FOI 20 40 Notice of Decision.pdf

FOI 20-40
24 July 2020
Phillip Sweeney
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
NOTICE OF DECISION MADE UNDER SECTION 23 OF THE FREEDOM OF
INFORMATION ACT 1982 (CTH) (FOI ACT) WITH REASONS FOR DECISION PROVIDED
UNDER SECTION 26
Applicant:
Phillip Sweeney
Decision-maker:
Joanne Li, an authorised officer of the Australian Prudential
Regulation Authority (APRA) for the purposes of subsection
23(1) of the FOI Act.
FOI Request:
“The document I seek is a copy of a document that was prepared
by EY Auditor David Jewell for the MLC Super Fund for 2018-
2019 which would have a title similar to "Independent Auditor's
report  on  APRA  reporting  forms  and  Reasonable  Assurance
report on compliance".
Part  (A)  May  a  have  a  title  similar  to  "APRA  reporting  forms
required under reporting standards SPS 310"
Part (B) May have a title similar to "Compliance".”
(FOI request).
My decision:
Refuse  access  to  the  relevant  document  based  on  the
reasons outlined in this Notice of Decision.
MATERIAL FACTS
1.
On 27 June 2020, you made the FOI request by email under the FOI Act.
2.
On 29 June 2020, APRA acknowledged by email, receipt of the FOI request.

