15 July 2020
Mr John Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/06/00447-R1
File Number:
OBJ2020/19008
Dear Mr Smith
Decision on Internal Review – Freedom of Information Act 1982
I refer to your correspondence dated 17 July 2020 in which you request that the Department
of Home Affairs (the Department) review its decision on access to documents dated 16
June 2020 under the
Freedom of Information Act 1982 (the FOI Act).
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Scope of original request
The scope of your original request for access to documents under the FOI Act was as
follows:
Documentation indicating the Minister's preference for retaining the services of Save
the Children for welfare services on Nauru over the possibility of seeking a quote
from Transfield, and the reasoning for this preference.
According to ANAO Auditor-General Report no. 16 of 2016-17, this preference was
stated in writing on 3 December 2013 (see paragraph 3.67 of the report).
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Original Decision on access dated 16 June 2020
The Department identified one document as falling within the scope of your original request.
This document was in the possession of Department on 9 June 2020 when your FOI request
was received.
The original decision maker decided to:
• Exempt one document in full from disclosure.
3
Request for Internal Review
On 17 July 2020, you requested the Department to review its decision dated 16 June 2020.
In your application you stated: “I request an internal review of this decision”.
1
2 Lonsdale Street, Me bourne 3001
• xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
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Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate departmental records.
In accordance with section 54C(3) of the FOI Act, I have made a fresh decision on your FOI
request.
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Information considered
In reaching my decision, I have considered the following:
• the scope of your request
• the Department’s original decision of 16 June 2020 and the evidence gathered
for that decision
• the Department’s decision, correspondence and consultations with respect to
FA19/11/01159; an identical access request.
• your submissions in relation to your reasons for requesting an internal review
• the documents falling within the scope of your request
• advice from departmental officers with responsibility for matters relating to the
information to which you sought access
• the FOI Act, and
• the Australian Information Commissioner’s guidelines relating to the
interpretation, operation and administration of the FOI Act (the FOI guidelines).
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Internal Review Decision
I have decided to affirm the original decision of the Department dated 16 June 2020 (“the
original decision”) in relation to the documents previously identified by the Department as
falling within the scope of your request.
7
Reasons for Internal Review Decision
I have reviewed the documents that fall within the scope of this request and I have
considered the submissions made by you in relation to your reasons for requesting an
Internal Review.
I have noted that your request is identical to another FOI access request received by the
Department – FA19/11/01159. Accordingly I have referred to the decision, advice and
consultations made with respect to FA19/11/01159 whilst undertaking the internal review of
your access request.
My reasoning in relation to the application of each section to particular documents is set out
below.
7.1
Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose
information that would reasonably be regarded as irrelevant to the request, it is possible for
the Department to prepare an edited copy of the document, modified by deletions, ensuring
that the edited copy would not disclose any information that would reasonably be regarded
as irrelevant to the request.
On 11 June 2020, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI
request.
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I have decided that parts of document would disclose information that could reasonably be
regarded as irrelevant to your request. I have therefore prepared an edited copy of the
document, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the document has been considered for release to you as it is relevant to
your request.
7.2
Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the
functions of the Department. As you were advised on 16 June 2020:
‘Deliberative matter’ includes opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the
deliberative processes of an agency.
‘Deliberative processes’ generally involves “the process of weighing up or evaluating
competing arguments or considerations”1 and the ‘thinking processes –the process
of reflection, for example, upon the wisdom and expediency of a proposal, a
particular decision or a course of action.’2
The document in scope of your request is a submission to the Minister dated 29 November
2013.
The document contains advice, opinions and recommendations prepared or recorded in the
course of, or for the purposes of, the deliberative processes involved in the functions of
Department, being the operating arrangements of the Offshore Processing Center at Nauru.
I am satisfied that this deliberative matter relates to a process that was undertaken within
government to consider whether and how to make or implement a decision, revise or
prepare a policy, administer or review a program. 3
Disclosure of this deliberative information could reasonably be expected to inhibit full and
frank advice from the Department to its Minister, and, as a result, full consideration by the
Government on any potential future consideration of amendments to legislation and/or
contractual arrangements. Disclosure of some deliberative information, on which a decision
has not yet been taken, could also reasonably be expected to prejudice consultations with
relevant stakeholders.
As you were previously advised, section 47C(2) provides that “deliberative matter” does not
include purely factual material; I am satisfied that the deliberative material is not purely
factual in nature.
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that the information is conditionally exempt under section 47C of the FOI
Act. Access to a conditionally exempt document must generally be given unless it would be
contrary to the public interest to do so. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 5.5 below.
7.3
Section 47E of the FOI Act – Operations of Agencies
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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Section 47E(d) of the FOI Act provides that documents are conditionally exempt if
disclosure would, or could reasonably be expected to, have a substantial adverse effect on
the proper and efficient conduct of the operations of an agency.
I have reviewed the document in scope of this request carefully, and I consider that the
disclosure of the Ministerial Submission could reasonably be expected to have a substantial
adverse effect on the proper and efficient conduct of the operations of the Department.
Managing the security and integrity of Australia's borders is integral to the operations of the
Department. Regional Processing Centres, such as Nauru, support the protection of
Australia’s borders. Any prejudice to the effectiveness of the operational methods and
procedures used in undertaking that role would result in a substantial adverse effect on the
operations of the Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its
law enforcement partners, to change those methods and/or procedures to avoid
jeopardising their future effectiveness.
