Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 5, 100 Market Street,
Sydney NSW 2000
Mail address for Sydney office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Fax: +61 1300 729 000
Phil ip Sweeney
www.asic.gov.au
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx 12 October 2020
Dear Mr Sweeney
Freedom of Information Request No. FOI 158-2020
I refer to your request made under the
Freedom of Information Act 1982 (
FOI Act)
dated 12 August 2020 by which you requested access to documents in the
possession of the Australian Securities and Investments Commission (
ASIC).
Your request sought access to:
1) the "No Action" letter sent to Andrew Thorburn (former NAB CEO) by ASIC in or
around December 2019; and
2) a similar "No Action" letter that ASIC would have sent to Dr Ken Henry (former
NAB Chairman) after his testimony at the Royal Commission.
I am the authorised decision-maker for the purposes of s23 of the FOI Act and this
letter gives notice of my decision. All references to sections hereafter are, unless
otherwise stated, references to sections of the FOI Act.
Document Searches
Searches were conducted on 18 August 2020 for documents falling within the terms
of your request by ASIC’s Wealth Management Enforcement team. The team
searched ASIC’s internal database (SharePoint) and emails on Outlook using the
following terms: “Andrew Thorburn” and “no further action”; and “Ken Henry” and
“no further action”. The searches were completed in approximately 20 minutes. I am
satisfied that all reasonable steps have been taken to locate the documents falling
within the terms of your request.
I have identified
one document that falls within the terms of your request. I consulted
third parties on the release of this document. My decision on the release of this
document is set out below.
Decision and Reasons for the Decision
I advise that I have decided to refuse access to the document.
I have taken the following material into account in making my decision:
• the terms of your FOI request;
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• the content of the documents that fall within the scope of your request;
• the FOI Act (specifically s47F); and
• the guidelines issued by the Office of the Australian Information Commissioner
(
OAIC) under s93A (
FOI Guidelines).
Public interest conditional exemption: Section 47F – personal privacy
Section 47F(1) provides:
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
The FOI Act adopts the
Privacy Act 1988 definition of ‘personal information’, which
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.1
The term ‘personal information’ encompasses a broad range of information. In this
instance, the document contains information about an identifiable individual’s
personal business affairs. I am satisfied that this information is ‘personal information’
as defined above.
The following factors must be considered when determining if the disclosure of
personal information would be unreasonable:
(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;
(d) any other matters that the agency or Minister considers relevant.2
The key factors for determining whether disclosure is unreasonable include whether:
•
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;
•
no public purpose would be achieved through release.3
Other factors that are considered to be relevant include:
•
the nature, age and current relevance of the information;
•
any detriment that disclosure may cause to the person to whom the information
relates;
•
any opposition to disclosure expressed or likely to be held by that person;
1 Section 4 of the FOI Act; section 6 of the Privacy Act 1988.
2 Section 47F(2).
3 FOI Guidelines [6.142].
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•
the circumstances of an agency’s collection and use of the information;
•
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act;
•
any submission an FOI applicant chooses to make in support of their application
as to their reasons for seeking access and their intended or likely use or
dissemination of the information; and
•
whether disclosure of the information might advance the public interest in
government transparency and integrity.4
I consider that it would be unreasonable to disclose the personal information
contained in the document because:
•
release of the documents would cause stress on the third party;
•
disclosure of the information would jeopardise the personal privacy of a third
party/third parties; and
•
the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
Section 47F is a conditional exemption and therefore, subject to the public interest
test discussed below.
Public interest test
The FOI Act provides that access must be given to a conditionally exempt document
unless access would be contrary to the public interest.
As required by s11A, I have considered whether release of the conditionally exempt
material would, on balance, be contrary to the public interest. In particular, I have
had regard to the following factors outlined in s11B(3) as being factors favouring
access to the documents in the public interest:
• Access to the documents would promote the objects of the FOI Act (including
all matters set out in ss3 and 3A);
• Access to the documents would inform debate on a matter of public
importance;
• Access to the documents would promote effective oversight of public
expenditure; and
• Access to the documents would allow a person to access his or her personal
information.
Of the above factors, I find factor 1 to be relevant in that the release of the
documents would support the objects of the FOI Act by providing information
relevant to a government agency decision as well as background and context
information that informed it.
The above factor must be balanced against the factors against disclosure. The FOI
Act does not specify any factors against disclosure in the public interest however the
FOI Guidelines issued by the OAIC include a non-exhaustive list of thirteen such
4 FOI Guidelines [6.143].
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factors. Of these factors, two are relevant to this decision. The disclosure of the
documents:
• could reasonably be expected to prejudice the protection of an individual’s right
to privacy; and
• could reasonably be expected to harm the interests of an individual.
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 s11B(4) as they are factors that
are irrelevant in deciding whether access to the documents would be contrary to
the public interest.
The factors against disclosure of the identified material exempted under s47F
outweigh the factors in favour of disclosure. Whilst the release of the material in full
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 the
personal privacy of the relevant third party. In the circumstances, I consider that
there is little public benefit to be gained from the release of the details about the
third party’s personal business affairs. This benefit is outweighed by the expected
harm that would occur with respect to the privacy of the individuals concerned and
would cause stress to the third party. Therefore, I am satisfied that the document is
fully exempt under s47F.
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.
The FOI Act provides that charges may be assessed for time spent processing a
request. I have decided that there are no charges applicable to the processing of
your request in this instance.
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If you have any questions or wish to discuss, please contact me on
xxxxx.xxx@xxxx.xxx.xx or (02) 9911 5269.
Yours sincerely,
Mabel Say
Freedom of Information Officer
(Authorised decision maker under section 23(1) of the FOI Act)