EVIDENCE AND MATERIAL RELIED ON
3.
In making my decision, I have relied on the following evidence and material:
a.
the Applicant’s request received by APRA on 27 June 2020;
b.
acknowledgment email from FOI Officer to the Applicant dated 29 June 2020;
c.
correspondence between APRA staff between 3-8 July 2020;
d.
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
e.
relevant sections of the FOI Act; and
f.
guidelines issued by the Office of the Australian Information Commissioner (OAIC)
to date (FOI Guidelines).
4. APRA has conducted all reasonable searches of its records and identified one document
relevant to the FOI request (relevant document).
REASONS
5. I have decided to refuse access to the relevant document under section 38 of the FOI Act
and section 56 of the APRA Act. My reasons for the refusal are as follows:
Secrecy Provisions
6.
I have taken the following approach in applying section 38 of the FOI Act and section 56
of the APRA Act:
i.
under section 38 of the FOI Act, a document is exempt if disclosure is prohibited
under  a  provision  of  an  enactment  and  section  38  expressly  applies  to  that
provision;
ii.
subsection 56(11) of the APRA Act expressly applies section 38 of the FOI Act so
that  any  document  that  is  a  ‘protected  document’  or  contains  ‘protected
information’ within the meaning of subsection 56(1) of the APRA Act is also an
exempt document under section 38 of the FOI Act;
iii.
under section 56(2) of the APRA Act it is an offence to directly or indirectly disclose
protected documents and/or protected information unless a specified exemption
applies. This offence provision is binding on me as an APRA staff member. The
offence is punishable by up to two years imprisonment;
iv.
a  ‘protected  document’  is  defined  in  section  56(1)  of  the  APRA  Act  to  include
documents given or produced under or for the purposes of a prudential regulation
framework  law,  and  containing  information  relating  to  the  affairs  of  a  financial
sector entity. The Superannuation Industry (Supervision) Act 1993 is a prudential
regulation  framework  law.  The  relevant  document  was  given  or  produced  and
disclosed  or  obtained  under,  or  for  the  purposes  of,  these  prudential  regulation
framework  laws.  Therefore,  the  document  is  a  protected  document  unless
otherwise publicly available;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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v.
‘protected  information’  is  defined  in  section  56(1)  of  the  APRA  Act  to  include
information  disclosed  or  obtained  under  or  for  the  purposes  of  a  prudential
regulation framework law, and relating to the affairs of a financial sector entity. For
the  same  reasons  set  out  in  paragraph  (iv)  above,  information  contained  in  the
document is protected, unless otherwise publicly available. The information in the
document is protected information, unless they are otherwise publicly available;
and;
vi.
the information and the document is not otherwise publicly available.
7.
I  am  satisfied  that  the  document  is  a  protected  document,  and  contains  protected
information as defined in  subsection 56(1) of the APRA Act and that the document is
consequently exempt under section 38 of the FOI Act.
8.
An extract of section 38 of the FOI Act and section 56 of the APRA Act is attached to
these reasons.
RIGHTS OF REVIEW
Application for Internal Review of Decision
9.
Under section 54 of the FOI Act, you have the right to apply for an internal review of the
decision if you disagree with my decision. If you make an application for review, another
officer of APRA will be appointed to conduct the review and make a fresh decision on
the merits of the case.
10.
Under section 54B of the FOI Act, you must apply in writing for a review of the decision
within 30 days after the day the decision has been notified to you.
11.
You  do  not  have  to  pay  any  other  fees  or  processing  charges  for  an  internal  review,
except for providing access to further material in the document released as a result of
the review (for example, photocopying, inspection, etc).
12.
No  particular  form  is  required  to  apply  for  review,  although  it  is  desirable  (but  not
essential),  to  set  out  in  the  application,  the  grounds  on  which  you  consider  that  the
decision should be reviewed.
13.
Application for an internal review of the decision should be addressed to:
FOI Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(02) 9210 3411
14.
If you make an application for internal review and we do not make a decision within 30
days  of  receiving  the  application,  the  agency  is  deemed  to  have  affirmed  the  original
decision. However, under section 54D of the FOI Act, APRA may apply in writing to the
Information Commissioner for further time to consider the internal review.
Application for review by the Information Commissioner
15.
Under  section  54L  of  the  FOI  Act,  you  have  the  right  to  apply  to  the  Information
Commissioner for a review of the original decision or a review of a decision made on
review.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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16.
Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the original decision or the decision made on internal
review.
17.
An  application  for  review  by  the  Information  Commissioner  may  be  lodged  in  the
following ways:
Online
Complete and lodge the online review form at:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/
Post
Director of FOI Dispute Resolution
GPO Box 5218, Sydney NSW 2001
Email
xxxxx@xxxx.xxx.xx
Facsimile
(02) 9284 9666
Delivered in person
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
Application for review by Administrative Appeals Tribunal
18.
If the decision on review by the Information Commissioner is not to grant access to all
of  the  documents  within  your  request,  you  would  be  entitled  to  seek  review  of  that
decision by the AAT.
19.
The AAT is an independent review body with the power to make a fresh decision. An
application to the AAT for a review of an FOI decision does not attract a fee. The AAT
cannot  award  costs  either  in  your  favour  or  against  you,  although  it  may  in  some
circumstances  recommend  payment  by  the  Attorney-General  of  some  or  all  of  your
costs. Further information is available from the AAT on 1300 366 700.
Complaints to the Information Commissioner
20.
You  may  complain  to  the  Information  Commissioner  concerning  action  taken  by  this
agency in  the  exercise  of  powers  or  the  performance  of  functions  under  the  FOI Act.
There is no fee for making a complaint. The Commissioner will conduct an independent
investigation of your complaint.
21.
You may complain to the Information Commissioner either orally or in writing, by any of
the methods outlined above, or by telephone, on 1300 363 992.
Joanne Li
FOI Officer
Australian Prudential Regulation Authority
Date:  24 July 2020
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FREEDOM OF INFORMATION ACT 1982
38 Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is
prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by
that provision, or by another provision of that or any other enactment.
(1A) A person’s right of access to a document under section 11 or 22 is not affected
merely because the document is an exempt document under subsection (1) of
this section if disclosure of the document, or information contained in the
document, to that person is not prohibited by the enactment concerned or any
other enactment.
(2) Subject to subsection (3), if a person requests access to a document, this
section does not apply in relation to the document so far as it contains personal
information about the person.
(3) This section applies in relation to a document so far as it contains personal
information about a person if:
(a) the person requests access to the document; and
(b) disclosure of the document, or information contained in the document, is
prohibited under section 503A of the Migration Act 1958 as affected by
section 503D of that Act.
(4) In this section:
enactment includes a Norfolk Island enactment.
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AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY ACT 1998
56  Secrecy—general obligations

(1)  In this section:
body regulated by APRA includes a body that has at any time been a body
regulated by APRA.
court includes a tribunal, authority or person having the power to require the
production of documents or the answering of questions.
financial sector entity has the same meaning as in the Financial Sector
(Collection of Data) Act 2001.
officer means:

(a)  an APRA member; or

(b)  an APRA staff member; or

(c)  any other person who, because of his or her employment, or in the course
of that employment:

(i)  has acquired protected information; or

(ii)  has had access to protected documents;

  other than an employee of the body to which the information or document
relates.
personal information has the same meaning as in the Privacy Act 1988.
produce includes permit access to.
protected document means a document given or produced (whether before or
after the commencement of this section) under, or for the purposes of, a
prudential regulation framework law and containing information relating to the
affairs of:

