19 October 2020
John Smith
Righttoknow.org.au
By email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Freedom of Information Request
Decision Regarding Release of Documents
Dear Mr Smith
Background
1
On 21 May 2020 you submitted an email to Austrade’s Freedom of Information (“FOI”) Co-ordinator in
which you under the
Freedom of Information Act 1982 (the “
FOI Act”) sought access to:
“the contract between Austrade and CLEMENGER BBDO (SYDNEY) PTY LTD; in
association with Cth tender ID CN3566971” (the “
FOI Request”)
.
2
As Austrade’s FOI Co-ordinator, I confirmed receipt of your FOI Request by email dated 4 June 2020.
3
On 22 June 2020, I informed you by email that the requirement to conduct further consultations in
regard to business documents and personal privacy made it appropriate to extend the response
period by 30 days in accordance with section 15(6) of the FOI Act.
4
By email dated 13 July 2020, I provided a preliminary assessment of the charge of $78.10 to you and
requested further substantiation of your claim that all fees should be waived due to the particular
public interest of the FOI Request. On 15 July 2020, you requested clarification and internal review of
how the charges were calculated and asked me to waive the assessed fee on certain grounds under
the FOI Act. On 22 July 2020 you followed up with a copy of certain information to support your waiver
application (as this letter will be publicly available I will refer in general terms to the ground for waiver
and the evidence you have provided, to protect your privacy).
5
By email dated 27 July 2020, I acknowledged your contention of ground for waiver of fees and
requested that you provide further evidence to support your claim.
6
On 28 August 2020, I sent to you an email notifying you that I had not yet received a response to my
email dated 27 July 2020 and that I would consider your request withdrawn unless you responded by
28 September 2020. You responded by email dated 28 August 2020 that you were still seeking a
waiver of fees and you attached further evidence.
2 Phillip Law Street
New Acton
ACT 2601
Australia
W. www.austrade.gov.au
ABN: 11 764 698 227
If you are not the intended addressee of this letter, please notify the sender immediately and destroy this. Australia’s anti-bribery laws operate
overseas and Austrade will not provide business related services to any party who breaches the law and will report credible evidence of bribery.
7
By email to you on 14 October 2020, I decided to waive the assessed fee on the grounds in that
email, relying on the supporting evidence you have provided.
8
This letter provides Austrade’s decision about your FOI Request.
9
We intend to provide documents electronically, please advise if you require documents in hard copy.
Scope
10
On 4 June 2020, by email, I advised that unless otherwise notified within five days, we would exclude
the names and contact details of government officials not at the Senior Executive Service (SES) level,
and the mobile numbers of all government officials.
Exemptions
11
In making my decision, I have considered:
(a)
the FOI Act; and
(b)
the FOI Guidelines produced by the Office of the Australian Information Commissioner.
12
I applied two categories of exemption to documents identified as within scope of the FOI Request.
Business information
13
Section 47G(1)(a) of the FOI Act provides grounds for a conditional exemption of information
concerning the business, commercial or financial affairs of an organisation or undertaking (business
information), where the disclosure 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.
14
The documents covered by the FOI Request are contracts, which are commercial in nature and
therefore business information with respect to the other party of the contract, Clemenger BBDO
(Sydney) Pty Ltd (“Clemenger BBDO”). The contracts were not deemed confidential by the parties, so
I did not consider s45 of the FOI Act to be an applicable ground for exemption.
15
However, following consultations with Clemenger BBDO, I am satisfied that those parts of the
contracts that show hourly rates of individual professionals or that would allow for the calculation of
such hourly rates or pricing strategies, could, if disclosed, be reasonably be expected to unreasonably
affect Clemenger BBDO’s lawful business or professional affairs.
16
In particular, giving insights into the pricing strategies of a business would give competitors of that
business an unfair advantage in terms of pricing their own services when competing with the
business. When making a business proposition, one of the key factors in determining the proposal’s
attractiveness will be the question of how the pricing compares with the pricing of other businesses
competing for the transaction. Knowing how Clemenger BBDO priced its services in the context of
these contracts can be reasonably expected to allow its competitors to match or undercut its rates on
similar engagements in the future thereby unreasonably affecting Clemenger BBDO’s lawful business.
17
Section 47G is a conditional exemption. See below for public interest test discussion.
Personal privacy
18
I am satisfied that the documents listed in the Schedule as subject to section 47F contain information
with the requisite characteristics of ‘personal information’. The documents indicated in the Schedule
contain personal information such as names, employment position/title, contact details (and telephone
numbers) of other third parties.
2
19
In assessing whether a particular disclosure would be ‘unreasonable’, section 47F(2) sets out a
number of factors which I must consider. These factors are:
(a)
the extent to which the information is well known;
(b)
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;
(c)
the availability of the information from publicly accessible sources; and
(d)
any other matters that the agency or Minister considers relevant.
20
The personal information in the documents is not well known nor available from publicly accessible
sources. I also consider it relevant that the information is not your personal information and every
person has a right to expect that their personal information will be securely maintained by Austrade,
especially having regard to section 94 of the
Australian Trade and Investment Commission Act 1985.
21
Section 47F is a conditional exemption. See below for public interest test discussion.
22
Section 22 of the FOI Act allows for exempt information within a document to be deleted and the rest
of a document to be released. Therefore, I have redacted relevant section 47F information from the
documents listed in the Schedule, and intend to release the rest of the documents.
