John Smith
Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request No. FOI 200603
Decision on Access
I refer to your request of 22 June 2020 to the Department of Agriculture, Water and the
Environment (the
Department) under the
Freedom of Information Act 1982 (the
FOI Act). Your
request seeks access to:
I seek to obtain a copy of all heritage assessments that have been made by the department,
in association with the Shenhua open cut coal mine in NSW.
Additionally, I seek to obtain copies of all documents that contain written reasons by the
Environment Minister Sussan Ley, for all approvals that have been made by her in
association with this site; since she has taken office.
Please exclude written reasons for approvals, unless those approvals were made by Sussan
Ley as minister or a delegate of the minister.
Authority
I am authorised by the Secretary of the Department under section 23 of the FOI Act to make a
decision in relation to your request.
Decision
The Department has identified two documents relevant to the scope of your request. I have
decided to:
•
grant access to Document 1 in part, as it contains material that I consider exempt
pursuant to sections 45 and 47F of the FOI Act; and
•
grant access to Document 2
in full.
A schedule describing these documents and my decision in respect of each is at
ATTACHMENT A.
ATTACHMENT B contains information regarding your review rights, should you wish to seek
review of my decision.
The documents are at
ATTACHMENT C.
GPO Box 858 Canberra ACT 2601 • Telephone 02 6274 1111 • Facsimile 02 6274 1666
www.awe.gov.au
Material considered in making my decision
I had regard to:
•
the scope of the FOI request
•
the content of the documents subject to your request
•
the relevant provisions in the FOI Act
•
advice from subject matter experts within the Department
•
the
Guidelines issued by the Australian Information Commissioner under s93A of the
Freedom of Information Act 1982 (the
FOI Guidelines).
Reasons for decision
Material exempted under section 45 Material obtained in confidence
Section 45 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 a breach
of confidence.
Document 1 in part, consists of culturally sensitive material that was provided by a third party to
the Department on the agreement that the material be kept confidential. To determine whether
its disclosure would found an action in confidence (attracting an exemption under section 45), it
must meet the following criteria (
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic)
(1987) 14 FCR 434 [443]):
a) the information must be specifically identified;
b) the information must have the necessary quality of confidence about it;
c) the information must have been communicated and received on the basis of a mutual
understanding of confidence;
d) the information must have been disclosed or been threatened to be disclosed without
authority; and
e) the unauthorised disclosure has or will cause the individual to suffer detriment.
Against this criteria, I consider:
a) The information is specifically identified, being the material that forms Document 1 in
part.
b) The information has the necessary quality of confidence as it was communicated only to
a known or limited group, namely the Department. The information is not common
knowledge or otherwise in the public domain and the quality of confidentiality has not
been lost over time.
c) The information was communicated and received on the basis of a mutual
understanding of confidence. The Department agreed that the material within the
documents was to be treated with confidentiality.
d) The provider of the material has not authorised the Department to disclose the document
to third parties.
e) The provider of the information will suffer detriment if the document were to be released,
as their relationship of trust with third parties, to whom the material pertains to, will be
damaged.
2
I have therefore made a decision to exempt Document 1, in part, under section 45 of the
FOI Act.
Material exempted under section 47F
Personal privacy
Section 47F(1) of the FOI Act provides that where the disclosure of document would result in an
unreasonable disclosure of personal information about any person (including a deceased
person), that document is conditionally exempt. The conditionally exempt document may then
be withheld from release to the applicant only if giving access to it would be against the public
interest.
Unreasonable disclosure of information
Document 1 contains personal information, relevant to Indigenous communities. I am satisfied
that this information is “personal information” for the purposes of the FOI Act.
To determine whether the disclosure of this personal information was unreasonable, I had
regard to the following criteria under 47F(2) of the FOI Act:
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 I considered relevant.
Against these criteria, I consider that:
a) the information is not well known;
b) the persons are not known to be associated with the matters dealt with in the document;
and
c) the information is not available from publicly accessible sources.
Against criteria (d), and consistent with the decision in
Re Chandra and Minister for Immigration
and Ethnic Affairs [1984] AATA 437, I considered all relevant circumstances, including the
nature of the information, the purpose for which the information was obtained, the likelihood of
the information being information which the person concerned would not wish to have disclosed,
and whether the information has any current relevance.
With reference to my findings above, I consider that any disclosure of personal information of
Indigenous communities contained within Document 1 would be unreasonable, and therefore
that this personal information is conditionally exempt.