(a)  a financial sector entity; or

(b)  a body corporate (including a body corporate that has ceased to exist) that
has at any time been, or is, related (within the meaning of the Corporations
Act 2001) to a body regulated by APRA or to a registered entity; or

(c)  a person who has been, is, or proposes to be, a customer of a body
regulated by APRA or of a registered entity;; or

(ca)  a person in relation to whom information is, or was, required to be given
under a reporting standard made in accordance with subsection 13(4A) of
the Financial Sector (Collection of Data) Act 2001;
other than:

(d)  a document containing information that has already been lawfully made
available to the public from other sources; or

(e)  a document given or produced under, or for the purposes of, a provision of
the Superannuation Industry (Supervision) Act 1993:

(i)  administered by the Commissioner of Taxation; or

(ii)  being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes a document that is given to APRA under Part 7.5A of the
Corporations Act 2001, other than a document containing information that has
already been lawfully made available to the public from other sources.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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protected information means information disclosed or obtained (whether before
or after the commencement of this section) under, or for the purposes of, a
prudential regulation framework law and relating to the affairs of:

(a)  a financial sector entity; or

(b)  a body corporate (including a body corporate that has ceased to exist) that
has at any time been, or is, related (within the meaning of the Corporations
Act 2001) to a body regulated by APRA or to a registered entity; or

(c)  a person who has been, is, or proposes to be, a customer of a body
regulated by APRA or of a registered entity;; or

(ca)  a person in relation to whom information is, or was, required to be given
under a reporting standard made in accordance with subsection 13(4A) of
the Financial Sector (Collection of Data) Act 2001;
other than:

(d)  information that has already been lawfully made available to the public from
other sources; or

(e)  information given or produced under, or for the purposes of, a provision of
the Superannuation Industry (Supervision) Act 1993:

(i)  administered by the Commissioner of Taxation; or

(ii)   being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes information that is given to APRA under Part 7.5A of the
Corporations Act 2001, other than information that has already been lawfully
made available to the public from other sources.
registered entity means a corporation that is, or has at any time been, a
registered entity within the meaning of the Financial Sector (Collection of Data)
Act 2001.

(2)  A person who is or has been an officer is guilty of an offence if:

(a)  the person directly or indirectly:

(i)  discloses information acquired in the course of his or her duties as an
officer to any person or to a court; or

(ii)  produces a document to any person or to a court; and

(b)  the information is protected information, or the document is a protected
document; and

(c)  the disclosure or production is not in accordance with subsection (3), (4),
(5), (5AA), (5A), (5B), (5C), (6), (7), (7A), (7B) or (7C).
Penalty: Imprisonment for 2 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3)  It is not an offence if the disclosure of protected information or the production of
a protected document by a person is for the purposes of a prudential regulation
framework law.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3) (see
subsection 13.3(3) of the Criminal Code).

(4)  It is not an offence if the disclosure of protected information or the production of
a protected document by a person:

(a)  is by an employee of the person to whose affairs the information or
document relates; or

(b)  occurs after the person to whose affairs the information or document relates
has agreed in writing to the disclosure or production.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Note:
A defendant bears an evidential burden in relation to the matters in subsection (4) (see
subsection 13.3(3) of the Criminal Code).

(5)  It is not an offence if the disclosure of protected information or the production of
a protected document by a person:

(a)  occurs when the person is satisfied that the disclosure of the information, or
the production of the document, will assist a financial sector supervisory
agency, or any other agency (including foreign agencies) specified in the
regulations, to perform its functions or exercise its powers and the
disclosure or production is to that agency; or

(b)  is to another person and is approved by APRA by instrument in writing.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5) (see
subsection 13.3(3) of the Criminal Code).

(5AA)  It is not an offence if the disclosure of protected information or the production of
a protected document is made:

(a)  by an officer of an agency to which the information or document has been
disclosed or produced under paragraph (5)(a); and

(b)  for the same purpose as the information or document was so disclosed or
produced to that agency.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5AA)
(see subsection 13.3(3) of the Criminal Code).

(5A)  It is not an offence if the production by a person of a document that was given to
APRA under section 9 or 13 of the Financial Sector (Collection of Data) Act 2001
is to the Australian Statistician for the purposes of the Census and Statistics Act
1905.
Note:
A defendant bears an evidential burden in relation to matters in subsection (5A) (see
subsection 13.3(3) of the Criminal Code).

