Our reference: 2020/1731
Sarah
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx 11 November 2020
Dear Sarah
YOUR FREEDOM OF INFORMATION REQUEST FOI132
I refer to your email dated 9 June 2020 seeking access to documents under the
Freedom of Information
Act 1982 (the FOI Act). You requested the following information:
Documents relating to the implementation of recommendations 1 to 5 given by the ANAO (and
agreed to by the NAA) in the audit of the 'Implementation of the Digital Continuity 2020 Policy'
available at: https://www.anao.gov.au/work/performance-audit/implementation-digital-continuity-
2020-policy. The date range is for documents created between 1 November 2019 to 29 May 2020,
inclusive.
We apologise for the lengthy delay in response.
On 11 November 2020, the National Archives of Australia (the National Archives) applied to the Office of
the Information Commissioner (OAIC) for an extension of time under section 15AC(4) of the FOI Act, in
order to remove the deemed refusal of your FOI request. This request is currently being considered by
OAIC and we will receive a decision in due course. Please note that the review rights outlined in
Attachment C will only apply if the OAIC grants the extension of time. We will notify you accordingly.
SUMMARY OF DECISION
Searches
In my search I found 27 documents relating to the implementation of ANAO’s recommendations that were
within your requested date range that I have defined as being in scope. The search for documents was
conducted by contacting the relevant line area, Commonwealth Information Management, within the
National Archives.
Decision on access
In summary, I have decided to:
•
Grant you full access to 2 documents in full;
•
Grant you part access to 24 documents with some of the content removed under sections 22(1)(a)(ii)
and 47C(1) of the FOI Act; and
•
Refuse access to 1 document under section 47C(1) of the FOI Act.
REASONS FOR DECISION
I am authorised to make decisions under section 23(1) of the FOI Act.
Section 17 of the FOI Act – Requests involving use of computers
Document 23.1 (slides) contains comments which are not available in a discrete form in a written
document. However, while the information is not available in a discrete form, it is available for
extraction from document 23.1 as held by the National Archives.
Section 17 of the FOI Act relates to requests involving the use of computers and provides as
follows:
Where:
a request (including a request in relation to which a practical refusal reason exists) is made
in accordance with the requirements of subsection 15(2) to an agency;
it appears from the request that the desire of the applicant is for information that is not
available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a
computer tape or computer disk on which the information is recorded; and
the agency could produce a written document containing the information in discrete form
by:
the use of a computer or other equipment that is ordinarily available to the agency for
retrieving or collating stored information; or
the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so
produced and containing that information and, for that purpose, this Act applies as if the agency had
such a document in its possession.
Although it is not a requirement of the FOI Act to produce/create a document, the National Archives
has nevertheless produced a document (document 27) containing some of the information requested
by you which captures the comments included in the slides in document 23.1.
Section 22(1)(a)(ii) – irrelevant/ out of scope material
Section 22(1)(a)(ii) of the FOI Act states that access to a document can be provided with the exempt or
irrelevant matter deleted if it is decided
‘that to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request for access..’. I have assessed the information in these documents (as set out in the schedule) and I am satisfied that
the content exempted is irrelevant to the scope of your request. This material does not relate to the
implementation of the ANAO recommendations in the audit of the Digital Continuity 2020 Policy.
I have also removed contact points, contact details and full names of individuals both internal and
external to the National Archives. After consideration I have decided that the information removed under
this section would not provide further information within scope of your request.
Section 47C(1) – Public Interest conditional exemptions – deliberative processes
Section 47C(1) states that ‘
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 that has taken place, in the course of, or
for the purposes of, the deliberative processes involved in the functions of: an agency; or a minister; or
the Government of the Commonwealth.’
Paragraph 6.58 of the FOI Guidelines states that deliberative processes are essentially the “thinking
processes” of the agency: “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” (paragraph 6.59).
I consider that the information in documents exempted from release under section 47C(1) (refer to
schedule at Attachment A) is deliberative/ in draft form, not finalised and not in the public domain. The
documents also contain opinion and deliberations prepared or recorded in the course of, or for the
purpose of, the deliberative processes involves in the functions of the National Archives. Essentially, the
documents shows the deliberation process leading to agency decisions. Accordingly, I have decided that
the information is conditionally exempt under section 47C(1) of the FOI Act.
Public Interest Test – section 11A(5) of the FOI Act
When a document is conditionally exempt, the public interest test must be considered.
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI Act, I
have taken into account relevant factors in favour of disclosure. In particular, I have considered the extent
to which disclosure would:
• promote the objects of the FOI Act
• inform debate on a matter of public importance
• promote effective oversight of public expenditure; and
• allow a person to access his or her personal information.