Contrary to the public interest
To determine whether access to the conditionally exempt personal information would be
contrary to the public interest, I must consider those public interest factors favouring access to
the personal information and weigh them against those public interest factors against access.
I did not consider any of the irrelevant factors set out in section 11B(4) of the FOI Act.
3
Section 11B(3) sets out the public interest factors that favour access to information:
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; and
d) allow a person to access his or her own personal information.
Against these factors, I consider that access to the personal information of Indigenous
communities contained within Document 1:
a) would promote the objects of the FOI Act in respect of providing access to information
held by the Government (promoting section 3(1)(b)) and that the information is a national
resource (section 3(3)).
However, I do not consider that this specific personal information would allow for greater
insight into Government decision making (section 3(2)(a)) or that their release would
allow for increased discussion or scrutiny of Government activities (section 3(3));
b) would not inform debate on a matter of public importance;
c) would not promote effective oversight of public expenditure; and
d) would not allow a person, being the applicant, further access to his or her own personal
information.
Paragraph 6.22 of the FOI Guidelines provides a non-exhaustive list of public interest factors
against access. Of these factors, I consider that access to the personal information of
Indigenous communities contained within Document 1 could reasonably be expected to
prejudice the protection of an individual’s right to privacy.
I also consider that releasing the personal information of Indigenous communities, would not
provide you with any further context in understanding the information that you have requested.
After considering the public interest factors favouring access and those against access, I
consider that the factors against access to outweigh those favouring access, and that access to
the personal information discussed above to be contrary the public interest.
I have therefore decided to withhold access to the conditionally exempt the personal information
of Indigenous communities contained within Document 1 pursuant to section 47F of the FOI Act.
Disclosure Log
Pursuant to section 11C of the FOI Act, the Department will publish on its website details of how
the documents at
ATTACHMENT C may be obtained within 10 days of providing you with this
decision.
4
ATTACHMENT A
FOI 200603 Schedule of Documents
No
Description
Decision
1
Statement of Reasons for a decision under section 10 of
Release in part
the Aboriginal and Torres Strait Islander Heritage
Section 45 – material obtained in confidence
Protection Act 1984, dated 26/6/2019
Section 47F – personal information of Indigenous communities
2
Statement of Reasons for a decision under section 10 of
Release in full
the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984, dated 1/07/2019
GPO Box 858 Canberra ACT 2601 • Telephone 02 6274 1111 • Facsimile 02 6274 1666
www.awe.gov.au
ATTACHMENT B
YOUR REVIEW RIGHTS
You may seek review of this primary decision either internally by the Department (internal
review), or externally by the Information Commissioner (Information Commissioner review).
Internal review
An internal review is a review of the decision conducted by a senior officer within the
Department. The reviewing officer will not be the same person whom made the primary
decision.
If you wish to seek an internal review, you must submit a written application to the Department
within 30 days after the day you are notified of this decision. Whilst there is no required form for
the written internal Review application, it is recommended that you include your reasons as to
why the primary decision should be reviewed.
The decision on the internal review will be provided to you within 30 days of the Department
receiving your application.
You can submit your written internal review application to the below addresses:
Email:
xxx@xxxxxxxxxxx.xxx.xx
Post:
FOI Contact Officer
Commercial, Information and Agriculture Legal Branch
Department of Agriculture, Water and the Environment
GPO Box 858
Canberra ACT 2601
Information Commissioner review
An Information Commissioner review is a review undertaken by the Information Commissioner
(IC). The IC will make a decision on the disclosure of the documents, giving regard to any
submissions from the Department, yourself as the applicant, and any third parties consulted as
part of this decision.
There is no statutory timeframe for a decision on an IC request.
If you wish to request a review by the IC, you must apply to the IC within 60 days after the day
you received it. Further details on how to request an Information Commissioner review can be
obtained from the Office of the Australian Information Commissioner:
Online: https://www.oaic.gov.au/freedom-of-information/foi-review-process
Post:
GPO Box 5218, Sydney NSW 2001
Fax:
02 9284 9666
Phone: 1300 363 992
Email: xxxxxxxxx@xxxx.xxx.xx
GPO Box 858 Canberra ACT 2601 • Telephone 02 6274 1111 • Facsimile 02 6274 1666
www.awe.gov.au
Document Outline
- A. Schedule of documents B. Information sheet “Your Review Rights” C. Documents subject to your request
- YOUR REVIEW RIGHTS
