LEX 68742
Our ref: LEX68742 Mr Harry Witherspoon
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Witherspoon
Freedom of Information Act 1982 – Notice of Decision
I refer to your correspondence, received by the Department of Industry, Science, Energy and Resources
(
the department) on 4 May 2021, and subsequent correspondence to clarify the scope of your request, for
access under the
Freedom of Information Act 1982 (
FOI Act) as follows:
I would like to see the email message sent by Erin Higuchi to Ben Fairless on September 7, 2020,
3:02 PM GMT+8 in which she outright defames me by asserting that I had made false and
defamatory statements in this correspondence:
https://protect-au.mimecast.com/s/eXn-CGvm0mhYYMJrtKAWTd?domain=righttoknow.org.au
Release IN FULL what was said about me as my being maligned is unfortunately still my personal
information.
FURTHER, in relation to the public interest, please note that my complaint of over 7 months ago
(above) was never addressed. It is rather telling that Erin and Ben have plenty of time and resources
to conspire, defame and censor the flabbergasted public but not the time to openly address
referenced and irrefutible facts.
Link to my complaint is here:
https://protect-au.mimecast.com/s/e4I4CJypBpCrrY8kIGgxmM?domain=righttoknow.org.au
Background
On 14 May 2021, you were advised of the need to conduct a third party consultation in relation to your
request. Subsequently, in accordance with section 15(6) of the FOI Act the time limit was extended by 30
days to allow for third party consultation until 3 July 2021.
Decision
I am an authorised decision maker under section 23 of the FOI Act.
On the outset, I have decided not to impose any charges for the processing of your request.
industry.gov.au Industry House - 10 Binara Street, Canberra City, ACT 2601
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I am satisfied that all reasonable searches have been undertaken for documents relevant to your request.
I am advised that the department has in its possession one document that is relevant to your request. This
document is described in the Schedule of Documents at
Attachment A. I have decided that the document is exempt in full, as it material which is exempt under:
section 47E(d) of the FOI Act, as disclosure would have a substantial adverse effect on the proper
and efficient conduct of the operations of an agency;
section 47F(1) of the FOI Act, as disclosure of the information would be an unreasonable disclosure
of an individual’s personal information; and
section 22 of the FOI Act, as the documents contain material that is irrelevant to your request.
The reasons for my decision are set out below, as required by section 26 of the FOI Act, in Part A of the
Annexure.
If you are dissatisfied with my decision, your review rights are set out in Part B of the Annexure.
Yours sincerely
Rebecca Lannen
General Manager
Entrepreneurs' Programme
21 June 2021
Enclosures
Annexure (Part A – Statement of Reasons and Part B – Review Rights)
Attachment A – Schedule of Documents
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Annexure
Part A – Reasons for Decision (section 26 FOI Act)
Request: Harry WITHERSPOON – 14 April 2021 (LEX 68742)
Decision Maker: Rebecca Lannen, General Manager, Entrepreneurs' Programme
1. Evidence/Material on which my findings were based
1.1
In reaching my decision, I relied on the following information and documentary evidence:
the FOI Act;
the contents of the documents described in Attachment A;
your correspondence setting out the particulars of your request;
consultation with departmental officers as to the nature of the documents;
consultation with a third party in accordance with sections 27 and 27A of the FOI Act; and
the Guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the FOI Act (
FOI Guidelines).
2. Section 22 – Deletion of irrelevant material
2.1
Under section 22 of the FOI Act, the department may delete material from documents that it
considers irrelevant to the scope of your request.
2.2
As per our correspondence of 6 May 2021, the department considers the names and contact
details of APS staff below the SES level to be irrelevant unless informed otherwise. Accordingly,
this information has been deleted under section 22 of the FOI Act.
2.3
Further, I have identified material within the documents that does not relate to the scope of your
request. This information has also been deleted as irrelevant under section 22 of the FOI Act.
3. Section 47E(d) - The Conduct of the Operations of an Agency
3.1
Subsection 47E(d) of the FOI Act permits an agency to conditionally exempt material in a
document in circumstances where:
… its disclosure under this Act would, or could reasonably be expected to, do any of the
following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
3.2
The documents contain material relating to the department's approach to the management and
processing of FOI requests, including the handling of requests made via third party platforms, as
well as advice, opinions and recommendations made by departmental officers. The release of this
information would have a substantial adverse effect on the conduct of the operations of the
department, particularly with respect to the willingness of departmental officers to provide
comprehensive and candid opinions and recommendations.