Deliberative processes– s 47C In favour of promoting the objectives of the FOI Act I have released finalised documents from the
National Archives. I have not released draft/deliberative content in these documents as the disclosure of
this information would not outweigh the risks of harm to the National Archives’ functions that could be
reasonably expected if the information was released.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act in
making this decision.
MISCELLANEOUS
I note that documents 3, 5, 11 and 21 contain information compiled from the agencies that attended
roundtable discussions. Some or all of these comments are not attributed to any particular person or
agency. Accordingly, I note that the issues raised in the documents may not be reflective of all persons or
agencies in attendance.
RELEVANT MATERIALS
In reaching my decision I referred to the following:
• the terms of your request
• the documents relevant to the request
• advice from departmental officers with responsibility for matters relating to the document to which
you sought access
• advice from external Commonwealth government agencies relating to some of the documents to
which you sought access
• the FOI Act; and
• the Guidelines published by the Office of the Information Commissioner under section 93A of the
FOI Act (the FOI Guidelines).
CHARGES
Section 29 of the FOI Act authorises an agency or Minister to impose a charge for providing access to a
document.
In this case, it has been decided that charges will not be imposed.
REVIEW RIGHTS
See Attachment C for more information about your rights to seek a review of this decision (pending
OAIC’s approval of our section 15AC extension request).
If you have any queries about this notice, please contact me in writing vi
a xxx@xxx.xxx.xx.
Yours Sincerely,
Helen Athanasiadis
Manager – Integrity (Legal Policy and Compliance)
Authorised FOI Decision Maker
ATTACHMENT A – SCHEDULE OF DOCUMENTS
Document
Date
Size
Description
Decision
Exemption/irrelevant
Comment
no.
1
22/10/2019
8 pages
R1047922019 – Digital continuity 2020 – Agency
Partial
s 22(1)(a)(ii) – irrelevant
Created in
Implementation Support – Project Management Plan
Release
/out of scope.
October but
approved and
finalised in
December
2
04/11/2019
1 page
R1102482019 – Round Table Discussion at National
Full Release
Archives of Australia - Agenda
3
14/11/2019
3 pages
R1147592019 - Note For File - Roundtable session 1
Partial
s 22(1)(a)(ii) – irrelevant
with Parliamentary Services, Australian Maritime
Release
/out of scope.
Safety Authority and the Royal Australian Mint, 14
November 2019
s 47C(1) – deliberative
material
4
21/11/2019
1 email
R1166942019 - Summary of agency feedback as of
Partial
s 22(1)(a)(ii) – irrelevant
20 November 2019
Release
/out of scope.
s 47C(1) – deliberative
material.
5
28/11/2019
3 pages
R1195282019 - Note For File - Roundtable session 3
Partial
s 22(1)(a)(ii) – irrelevant
with Finance, Treasury, Environment, National
Release
/out of scope.
Gallery, Commonwealth Ombudsman and Foreign
Affairs and Trade, 28 November 2019
s 47C(1) – deliberative
material
6
10/12/2019
3 email
R1232382019 - Approving the DC2020
Partial
s 22(1)(a)(ii) – irrelevant
Implementation Support Program, 10 December
Release
/out of scope.
2019
7
7/01/2020
1 email
R10102020 - Outcomes of consultation on DC2020
Partial
s 22(1)(a)(ii) – irrelevant
implementation, summary report, 7 January 2019
Release
/out of scope.
7.1
18/12/2019
14 pages
R1257542019 – DRAFT Digital Continuity 2020 –
Full release
Attachment to
Agency Implementation Support Program: Summary
Document 7
report on stakeholder consultation – 18 December
2019
8
9/01/2020
2 pages
R17102020 - DC2020Y - Requiredness of Targets
Partial
s 47C(1) – Deliberative
and Pathways
Release
processes.
9
17/01/2020
1 email
R58712020 - Request for comments and feedback
Partial
s 22(1)(a)(ii) – irrelevant
on "DC2020 - Requiredness of Targets and
Release
/out of scope.
Pathways', 17 January 2020
10
02/12/2019
2 pages
R1231892019 - Note for File - Teleconference with
Partial
s 22(1)(a)(ii) – irrelevant
Administrative Appeals Tribunal (AAT), 10 December
Release
/out of scope.
2019
s 47C(1) – deliberative
material.
11
06/12/2019
3 pages
R1224662019 - Note For File - Roundtable session 4
Partial
s 22(1)(a)(ii) – irrelevant
with Health, AFP, AEC and Safe Work Australia, 5
Release
/out of scope.
December 2019
s 47C(1) – deliberative
material.