Public interest test for conditional exemptions
23
In determining whether release would be contrary to the public interest, I have made an individual
public interest assessment for each conditional exemption. I have combined those assessments into
the following section.
24
Section 11B(3) of the FOI Act sets out factors favouring access to documents in the public interest,
including where access would:
(a)
promote the objects of the FOI Act;
(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.
25
Paragraph 6.19 of the FOI Guidelines also provides a non-exhaustive list of other factors favouring
disclosure – I have considered that list.
26
I have assumed that disclosing the documents sought would:
(a)
promote the objects of the FOI Act, by informing the community of the Government’s
operations, including, in particular, the policies, rules, guidelines, practices and codes of
conduct followed by the Government in its dealings with members of the community;
(b)
promote effective oversight of public expenditure; and
(c)
advance the fair treatment of individuals and other entities in accordance with the law in their
dealings with agencies,
so there are public interest factors in favour of disclosure.
3
27
I have specifically ensured that in making my decision I have not taken into account any of the
“irrelevant factors” listed in section 11B(4) of the FOI Act.
28
I am also required to consider factors against disclosure. Although the FOI Act does not specifically
outline factors against disclosure, I must also have regard to the FOI Guidelines. The FOI Guidelines
detail a non-exhaustive list (at paragraph 6.22) of factors against disclosure. My consideration is
noted in italics beneath each relevant factor. Factors against disclosure, include where disclosure:
(a) could reasonably be expected to prejudice the protection of an individual’s right to privacy,
Austrade regularly contracts with businesses and their representatives’ privacy needs to be
protected in the same way as any other individuals’ privacy under the Privacy Act 1988;
(b) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the
future,
if individuals performing tasks on behalf of Austrade need to be concerned about their
personal information or their competitive pricing being released by Austrade to third parties
without a legitimate reason for release, such individuals or businesses can be expected to
show reluctance to work for Austrade or to disclose detailed pricing information to Austrade in
the future;
(c) could reasonably be expected to prejudice the competitive commercial activities of an agency,
Austrade needs to contract with commercial entities in order to better serve its functions
under the Austrade Act and needs to conduct itself in a manner that is consistent with
commercial practices, and release of competitive pricing information to third parties might
impair Austrade’s reputation as an agency that supports commercial activities;
(d) could reasonably be expected to harm the interests of an individual or group of individuals,
the release of competitive pricing information, without a legitimate reason for release, would
give Clemenger BBDO’s competitors an advantage in future bids for government contract
work and thereby harm Clemenger BBDO’s commercial interests.
(together, the
Factors Against).
29
I have determined that even if the factors for disclosure were made out, in each instance, for each
exemption, the Factors Against considerably outweigh any factors for disclosure, such that release of
the personal information would be contrary to the public interest and the personal information is
therefore exempt.
Redactions
30
Section 22 of the FOI Act also allows me to provide you with edited copies of documents to remove
irrelevant or exempt material. This has been utilised throughout the documents.
Decision
31
The Schedule to this decision letter details the documents to be released in response to the FOI
Request, and whether I intend to release them partially or in full.
32
I am not satisfied that release of the section 47G business information and the section 47F personal
information is in the public interest, and my determination is that the Factors Against outweigh the
section 11B public interest factors for disclosure. I have therefore decided to release the documents
with redactions to remove the information subject to the section 47G and 47F conditional exemptions.
4
Review rights
33
Under section 54 of the FOI Act, you may apply in writing to Austrade for an internal review of my
decision. An internal review application must be made within 30 days of the date of this letter.
34
Please attach reasons why you believe review of the decision is necessary. The internal review will be
carried out by another officer within 30 days.
35
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. 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 5218 Sydney NSW 2001
36
You wil also find useful information on the OAIC’s website:
www.oaic.gov.au/foi-portal/review_complaints.html#foi_merit_reviews.
http://www.oaic.gov.au/freedom-of-information/freedom-of-information-topics/topics-for-
individuals/how-do-i-apply-for-an-information-commissioner-review-of-a-freedom-of-information-
decision
37
You can contact the OAIC on 1300 363 992.
38
You can contact me on xxx.xxxxxxxxxxxx.xxxxxxx@xxxxxxxx.xxx.xx.
Yours sincerely,
[signed and sent by email on 19 October 2020]
Geoff Budd
Manager Legal Services, Legal, Procurement and Fraud
Australian Trade and Investment Commission (Austrade)
5
SCHEDULE OF DOCUMENTS
Table 1: Freedom of information request – Mr John Smith
#
Description
Date
Decision
Reasons for decision
on
access
1
Agreement for Services for brand
14/12/2018
Partial
S47F – personal privacy
development and creative services for
Australia’s nation brand
s47G - business information
S22 – out of scope
2
Work Order under Agreement for Services 15/01/2019
Partial
S47F – personal privacy
dated 14 December 2018
s47G - business information
S22 – out of scope
3
Work Order under Agreement for Services 15/08/2019
Partial
S47F – personal privacy
dated 14 December 2018
s47G - business information
S22 – out of scope
4
Work Order under Agreement for Services 04/11/2019
Partial
S47F – personal privacy
dated 14 December 2018
s47G - business information
S22 – out of scope
5
Work Order under Agreement for Services 22/01/2020
Partial
S47F – personal privacy
dated 14 December 2018
s47G - business information
S22 – out of scope
6