ONE NATIONAL CIRCUIT
FOI
BARTON
FOI/2020/172
FREEDOM OF INFORMATION ACT 1982 (Cth)
REQUEST BY:
Trav S
DECISION BY:
Peter Rush
Assistant Secretary
Parliamentary and Government Branch
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Trav S
I refer to your email, dated 28 July 2020, to the Department of the Prime Minister and Cabinet
(the
Department), in which you made a request under the
Freedom of Information Act 1982 (Cth) (the
FOI Act) in the following terms:
On 19 April 2004, PM&C wrote to the Minister responsible for honours policy
recommending they seek the Governor-General declare service in Iraq eligible for the
Humanitarian Overseas Service Medal.
PM&C advised the Minister that:
"Following an assessment of service of service in Iraq and consultation with DFAT
and Defence, it was agreed that service in Iraq meets the criteria of the medal's
regulations and should be declared as eligible service for the medal".
We request a copy of:
1. the assessment of service in Iraq, and
2. the documents recording, or evidencing the consultations with DFAT and Defence.
On 25 August 2020, you emailed the Department to:
Please disregard the Medal's Letters Patent or governing regulations from the
request.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
Authorised decision maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the Act.
Documents in scope
Having regard to my knowledge of where documents potentially relevant to your FOI request
would be held, I arranged for a search of the Department’s record management systems to
identify potentially relevant files and a further search of those files for any relevant
documents.
As a result of these searches, the Department identified three documents relevant to the terms
of the FOI request (the
requested documents).
Decision
I have decided to:
• grant access, in part, to Document 1, on the basis it contains information that is:
o conditionally exempt under sections 47C (deliberative material) and 47E(d)
(operations of an agency) of the FOI Act, and its disclosure would be contrary
to the public interest;
• grant access, in part, to Document 2, on the basis it contains information that is:
o conditionally exempt under sections 47C, 47E(d), and 47F(1) (personal
information) of the FOI Act, and its disclosure would be contrary to the public
interest; and
• refuse access in full to Document 3, on the basis that it contains information that is
conditionally exempt under sections 47C and 47E(d), and its disclosure would, on
balance, be contrary to the public interest.
Further information is in the Schedule at
Attachment A.
In making my decision, I have considered the following:
•
the terms of your request;
•
the requested documents;
•
consultation response from the Department of Foreign Affairs and Trade;
•
the FOI Act; and
•
The Guidelines made by the Australian Information Commissioner issued under
section 93A of the FOI Act (the
FOI Guidelines).
Charges
On 24 August 2020, the Department issued you with a notice of the preliminary charge (in the
amount of $135.65) to process your request.
On 25 August 2020, the Department received your payment of a deposit (in the amount of
$33.90) towards the charge.
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link to page 3 link to page 3
In accordance with the procedures specified in the
Freedom of Information (Charges)
Regulations 2019 for imposing charges on an applicant, I have fixed the charge at $135.65 as
I consider that this is a correct reflection of the actual time taken to process your request.
Accordingly, you are required to pay the remainder of the charge before access is granted to
the documents.
Reasons for the decision
Section 47C of the FOI Act – deliberative processes
Section 47C of the FOI Act provides that:
(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.
The FOI Guidelines state that:
‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’
and ‘consultation and deliberation’ that is recorded or reflected in a document. There
is no reason generally to limit the ordinary meanings given to the words ‘opinion,
advice or recommendation, consultation or deliberation’.1
‘Deliberative process’ generally refers to 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 or a proposal, a particular
decision or a course of action.’2
The requested documents contain deliberative matter regarding the assessment of whether
emergency humanitarian service in Iraq meets the criteria for a clasp to the
Humanitarian
Overseas Service Medal, and were prepared for the purpose of the deliberative processes
involved in the functions of the Department.
I am satisfied that the deliberative matter contained within the requested documents are
conditionally exempt under section 47C of the FOI Act.
Do the documents contain ‘purely factual material’?
Section 47C(2) of the FOI Act provides that deliberative matter does not include purely
factual material.
1 FOI Guidelines, [6.63], footnotes omitted.
2 FOI Guidelines, [6.59], footnotes omitted.
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The FOI Guidelines provide that ‘purely factual material’ does not extend to factual material
that is an integral part of the deliberative content and purpose of a document, or is embedded
in or intertwined with the deliberative content such that it is impractical to excise it.
I am satisfied that parts of the requested documents contain information that meets the
definition of “deliberative matter”. I am also satisfied that to the extent those parts of the
document contain factual material, that factual material is an integral part of the deliberative
content and purpose of the documents, or is embedded in, or intertwined with, the deliberative
content, such that it is impractical to excise it. I therefore find that those parts do not contain
‘purely factual material’.
