Internal review decision
Applicant:
Phillip Sweeney
Decision-maker:
Ben (person number 2355), an authorised officer of the
Australian Prudential Regulation Authority (APRA) for the
purposes of section 23(1) of the
Freedom of Information Act
1982 (‘FOI Act’).
FOI reference:
FOI 21 – 5
Decision:
Set aside the original decision and grant access to the
relevant document.
Summary
1.
On 26 July 2020 you made the following FOI request:
“The document I seek is a copy of the letter advising the trustee [of the Australia
Post Superannuation Scheme] that APRA had granted this registration number.”
2.
On 24 August 2020 APRA made the decision to refuse access to one document on the
basis of section 38 of the FOI Act (‘the original FOI decision’).
3.
On 24 August 2020 APRA received your email request for an internal review of the
original FOI decision (‘the internal review application’).
Material taken into account
4.
I relied on the following evidence and material in making my decision:
a)
the FOI request dated 26 July 2020;
b)
acknowledgment of FOI request from FOI Officer to the Applicant dated 27 July
2020;
c)
email correspondence between APRA staff between 31 July – 5 August 2020;
d)
the original FOI decision;
e)
the internal review application;
f)
memorandum from FOI Officer dated 18 September 2020;
g)
relevant sections of the FOI Act; and
h)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).
Reasons
5.
I reproduce relevant paragraphs of the original FOI decision:
“
APRA has conducted all reasonable searches of its records and identified one
document relevant to the FOI request.
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
I have taken the following approach in applying section 38 of the FOI Act and section
56 of the APRA Act:
a. 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;
b. 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;
c. 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 APRA staff members.
The offence is punishable by up to two years imprisonment;
d. 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, this
prudential regulation framework law. Therefore, the document is a protected
document unless otherwise publicly available;
e. ‘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 (d) above, information contained in
the document is protected, unless otherwise publicly available; and
f. the information and the document are not otherwise publicly available.
6.
The following statements were made in support of the internal review application:
a)
“I have made a similar request in the past for the same document except for the
name of the fund being different. I refer to my FOI request dated 13 August 2018
seeking a copy of the decision of APRA to register the MLC Super Fund.”
b)
“Lauren Willars granted access, under 11A(3) of the FOI Act and provided a copy
of the letter dated 8 June 2016 signed by Paul Tattersall, GM, Diversified
Institutions Division that confirmed to NULIS Nominees (Australia) Ltd that APRA
had granted fund registration (R1077223) to MLC Super Fund.”
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c)
“On the basis that the document I seek does not contain any protected information
and that APRA has released a near-identical document in the past I am seeking
an Internal Review of the response to this FOI request.”
7.
I considered your statements, reviewed all relevant documentation and the process that
was undertaken by the FOI Officer.
8.
I set aside the original FOI decision and grant access to the relevant document under
section 11A(3) of the FOI Act.
Rights of review
9.
Under section 54L of the FOI Act, you have the right to apply to the OAIC for a review
of my decision. The application for review by the OAIC must be made in writing within
60 days of the date of this letter, and be lodged in one of 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
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
10. More information about your review rights under the FOI Act is available here:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-10-review-by-the-
information-commissioner/
Ben (person number 2355)
FOI Officer
23 September 2020
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Schedule of relevant documents
Doc No.
Description
Method of release
1
Decision to register an RSE – Australia Post Attached
Superannuation Scheme
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FREEDOM OF INFORMATION ACT 1982 (CTH)
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an
agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access
is given has been paid.
(2) This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for
example the following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in
accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to
the document at a particular time if, at that time, the document is an exempt
document.
Note: Access may be given to an exempt document apart from under this Act, whether or not
in response to a request (see section 3A (objects—information or documents otherwise
accessible)).
(5) The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to
the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document
would, on balance, be contrary to the public interest (see section 31B (exempt
documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access
to the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to
the document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of
exempt
document in subsection 4(1).
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