(5B)  It is not an offence if the production by a person of a document that was given to
APRA under section 9 or 13 of the Financial Sector (Collection of Data) Act 2001
is to:

(a)  the Reserve Bank of Australia; or

(b)  another prescribed authority.
Note:
A defendant bears an evidential burden in relation to matters in subsection (5B) (see
subsection 13.3(3) of the Criminal Code).

(5C)  If:

(a)  a document is a reporting document given to APRA under section 13 of the
Financial Sector (Collection of Data) Act 2001; and

(b)  either:

(i)  a determination has been made under section 57 that the document
does not, or documents of that kind do not, contain confidential
information; or

(ii)  a determination has been made under section 57 that a specified part
of the document, or of documents of that kind, does not contain
confidential information;
it is not an offence to disclose the document or that part of the document, or any
information contained in the document or that part of the document, to any
person (including by making the document, the part of the document or the
information available on APRA’s website).

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(6)  It is not an offence if the disclosure of protected information or the production of
a protected document is to:

(a)  an APRA member; or

(b)  an APRA staff member;
for the purposes of the performance of APRA’s functions, or the exercise of
APRA’s powers, under a law of the Commonwealth or of a State or a Territory.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6) (see
subsection 13.3(3) of the Criminal Code).

(6A)  It is not an offence if the disclosure of protected information or the production of
a protected document is to:

(a)  an auditor who has provided, or is providing, professional services to a
general insurer, authorised NOHC or a subsidiary of a general insurer or
authorised NOHC; or

(b)  an actuary who has provided, or is providing, professional services to a
general insurer, authorised NOHC or a subsidiary of a general insurer or
authorised NOHC;
and the disclosure is for the purposes of the performance of APRA’s functions, or
the exercise of APRA’s powers, under a law of the Commonwealth or of a State
or Territory.

(7)  It is not an offence if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is prepared so that information relating to any particular person
cannot be found out from it.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7) (see
subsection 13.3(3) of the Criminal Code).

(7A)  It is not an offence if the information, or the information contained in the
document, as the case may be, is all or any of the following:

(a)  the names of bodies that are regulated by APRA;

(b)  the addresses at which bodies referred to in paragraph (a) conduct
business;

(c)  any other information that is reasonably necessary to enable members of
the public to contact persons who perform functions in relation to bodies
referred to in paragraph (a).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7A) (see
subsection 13.3(3) of the Criminal Code).

(7B)  It is not an offence if the information, or the information contained in the
document, as the case may be, is:

(a)  a statement of APRA’s opinion as to whether or not a body regulated by
APRA is complying, or was complying at a particular time, with a particular
provision of a prudential regulation framework law; or

(b)  a description of:

(i)  court proceedings in relation to a breach or suspected breach by a
person of a provision of a prudential regulation framework law; or

(ii)  activity engaged in, or proposed to be engaged in, by APRA in relation
to such a breach or suspected breach; or

(c)  a description of action under a prudential regulation framework law that
APRA has taken or is proposing to take in relation to:

(i)  a body regulated by APRA; or

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(ii)  an individual who holds or has held a position with or in relation to such
a body.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7B) (see
subsection 13.3(3) of the Criminal Code).

(7C)  If information referred to in subsection (7A) or paragraph (7B)(a) that relates to a
body that is, or has at any time been, regulated by APRA under the
Superannuation Industry (Supervision) Act 1993 is disclosed to the Registrar of
the Australian Business Register established under section 24 of the A New Tax
System (Australian Business Number) Act 1999, the Registrar may enter the
information in that Register.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7C) (see
subsection 13.3(3) of the Criminal Code).

(8)  A person who is, or has been, an officer cannot be required to disclose to a court
any protected information, or to produce in a court a protected document, except
when it is necessary to do so for the purposes of a prudential regulation
framework law.

(9)  If a person discloses information or produces a document under this section to
another person, the first person may, at the time of the disclosure, impose
conditions to be complied with in relation to the information disclosed or the
document produced.

(10)  A person is guilty of an offence if the person fails to comply with a condition
imposed under subsection (9).
Penalty: Imprisonment for 2 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(11)  A document that:

(a)  is a protected document; or

(b)  contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
Note:
For additional rules about personal information, see the Privacy Act 1988.

(12)  A disclosure of personal information is taken to be authorised by this Act for the
purposes of paragraph 6.2(b) of Australian Privacy Principle 6 if:

(a)  the information is protected information and the disclosure is made in
accordance with any of subsections (4), (5), (5AA), (6), (7A), (7B) and (7C);
or

(b)
the information is contained in a protected document and the disclosure
is  made  by  the  production  of  the  document  in  accordance  with  any  of  those
subsections.

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