI Act provides that an agency must arrange for a person (other than
the person who made the original decision) to review the decision. I am authorised to make
this decision in accordance with arrangements approved by the Department’s Secretary under
section 23 of the FOI Act.
Internal review decision
As Document 3 was released in full, this internal review request relates to Documents 1 and 2.
I have decided to vary the primary decision in relation to Documents 1 and 2.
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 conditionally 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; and
grant access, in part, to Document 2, on the basis it contains information that is:
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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.
Further information is set out in the attached Schedule at Attachment A.
The practical effect of my internal review decision is to release additional information
contained in Documents 1 and 2, which were previously exempted from release.
The documents being released to you under this internal review decision are
attached.
In reaching my internal review decision, I have had regard to:
the terms of your FOI request;
the documents relevant to the FOI request;
the primary decision;
your request for internal review;
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 FOI Act’ (the
FOI Guidelines).
Reasons
I have carefully reviewed Documents 1 and 2, your submissions in support of your request for
internal review, and the comments from the third party that was consulted in relation to this
request. I have decided that parts of Documents 1 and 2 are appropriate for release.
In relation to the remainder of the material within Documents 1 and 2, I am satisfied with the
primary decision findings and reasons underpinning those findings (namely, that they are
exempt from release). Accordingly, I adopt and affirm those findings and reasons as my own
for the purposes of this internal review. I have therefore affirmed the primary decision over
those parts of Documents 1 and 2.
Further, in your request for internal review, you contended that the primary decision-maker
had taken into account reasons that were prohibited under section 11B(4) of the FOI Act for
the purposes of the public interest test, on the basis that they equate to an assertion of
“a 'loss
of confidence in the Commonwealth Government'”.
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.
I do not agree with your contention, on the basis that the factors against disclosure which were
considered by the primary decision-maker are of a different nature and do not relate to the
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argument that “
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in confidence in the Commonwealth Government”. The factors
considered by the primary decision-maker are the relevant factors from the list set out in
paragraph 6.22 of the FOI Guidelines, which provides:
6.22 A non-exhaustive list of factors against disclosure is provided below.
…
h. could reasonably be expected to prejudice an agency’s ability to obtain
confidential information
i. could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future
j. could reasonably be expected to prejudice the competitive commercial activities of
an agency
k. could reasonably be expected to harm the interests of an individual or group of
individuals
…
Accordingly, I am satisfied that the factors against disclosure considered by the primary
decision-maker are relevant and appropriate, and have adopted those as my own for the
purposes of this internal review decision.
Publication of the documents
Under section 11C of the FOI Act, the Department will make arrangements to publish the
documents released to you as part of my internal review decision on the Department’s FOI
Disclosure Log.
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 your complaint rights 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/. Yours sincerely
John Reid
First Assistant Secretary
Government Division
15 June 2020
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FOI REQUEST: FOI/2020/065/IR
SCHEDULE OF DOCUMENTS
FOI
Document
Description
Primary Decision
Internal Review Decision
1
Proposal
Exempt in part under:
Exempt in part under:
s45 – confidential information
s45 – confidential information
s47 – commercially valuable information
s47 – commercially valuable information
s47F(1) – personal information
s47F(1) – personal information
s47G(1) – business information
s47G(1) – business information
2
Powerpoint
Exempt in full under:
Exempt in part under:
presentation
s45 – confidential information
s45 – confidential information
s47 – commercially valuable information
s47 – commercially valuable information
s47C – deliberative material
s47C – deliberative material
s47F(1) – personal information
s47F(1) – personal information
s47G(1) – business information
s47G(1) – business information
3
Independent Review Release in full – publicly available at
Not in scope of internal review
of the APS:
(https://www.apsreview.gov.au/sites/default/files/resources/aps-
Priorities for
review-priorities-change.pdf)
Change report
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