12
04/02/2020
10 pages
R105702020 - Digital Continuity 2020 Policy -
Partial
s 22(1)(a)(ii) – irrelevant
Communication & Stakeholder Engagement
Release
/out of scope
13
06/02/2020
12 spreadsheets R126652020 - Digital Continuity 2020 Policy -
Partial
s 22(1)(a)(ii) – irrelevant
Implementation - Risk assessment
Release
/out of scope
14
11/02/2020
3 emails – 2
R131492020 - revised 'Communication and
Partial
s 22(1)(a)(ii) – irrelevant
Attachments are
attachments
Stakeholder Engagement Plan 2020' and 'Risk
Release
/out of scope
duplicates of
Assessment', 11 February 2020
Documents 12
and 13
respectively.
15
19/02/2020
8 pages
R157852020 - DRAFT - DC 2020 Policy
Partial
s 22(1)(a)(ii) – irrelevant
Implementation - Risk Management Plan
Release
/out of scope
16
19/02/2020
1 email – 1
R158152020 - DC2020 Implementation Agency
Partial
s 22(1)(a)(ii) – irrelevant
Attachment is
attachment
Support Program: Key findings from the discussions - Release
/out of scope
duplicate of
Email to program participants, 19 February 2020
Document 18
17
19/02/2020
2 emails
R159392020 - DC2020 Implementation Agency
Partial
s 22(1)(a)(ii) – irrelevant
Support Program: Key findings from the discussions - Release
/out of scope
18
24/02/2020
14 pages
R168232020 - Summary Report on Stakeholder
Full Release
Engagement, December 2019
19
25/02/2020
3 pages
R175342020 - Brief for ADG Collection Management
Partial
s 22(1)(a)(ii) – irrelevant
- DC2020 Implementation Targets and Pathways
Release
/out of scope
20
05/03/2020
1 email
R208712020 - "DC2020 Agency Implementation
Partial
s 22(1)(a)(ii) – irrelevant
Support Program - Next steps', 5 March 2020
Release
/out of scope
21
03/03/2020
1 email
R198482020- advising the ADG has approved the
Partial
s 22(1)(a)(ii) – irrelevant
Brief on DC2020 Targets, 3 March 2020
Release
/out of scope
21.1
27/02/2020
2 pages
Attachment to Document No. 1 – Implementation of
Partial
s 22(1)(a)(ii) – irrelevant
Attachment to
the DC2020 Policy brief
Release
/out of scope
Document 21
22
10/02/2020
2 emails
R131482020 - Comments on the 'Communication
Partial
s 22(1)(a)(ii) – irrelevant
Plan 2020', 10 February 2020
Release
/out of scope
23
31/01/2020
2 emails
R99452020 - Slides on roundtable consultation with
Partial
s 22(1)(a)(ii) – irrelevant
agencies (for GAIN forum on 4 February), 31 January Release
/out of scope
2020
23.1
04/02/2020
10 slides
Attachment to document No. 23.1 – Roundtable
Partial
s 22(1)(a)(ii) – irrelevant
Attachment to
consultation with agencies- slides.
Release
/out of scope
Document 23
24
18/12/2019
1 email
R1257542019 - Comments on draft 'Summary report
Partial
s 22(1)(a)(ii) – irrelevant
on stakeholder consultation', 18 December 2019
Release
/out of scope
24.1
16/12/2019
14 pages
Attachment to Document No. 24 – Summary report
Partial
s 47C(1) – deliberative
on stakeholder consultation for DC2020
Release
material
25
13/12/2019
1 page
R1242942019 - Draft summary report on agency
Partial
s 22(1)(a)(ii) – irrelevant
consultations, 13 December 2019
Release
/out of scope
25.1
13/12/2019
13 Pages
Attachment to Document No. 25 – DRAFT Summary
Full Release
report on stakeholder consultation for DC2020
26
21/11/2019
1 email
R1166942019 - Summary of agency feedback as of
Partial
s 22(1)(a)(ii) – irrelevant
20 November 2019
Release
/out of scope.
s 47C(1) – deliberative
material.
27
04/02/2020
2 pages
Attachment to document No. 23.1 – Roundtable
Full exemption
s 47C(1) – deliberative
Comments/
consultation with agencies slides – comments on
material.
attachment to
draft presentation.
Document 23.1
Document
created by
National Archives
(s 17 of the FOI
Act) to capture
comments on the
draft presentation
that were
otherwise not
visible when
converted to PDF.