I am satisfied that parts of the requested documents meets the definition of “deliberative
matter”. Accordingly, I am satisfied that those parts of the requested documents are
conditionally exempt under section 47C of the FOI Act.
Section 47E(d) of the FOI Act – certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
I am satisfied that parts of the requested documents contain information which, if disclosed,
would or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of the Department.
I consider that release of material of this nature could reasonably be expected to have an
adverse effect on the relevant agency’s ability to effectively provide advice to other
Australian agencies regarding Australian interests overseas and in Australia’s national
interest. It is essential to the core functions of the relevant agency to ensure the integrity of
these internal procedures and methods.
Accordingly, I am satisfied those parts of the requested documents are conditionally exempt
under section 47E(d) of the FOI Act.
Section 47F(1) of the FOI Act – personal information
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about any
person (including a deceased person).
‘Personal information’ under the FOI Act has the same meaning as in the
Privacy Act 1988 and means:
… 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 a material form or not.
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Section 47F(2) of the FOI Act states that in determining whether disclosure of the document
would involve the unreasonable disclosure of personal information, an agency must have
regard to the following matters:
• 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; and
• any other matters that the agency or Minister considers relevant.
Paragraph 6.142 of the FOI Guidelines state that key factors for determining whether
disclosure is unreasonable include:
• the author of the document is identifiable;
• the documents contain third party personal information;
• release of the documents would cause stress on the third party; and
• no public purpose would be achieved through release.
Document 2 contains the personal information of an individual. I have reviewed the personal
information, and I am satisfied that those parts are conditionally exempt from release, under
section 47F(1) of the FOI Act, as their disclosure would involve the unreasonable disclosure
of personal information.
Public Interest Test
Section 11A(5) of the FOI Act provides that a conditionally exempt document must
nevertheless be disclosed to the applicant unless its disclosure would, on balance, be contrary
to the public interest.
In determining whether disclosure would be contrary to the public interest, the FOI Act
requires a decision-maker to balance the public interest factors in favour of disclosure against
the factors against disclosure.
Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not
take into account when deciding whether access to the document would be contrary to the
public interest:
a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in confidence in the Commonwealth Government;
b) access to the document could result in any person misinterpreting or
misunderstanding the document;
c) the author of the documents was (or is) of high seniority in the agency to which the
request for access to the document was made; or
d) access to the document could result in confusion or unnecessary debate.
I have not taken any of the above factors into account in making my decision.
Factors in favour of disclosure
In my view, the particular factor in favour of disclosure in this case that disclosure would:
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a) promote the objects of the FOI Act.
Factors against disclosure
The FOI Act does not provide for any public interest factors weighing against disclosure that
decision makers may consider. The FOI Guidelines contain a non-exhaustive list of factors
that may, depending on the circumstances of the case, be against disclosure.
I consider the following factors favour non-disclosure of that material:
• disclosure would affect the ability of the Department to provide comprehensive advice
to Government on one of the Australian honours system’s significant medals, namely
the HOSM;
• disclosure could inhibit the ability of the Department to undertake inter-departmental
consultations, on the basis that the level of detail contained in future consultations may
be diminished, if there were a risk of such deliberations and discussions being publicly
released; and
• disclosure of this material could reasonably be expected to prejudice the internal
processes and methods of the department and other agencies, by providing detail into
the discussions and deliberations that are undertaken as part of the provision of policy
advice with those government agencies and vice versa.
Balancing the public interest
After careful consideration of all relevant factors I have decided that the factors in favour of
disclosure are outweighed by the factors against disclosure. Accordingly, I have found that
release of the conditionally exempt material contained in the requested documents would, on
balance, be contrary to the public interest.
Deletion of exempt or irrelevant information (section 22 of the FOI Act)
In accordance with the Department’s policy as advised to you on 10 August 2020, I find that
the following information in the requested documents, wherever it occurs, is irrelevant to the
FOI request:
• any person’s signature;
• the names and contact details of Australian Public Service officers not in the Senior
Executive Service (SES);
• mobile or direct numbers of SES officers; and
• the names and contact details of Ministerial staff at a level below Chief of Staff.
In accordance with section 22 of the FOI Act, I have excluded the parts of the requested
documents that contain the above details, where relevant.
Review rights
Information about your rights of review can be found on the website of the Office of the
Australian Information Commissioner a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/.
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Complaint rights
Information about you complaint rights can be found on the web site of the Office of the
Australian Information Commissioner a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/. Yours sincerely
Peter Rush
Assistant Secretary
Parliamentary and Government Branch
14 September 2020
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Document Outline
