Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Phil ip Sweeney
Fax: +61 1300 729 000
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
www.asic.gov.au
Our Reference:
FOI 110-2020
31 August 2020
Dear Mr Sweeney
Freedom of Information Request No. 110-2020
Notice of Access Decision
I refer to your five (5) requests for access to documents made under the
Freedom of
Information Act 1982 (
FOI Act) received between 28 June 2020 and 30 June 2020 by
which you requested access to documents in the possession of the Australian Securities
and Investments Commission (
ASIC).
Revised request and consultation
On 10 July 2020, I sent you a notice under section 24AB of the FOI Act. The notice
advised you that the five FOI requests may be treated as a single request under section
24(2) of the FOI Act because the subject matter of the requests were the same or
substantial y the same. The notice also advised that a practical refusal reason existed
in relation to your request because it did not provide information reasonably necessary
to al ow me to identify the documents you were seeking. On 10 July 2020, you
responded to the notice with a revision to your request and withdrew part 5 of your
request, leaving four (4) clustered requests.
On 20 July 2020, I sent you a second notice under section 24AB of the FOI Act. The
second notice advised that additional practical refusal reasons existed in relation to
your request because your request did not provide information reasonably necessary
to al ow me to identify the documents sought by your request. You responded to this
notice on 21 July 2020.
Your request is described in the
attached schedule of requests.
Decision and reasons for decision
I am the authorised decision-maker for the purposes of section 23 of the Act and this
letter gives notice of my decision.
I have identified
4 documents that is responsive to your request. The documents are
described in the schedule
attached to this letter.
I advise that I have decided to grant access in ful to al the documents in the schedule
other than document 4 (the
exempt document).
2
I have taken the fol owing material into account in making my decision:
• the content of the documents that fall within the scope of your request;
• the FOI Act (specifical y sections 11A, 22 and 47F);
• the guidelines (
FOI Guidelines) issued by the Office of the Australian Information
Commissioner (
OAIC) under section 93A of the FOI Act; and
• the views of a third party consulted by ASIC under section 27 of the FOI Act.
My reasons for refusing access to the exempt document is set out in this letter.
In your request and your emails dated 10 July 2020 and 21 July 2020, you provide a
series of assertions of opinion and general commentary relating to your previous
dealings with ASIC. I do not consider any of these statements as relevant to the
determination of your request. This type of information is not required under the FOI Act
and impedes on ASIC’s processing of your request efficiently. Please see the Office of
the Information Commissioner’s
how to make an FOI request webpage for further
information.
However, considering my above comments, I have been mindful not to take a narrow
approach to the construction of your FOI request. As such, I advise that I have identified
the documents listed in the
attached schedule based exclusively on the authors,
timeframes and dates you have provided. The documents were identified by searching
ASIC case management systems and ASIC archives.
Section 22 – Access to edited copies
Section 22(2) of the FOI Act requires an agency to give an applicant access to an
edited copy of a document with the exempt matter deleted if it is reasonably
practicable for the agency to prepare an edited copy, having regard to:
• the nature and extent of the modifications (section 22(1)(c)(i)); and
• the resources available to modify the document (section 22(1)(c)(i )).
It is my view that it would not be reasonably practicable to prepare an edited copy of
document 4
. Doing so would leave only a skeleton of the document that would convey
little of its content or substance.1 Applying these considerations, I am of the view that
deletions to the document would be so extensive that the remaining document would
be of little or no value, as the resulting editing would render the document unintelligible.
Section 47F – Public interest conditional exemptions – personal privacy
Section 47F provides that a document is conditional y exempt if its disclosure under this
Act would involve the unreasonable disclosure of personal information about any
person.
“Personal information” is defined in the FOI Act by reference to section 6 of the
Privacy
Act 1988 as:
‘
information or an opinion about an identified individual, or an individual who
is reasonably identifiable:
(a) Whether the information or opinion is true or not;
and (b) Whether the information or opinion is recorded in material form or not.’
1 FOI Guidelines [3.98]
3
In determining if disclosure would involve the unreasonable disclosure of personal
information, an agency must consider the fol owing:
• the extent to which the information is well known;
• 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;
• the availability of the information from publicly accessible sources;
• any other matters that the agency considers relevant
The subject of the exempt document did not respond to ASIC’s consultation which
enquired whether he consented to the release of his information contained within
document 4. Document 4 contains the name, and/or employment details of the third
party. The information was provided to ASIC for a specific purpose, being the
exchange of correspondence with ASIC. I am satisfied that this information is personal
information. The information is not available in the public domain or widely known and
I consider that the unrestrained release of this information would, in the circumstances
be unreasonable.
I am satisfied that it would be unreasonable to disclose the personal information in the
document for the fol owing reasons:
• the information is not well known or available from publicly accessible sources;
• disclosure is unlikely to advance the public interest in government transparency
and integrity;
• disclosure of the information could reasonably be expected to cause detriment
to the persons to whom the information relates; and
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
I have also considered the current relevance of the information and the outcome of
ASIC inquiries. I have determined that disclosure of the personal information would be
unreasonable.
I find therefore that document 4 is conditional y exempt under section 47F of the FOI
Act.
This is a conditional exemption subject to the public interest test.
Public Interest Test
The FOI Act provides that access must be given to a conditional y exempt document
unless access would be contrary to the public interest.
As required by section 11A of the FOI Act I have considered whether release of the
conditional y exempt material in the document
would, on balance, be contrary to the
public interest. As I have decided that the relevant material is conditional y exempt
under section 47F, I am required to consider whether disclosure would be contrary to
public interest.