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3.3
Currently, such information is disclosed within the department on a 'need-to-know' basis only.
Therefore, it would be reasonable to expect that, should the material be disclosed, departmental
officers may in future become more cautious about the form in which such information is
provided (e.g. by tailoring information for a potentially wider audience), or be reluctant to provide
such material altogether, out of concern that any opinions and recommendations contained
within the information may be disclosed outside the department to third parties under the FOI
Act. This would have an adverse effect on the proper and efficient processing of FOI requests
made to the department.
3.4
I am satisfied that the documents are conditionally exempt because their disclosure would, or
could reasonably be expected to, have a have a substantial adverse effect on the proper and
efficient conduct of the operations of the department. As noted above, I am required under
subsection 11A(5) of the FOI Act to give access to the information unless it would, at this time, on
balance, be contrary to the public interest. My consideration of the public interest test is set out
below.
3.5
Subsection 11A(5) of the FOI Act sets out the following factors favouring access to a document:
promote the objects of the FOI Act;
inform debate on a matter of public importance;
promote effective oversight of public expenditure; and
allow a person access to his or her own personal information.
3.6
The FOI Guidelines state that the public interest test is necessarily broad and is something that is
of serious concern or benefit to the public, not merely of individual interest. Access to documents
should not be given if, in the particular circumstances, there is, on balance, countervailing harm
which offsets the inherent public interest of giving access.
3.7
I have considered each of the factors favouring access listed above. In my view, disclosure of the
material in question would not go towards promoting the object of the FOI Act, other than
insofar as it would promote access to government information in the general sense. As the
information in question relates to unsuccessful grant applications, disclosure of that material
would not promote effective oversight of public expenditure, allow you or another person to
access his or her own personal information, or inform debate on a matter of public importance.
3.8
However, as discussed above, disclosure of the document would likely have a substantial and
unreasonable adverse effect on the effective administration of the department's FOI functions,
including engagement with applicants during FOI processes. I am satisfied that this outweighs
the limited public benefit that would flow through the disclosure of the document, and that
giving access to the information at this time would be contrary to the public interest.
3.9
I have therefore decided that the relevant material in the documents is exempt under
section 47E(d) of the FOI Act. In accordance with subsection 22(1) of the FOI Act, I have redacted
the exempt material so that the remaining non-exempt material in the document can be
released to you.
4. Section 47F – Personal Information
4.1
Subsection 47F(1) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
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4.2
The term ‘personal information’ is defined in section 4 of the FOI Act to mean:
information or an opinion (including information forming part of a database), whether
true or not, and whether recorded in a material form or not, about an individual whose
identity is apparent, or can reasonably be ascertained, from the information or opinion.
4.3
When determining whether the disclosure of personal information would be unreasonable,
subsection 47F(2) of the FOI Act requires me to consider:
(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 consider relevant.
4.4
I have decided that material contained in certain documents, as identified in the Schedule of
Documents, is conditionally exempt under subsection 47F(1)of the FOI Act.
4.5
The information which I have determined would be unreasonable to disclose comprises personal
information about departmental employees, and individuals (other than yourself) who have
made requests for access to documents under the FOI Act. This personal information includes
the names and contact details of employees, as well as the names of other individual FOI
applicants, among other information of a personal nature. This information is not well known or
publicly available. I also do not consider that any public purpose would be achieved through the
release of the personal information of these third parties. I am therefore satisfied that the third
party personal information is conditionally exempt under subsection 47F(1).
4.6
However, I am required under subsection 11A(5) of the FOI Act to give you access to this
conditionally exempt material unless in the circumstances it would be, on balance, contrary to
the public interest to do so.
4.7
I have considered each of the factors favouring access listed a
t 3.5 above. I do not consider that
disclosure of the personal information in question would go towards promoting the objects of
the FOI Act, as the FOI Act recognises the need to protect unreasonable intrusions on the
privacy of individuals. Nor do I consider that disclosure would materially inform debate on a
matter of public importance, or promote effective oversight of public expenditure. As the
personal information relates to third parties and not yourself, the fourth public interest factor is
not relevant.