ATTACHMENT B – RELEVANT LEGISLATION
Section 22 - Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt
document; or
(ii) that to grant a request for access to a document would disclose information that would
reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that
the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of
the work involved in deciding on and making those deletions and the resources available for
that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation
by the agency or Minister with the applicant, that the applicant would not wish to have access to
such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act—that the matter
deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole
of the document unless the applicant requests the agency or Minister to furnish to him or her a
notice in writing in accordance with that section.
Section 47C Public interest conditional exemptions—deliberative processes General rule (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 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.
Exceptions 2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of scientific or
technical experts, whether employed within an agency or not, including reports expressing the
opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established within an
agency;
(c) the record of, or a formal statement of the reasons
ATTACHMENT C – REVIEW RIGHTS
Your rights to seek review of a decision made under the
Freedom of Information Act 1982
If you do not agree with this decision, you may choose to exercise your review rights in the following
ways:
• Request the National Archives of Australia to conduct an internal review of the decision. If you
disagree with the National Archives of Australia’s internal review decision, you may then apply to
the Office of the Australian Information Commissioner (OAIC) for a review of that decision; or
• Apply directly to the Office of the Australian Information Commissioner (OAIC) for a review of the
decision. However, we do encourage you to seek internal review as a first step as it may provide
a more rapid resolution for your concerns. If you are dissatisfied with the Information
Commissioner’s decision, you may apply to the Administrative Appeals Tribunal for a review of
the Commissioner’s decision.
INTERNAL REVIEW OF DECISION BY THE NATIONAL ARCHIVES OF AUSTRALIA (NATIONAL ARCHIVES)
Pursuant to section 54 of the FOI Act, you have the right to apply to the Archives for an internal review of
the decision. A different officer from the one who made the original decision will conduct the review. The
reviewer will make a fresh decision.
If the decision has been made by the Director-General of the Archives, you do not have the option to
request an internal review under the FOI Act. You will need to apply for a review of the decision by the
Information Commissioner (see below).
You do not have to complete a special form in order to request an internal review. However, your
application for an internal review must be made in writing, and lodged within 30 days after the day on
which you are notified of the decision. It is desirable (but not essential) that you outline the reasons why
you are dissatisfied with the decision in your application for internal review. There is no cost attached to
an application for internal review.
An application for internal review should be directed to:
FOI Coordination Officer
National Archives of Australia
PO Box 4924
Kingston ACT 2604
Email:
xxx@xxx.xxx.xx REVIEW OF DECISION BY THE INFORMATION COMMISSIONER
The Information Commissioner is an independent office holder who is authorised to review decisions of
agencies and Ministers made under the FOI Act.
You do not have to request an internal review of a decision made under the FOI Act before making an
application for review to the Information Commissioner (but you may do so if you wish).
There is no cost associated with making an application for review by the Information Commissioner.
If you are requesting a review of a decision to refuse access to documents, to impose a charge or to
refuse to amend a document, you must make an application in writing, to the Information Commissioner,
within 60 days of being notified of the decision.
An application for review by the Information Commissioner can be lodged online, via email, post or in
person. An application for review by the Information Commissioner can be submitted by:
Post: Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001
Fax:
02 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
Your application should include a copy of the decision to which your application relates. You should also
set out the reasons why you disagree with the decision.
After reviewing a decision, the Information Commissioner must do one of the following:
•
set the decision aside and substitute his own decision for that of the decision under review;
•
affirm the decision, or
•
vary the decision.
Further information about the Information Commissioner’s review is available at
www.oaic.gov.au. REVIEW OF DECISION BY THE ADMINISTRATIVE APPEALS TRIBUNAL (AAT)
The AAT is an independent body authorised to review certain decisions on their merits and, where the
AAT decides it is appropriate, to substitute its own decision for that of the decision under review.
If you are not satisfied with the decision of the Information Commissioner, you are entitled to make an
application to the AAT for a review of that decision. An application for review must be in writing and
lodged within 28 days of being notified of the Commissioner’s decision. If you have good reason for not
meeting this timeframe, you can write to the AAT and request an extension of time in which to lodge your
application. Your request for an extension should set out the reasons why the application was not made
within the 28 day period.
An application fee may apply if you are requesting a review of a FOI decision as listed in section 22 of the
Administrative Appeals Tribunal Regulation 2015. Further information is available from the AAT’s
website
www.aat.gov.au. An application to the AAT for a review of the Information Commissioner’s decision can be made using an
online form available from the AAT’s websit
e http://www.aat.gov.au/applying-for-a-review or should be
directed to:
Administrative Appeals Tribunal
GPO Box 9955
(in your capital city)
FURTHER QUESTIONS
If you have any questions about your review rights, please contact FOI Coordination Officer at
xxx@xxx.xxx.xx.
Document Outline