In particular, I have had regard to the fol owing factors outlined in section 11B(3) as
being factors favouring access to the document in the public interest:
1. Access to the documents would promote the objects of the FOI Act (including
al matters set out in sections 3 and 3A).
4
2. Access to the documents would inform debate on a matter of public
importance.
3. Access to the documents would promote effective oversight of public
expenditure.
4. Access to the documents would al ow a person to access his or her personal
information.
Of the above factors I find factor 1 to be relevant to document 4. The objects of the
FOI Act include providing for a right of access to information in the possession of
Commonwealth government agencies and promoting accountability and
transparency in government decision making. In this case, the release of the
document supports the objects of the FOI Act by making available information which
is held by ASIC.
I have also considered the fol owing factors against disclosure and that disclosure
could reasonably be expected to:
• to prejudice the protection of an individual’s right to privacy (47F); and
• harm the interests of an individual or group of individuals (47F).
Determining whether disclosure would be contrary to the public interest requires that I
weigh the relevant factors to determine where the public interest lies.
I have not taken into account the factors outlined in s 11B(4) of the FOI Act as factors
that are irrelevant in deciding whether access to the documents would be contrary to
the public interest.
In my view, the factors against disclosure of the documents exempted under section
47F outweigh the factors in favour of disclosure. Whilst the release of the material in ful
would promote the objects of the FOI Act by making information held by ASIC
available to the public, release in this instance would come at the expense of an
individual’s personal privacy. I consider that in this matter the public interest is weighted
toward the fair treatment of the individual and the protection of his right to privacy.
Accordingly, I am satisfied that the material is exempt under section 47F of the FOI Act.
Section 24A - Requests may be refused if documents cannot be found, do not exist or
have not been received
Your request (at request 3) also seeks access to “
a copy of the original Trust Deed made
on the 23 December 1913 in the State of South Australia when the original sponsoring
employer was Elder Smith & Co Ltd”. I note that ASIC has previously considered FOI
requests received from you on, but not limited to, 25 January 2013 (ref. 4318/13), 16 July
2017 (ref. 26485/17) and 6 August 2019 (ref. FOI 158-2019) requesting the same
document.
Section 24A of the Act provides that requests may be refused if documents cannot be
found, do not exist or have not been received. Section 24A states:
(1) An agency or Minister may refuse a request for access to a document if:
(a) al reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
5
The right of access under section 11 of the FOI Act is to a ‘document of an agency.’
This is defined in the section 4 of the FOI Act as:
“a document is
a document of an agency if:
(a) the
document is in the possession of the
agency, whether created
in the
agency or received in the
agency; or
(b) in order to comply with section 6C, the
agency has taken
contractual measures to ensure that it receives the
document.”
The document is not a document created by ASIC and is not in the possession of ASIC.
Section 6C of the FOI Act is not relevant to this document.
I have searched our electronic records, including ASIC’s case management systems
and made enquiries with relevant staff and confirm that ASIC does not have the
document, or the document does not exist. I am satisfied that al reasonable steps have
been taken to locate documents relevant to your FOI request.
Review rights
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this
decision, apply in writing to ASIC for a review of my decision by another ASIC officer
under section 54B of the FOI Act. This request should be addressed to me or to the
Senior Manager, Freedom of Information, GPO Box 9827, Brisbane QLD 4001 or by
email to
xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified of this
decision, apply in writing to the Office of the Australian Information Commissioner
(OAIC) for a review of my decision under section 54N of the FOI Act. You may
contact the OAIC by post at GPO Box 5218 Sydney NSW 2001, by email at
xxxxx@xxxx.xxx.xx or by telephone on 1300 363 992.
Right to complain
3. You may lodge a complaint with the OAIC in relation to the conduct of ASIC in the
handling of this request. You may contact the OAIC as described above.
If you have any questions, please contact me a
t xxxxxxx.xxxx@xxxx.xxx.xx.
Yours sincerely
Krystal Fung
Escalated Matters & Government
Assessment & Intelligence
6
Schedule of Phillip Sweeney requests 28 June 2020 to 30 June 2020
Request
Date of Request
Documents sought in Request
No.
1.
28 June 2020
“…The document I seek is a copy of the letter dated
around mid-2010 in which Warren Day reported on
the "investigation" into his own "Straw Man"
complaint.”
2.
29 June 2020
“…The document I seek is a copy of the response
sent by Ms Tenaski to former Senator John Wil iams
sometime after 6 January 2014.”
3.
29 June 2020
“…The first document I seek is a copy of the
response sent by Warren Day to former Senator
John Wil iams sometime after 18 July 2013.
I am also seeking a copy of the original Trust Deed
made on the 23 December 1913 in the State of
South Australia when the original sponsoring
employer was Elder Smith & Co Ltd that should have
been obtained by Warren Day in 2013 or at a later
date by ASIC.”
4.
30 June 2020
“…The document I seek is a copy of the response
sent by Gerard Fitzpatrick to former Senator John
Wil iams sometime after 28 January 2014 where no
mention of subsection 1017C(5) was made.”
Schedule of Documents
No. Description of document
Date
Decision
Relevant
on access Section(s)
1.
ASIC letter to Phil ip Sweeney
2 July 2010
Release
2.
ASIC letter to Senator John 6 August 2013
Release
Wil iams
3.
ASIC letter to Senator John 17 January 2014
Release
Wil iams
4.
ASIC letter to Senator John 14 February 2014
Exempt in 47F
Wil iams
ful