I have decided that the document is conditionally exempt under section 47E(d) of the FOI
Act. Access to a conditionally exempt document must generally be given unless it would
be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in
that regard at paragraph 5.5 below.
7.4
Section 47G of the FOI Act – Business Affairs
Section 47G(1)(a) of the FOI Act permits conditional exemption of documents containing
business information where disclosure of that information would, or could reasonably be
expected to, unreasonably affect the organization adversely in respect of its lawful business,
commercial or financial affairs.
I have considered that the document in scope of your request contains information
concerning the business, commercial or financial affairs of an organization.
As identified in the original decision, the information is in the nature of contract transitions.
In determining whether disclosure of the information within the documents would or could
reasonably be expected to adversely affect the lawful business, commercial or financial
affairs of an organisation, I have had regard to the following factors:
(a)
The extent to which the information is well known;
(b)
Whether the organisation or undertaking is known to be associated with the
matters dealt with in the documents;
(c)
The availability of the information from publicly accessible sources; and
(d)
Any other matters that the Department considers relevant.
The information contained within these documents is not in the public domain, the
organisation concerned is not generally known to be associated with the matters referred
to in these documents, and the information is not available from publicly accessible sources,
such as the organization’s website. I am therefore satisfied that the disclosure of the
information would, or could reasonably be expected to, unreasonably affect that
organisation in respect of its lawful business, commercial or financial affairs.
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I have decided that the document referred to above is conditionally exempt under section
47G of the FOI Act. Access to a conditionally exempt document must generally be given
unless it would be contrary to the public interest to do so. I have turned my mind to whether
disclosure of the information would be contrary to the public interest, and have included my
reasoning in that regard at paragraph 5.5 below.
7.5
The public interest – section 11A of the FOI Act
As I have decided that the document in scope of your request is conditionally exempt, I am
now required to consider whether access to the conditionally exempt information would be
contrary to the public interest (section 11A of the FOI Act).
A document which is conditionally exempt must also meet the public interest test in section
11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt document would be, on
balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would
do any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and
3A);
(b)
inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Having regard to the above:
•
I am satisfied that access to the document would promote the objects of the FOI
Act.
•
I consider that the subject matter of Regional Processing Centres has the character
of public importance to the Australian public. However, the document at hand has
a more limited scope and, in my view, would be of interest to only a narrow section
of the public.
•
I consider that some insight into public expenditure wil be provided through
examination of the document, given it concerns the Department’s contracts.
•
I am satisfied that you do not require access to the document in order to access
your own personal information.
I have also considered the following factors that weigh against the release of the
conditionally exempt information in the document:
• A Ministerial Submission plays an important role in the relationship between a
Department and its Minister. Its purpose is to provide frank and honest advice. It is
inherently confidential between the Department and its Minister and the
preparation of a Ministerial Submission is essentially intended for the audience of
that Minister alone. A precedent of public disclosure of advice given as a part of a
Ministerial Submission would result in:
concerns existing in the open and honest nature of advice being
provided which may then hinder future deliberations and decision
making processes for the Department and the Government as a whole
and
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future Ministerial Submissions being prepared with a different audience
in mind, which would compromise the quality of the advice being
prepared for the Minister.
I consider that the public interest in protecting the process of the provision of free
and honest confidential advice by a Department to its Minister has, on balance,
more weight, than the public interest that might exist in disclosing the deliberative
matter. Endangering the proper working relationship that a Department has with its
Minster and its ability to provide its Minister with honest advice confidentially would
be contrary to the public interest.
• Disclosure of the conditionally exempt information under section 47C could
reasonably be expected to prejudice the ability of the Department to manage and
evaluate its contractual arrangements. I consider that this would be contrary to the
public interest and that this factor weighs strongly against disclosure.
• Disclosure of the parts of the documents that are conditionally exempt under
section 47E(d) of the FOI Act could reasonably be expected to prejudice the
Department’s ability to provide operational support for Regional Processing
Centres, and by extension, the ability to protect Australia’s borders. I consider there
to be a strong public interest in ensuring that the ability of the Department to
conduct its law enforcement functions is not compromised or prejudiced in any
way. I consider that this would be contrary to the public interest and that this factor
weighs strongly against disclosure.
• Disclosure of the parts of the documents that are conditionally exempt under
section 47G of the FOI Act could reasonably be expected to prejudice the
competitive commercial activities of third party organisations. I consider that this
would be contrary to the public interest and that this factor weighs strongly against
disclosure.
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to
my decision, which are:
a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b) access to the document could result in any person misinterpreting or misunderstanding
the document;
c) the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;
d) access to the document could result in confusion or unnecessary debate.
I confirm that I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded
that the disclosure of the conditionally exempt information in the documents would be
contrary to the public interest and it is therefore exempt from disclosure under the FOI Act.
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Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Details/C2017C00251.
If you are unable to access the legislation through this website, please contact our office for
a copy.
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9
Your Review Rights
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for
a review of this decision. You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a request for a review to the OAIC, please
see Fact Sheet 12 "Freedom of information – Your review rights", available online at
https:/ www.oaic.gov.au/freedom-of-information/foi-review-process.
10 Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it
is considered that the action taken in relation to the request should be investigated and
identify the Department of Home Affairs as the relevant agency.
11 Contact
Should you wish to discuss my decision, please do not hesitate to contact via email at
xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx.
Kristian Hol ins
Authorised Decision Maker
Department of Home Affairs
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