4.8
I have taken into account the extent to which disclosure would prejudice individuals’ personal
privacy, and also consider that the release of personal information could cause stress to the
persons to whom the information relates, particularly having regard to the subject matter of the
documents and nature of the information contained therein.
4.9
Further, I have considered the previous effects of releasing information about other
departmental employees and contractors in response to similar FOI requests. In particular, I am
mindful that those releases has resulted in those employees being directly contacted on their
phone numbers and being targeted by public campaigns. It is reasonably foreseeable that such
harm will continue to occur if I were to release the personal information of these individuals.
4.10 I am also of the view that disclosure could reasonably be expected to prejudice the effective
administration of the department's FOI functions. As noted above, FOI applicants have a general
expectation that material relating to their requests will be treated in a confidential manner and
not shared more broadly (other than where this is required by law, such as meeting disclosure
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log obligations). If the relevant material were to be released, this could have the wider effect of
deterring members of the public from engaging with the department in relation to access
requests.
4.11 Following consideration of these factors, I have decided that in the circumstances of this
particular matter, the public interest in disclosing the personal information is outweighed by the
public interest against disclosure.
4.12 Therefore, I am satisfied that certain material in the documents are of such a nature that it is
conditionally exempt under subsection 47F(1) of the FOI Act. Furthermore, I have decided that
on balance it would be contrary to the public interest to release this information, such that
access is refused.
5. Publication
5.1
Section 11C of the FOI Act requires agencies to publish documents released through an FOI
request on our website within 10 days of release, except in certain circumstances including
when the documents contain personal or business information that would be unreasonable to
publish.
5.2
The documents being released to you do contain personal or business information that would
be unreasonable to publish. As a result, they will not be published on our disclosure log.
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Part B – Review Rights
Application for Internal Review
Section 54 of the FOI Act gives you the option to apply for a departmental internal review of my
decision. If you make an application for internal review it will be conducted by an officer of the
department (other than me) appointed by the Secretary of the department to conduct a review and
make a completely fresh decision on the merits of the case.
Application for a review of the decision must be made within 30 days after the day of receipt of this
letter, or within 15 days of receipt of the documents to which this decision relates (whichever is the
longer period). You do not have to pay any fees or processing charges for an internal review, except for
charges relating to the provision of any additional relevant material located as a result of the review
(for example photocopying). While a specific form is not required, it would assist the decision maker if
your application specifies the grounds on which you consider the decision should be reviewed.
Application for a review of a decision should be addressed to:
FOI Coordinator
Department of Industry, Science, Energy and Resources
GPO Box 2013
CANBERRA ACT 2601
or by e-mail to
: xxx@xxxxxxxx.xxx.xx. Review by the Australian Information Commissioner
If any decision on internal review were not satisfactory to you, section 54L of the FOI Act gives you the
right to apply for review of my decision by the Information Commissioner.
An application for review by the Information Commissioner may be made regardless of whether the
decision was the subject of a departmental internal review. An application for review by the
Information Commissioner must be made within 60 days of receipt of this notice. There is no fee for
review by the Information Commissioner.
You must apply in writing and you can lodge your application in one of the following ways:
Onlin
e: www.oaic.gov.au Post: GPO Box 5218, Sydney NSW 2001
Fax: +61 2 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx An application form is available on the website at
www.oaic.gov.au. Your application should include a
copy of this notice and your contact details. You should also set out why you are objecting to the
decision.
Complaints to the Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee for
making a complaint. The Australian Information Commissioner will make a completely independent
investigation of your complaint. A complaint to the Australian Information Commissioner must be
made in writing and can be lodged online using the Information Commissioner Complaint Application
form on the Australian Information Commissioner’s website a
t www.oaic.gov.au.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
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LEX 68742
Request for Access under the Freedom of Information Act 1982 (Cth)
Department of Industry, Science, Energy and Resources
FOI Applicant: Harry Witherspoon
SCHEDULE OF DOCUMENTS
Doc
Description of document
Pages
Decision
Reasons
No
1.
Email
1-5
Exempt in full
Whole document exempt under section 47E(d)
Pages 1-3: Removed personal information under section 47F
Pages 1-5: Removed out of scope information under section
22
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
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