ONE NATIONAL CIRCUIT
FREEDOM OF INFORMATION ACT 1982
DECISION BY: Peter Rush Assistant Secretary
Parliamentary and Government Branch
By email: firstname.lastname@example.org
Dear Mr Unmeopa
I refer to your email, dated 2 October 2020, to the Department of the Prime Minister and Cabinet
), in which you made a request under the Freedom of Information Act 1982
(the FOI Act
) in the following terms:
I seek the Department’s assessments justifying the award of The Humanitarian Overseas
Service Medal to Australians from the following commercial contractors General Electric
Infrastructure, Water and Process Technologies; and Aspen Medical Pty Ltd.
On 30 October 2020, the Department wrote to advise you that in accordance with section 15(6) of
the FOI Act, the processing period had been extended for a further 30 days in order to allow the
Department to consult a State government under section 26A of the FOI Act.
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Documents meeting the terms of your request
The Department has identified two documents relevant to the terms of the FOI request (the requested documents
), described in the schedule at Attachment A. Decision
I have decided to:
grant access, in part, to Document 1, on the basis it contains information that is
conditionally exempt under sections 47F (personal information) and 47G(1)(a)
(business information) of the FOI Act, and its disclosure would be contrary to the
public interest; and
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
link to page 2
grant access, in part, to Document 2, on the basis it contains information that is
conditionally exempt under sections 47C (deliberative processes) and 47E(d) (certain
operations of an agency) of the FOI Act, and its disclosure would be contrary to the
Further information is in the schedule at Attachment A.
The documents that can be released to you are attached.
In making my decision, I have considered the following:
the terms of your request;
the requested documents;
submissions made by a State government agency consulted under section 26A of the
comments from an Australian Government department;
a prior internal review decision made by the Department on Document 2;
the FOI Act; and
The ‘Guidelines made by the Australian Information Commissioner issued under
section 93A of the Freedom of Information Act 1982
’ (the FOI Guidelines
Section 47C of the FOI Act – deliberative material
Section 47C(1) of the FOI Act provides that a document is conditionally exempt if its disclosure
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 an agency, a Minister, or the Government of the Commonwealth.
Section 47C(2)(b) of the FOI Act provides that ‘deliberative matter' does not include ‘purely
The FOI Guidelines relevantly provide as follows:
A deliberative process involves the exercise of judgement in developing and making a
selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing
upon one’s course of action. In short, the deliberative processes involved in the
functions of an agency are its thinking processes – the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
‘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 of a proposal, a particular
decision or a course of action
1 FOI Guidelines, [6.58] – [6.59] (footnotes omitted).
link to page 3 link to page 3 link to page 3 link to page 3 …
‘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’.2
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.3
I am satisfied that parts of Document 2 contain deliberative matter regarding the Humanitarian
Overseas Service Medal. The deliberative matter was prepared in the course of, or for the purposes
of, the deliberative processes involved in the functions of the Department. I am also satisfied that
those parts of Document 2 do not contain ‘purely factual material’.
I am therefore satisfied that parts of Document 2 are conditionally exempt under section 47C of
the FOI Act. Section 47E(d) of the FOI Act – certain operations of agencies
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI 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.
The FOI Guidelines relevantly provide as follows:
An agency’s operations may not be substantially adversely affected if the disclosure would,
or could reasonably be expected to lead to a change in the agency’s processes that would
enable those processes to be more efficient.4
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is,
the agency is undertaking its expected activities in an expected manner. Where disclosure
of the documents reveals unlawful activities or inefficiencies, this element of the
conditional exemption will not be met and the conditional exemption will not apply.5
In relation to the test ‘would or could reasonably be expected to’, the FOI Guidelines provide as
The test requires the decision maker to assess the likelihood of the predicted or forecast
event, effect or damage occurring after disclosure of a document.
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires
analysis of the reasonable expectation rather than certainty of an event, effect or damage
2 FOI Guidelines, [6.63] (footnotes omitted).
3 FOI Guidelines, [6.73] (footnotes omitted).
4 FOI Guidelines, [6.120] (footnotes omitted).
5 FOI Guidelines, [6.123] (footnotes omitted).
link to page 4 link to page 4 occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.
The mere risk, possibility or chance of prejudice does not qualify as a reasonable
expectation. There must, based on reasonable grounds, be at least a real, significant or
material possibility of prejudice.6
The FOI Guidelines provide that the term ‘substantial adverse effect’ broadly means
… ‘an adverse effect which is sufficiently serious or significant to cause concern to a
properly concerned reasonable person’. The word ‘substantial’, taken in the context of
substantial loss or damage, has been interpreted as ‘loss or damage that is, in the
circumstances, real or of substance and not insubstantial or nominal’.7
I am satisfied that parts of Document 2 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 on the basis that its disclosure would inhibit the Department’s
ability to prepare material relevant to the Department and/or ministers’ Parliamentary
Accordingly, I am satisfied parts of Document 2 are conditionally exempt under section 47E(d) of
the FOI Act. Section 47F 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
‘Personal information’ under the FOI Act has the same meaning as in the Privacy Act 1988
… information or an opinion about an identified individual, or an individual who is
(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.
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.
The FOI Guidelines states that key factors for determining whether disclosure is unreasonable
6 FOI Guidelines, [5.16] – [5.18] (footnotes omitted).
7 FOI Guidelines, [5.20] (footnotes omitted).
link to page 5 link to page 5 link to page 5 link to page 5
• the author of the document is identifiable;
• the document contains third party personal information;
• release of the document would cause stress on the third party; and
• no public purpose would be achieved through release.8
The FOI Guidelines provide that other factors that may be relevant to whether disclosure of
personal information would be unreasonable under section 47F of the FOI Act 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
• 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
• whether disclosure of the information might advance the public interest in government
transparency and integrity. 9
The FOI Guidelines further provide that the object of the FOI Act of promoting transparency in
government processes and activities needs to be balanced with the purpose of section 47F to
protect personal information.10
The FOI Guidelines further explain as follows:
Disclosure that supports effective oversight of government expenditure may not be
unreasonable, particularly if the person to whom the personal information relates may
have reasonably expected that the information would be open to public scrutiny in future.
On the other hand, disclosure may be unreasonable if the person provided the information
to Government on the understanding that it would not be made publicly available, and
there are no other statutory disclosure frameworks that would require release of the
I am satisfied that Document 1 contains the personal information of identified individuals, or
individuals who are reasonably identifiable. I consider that the following factors weigh in favour
of a finding that disclosure of the personal information would be unreasonable:
• the personal information may not be well known;
• the persons to whom the information relates may not be known to be (or to have been)
associated with the matters dealt with in the document;
• the personal information may not be available from publicly accessible sources;
• the personal information does not appear to have been provided to Government on the
understanding that it would be made public;
• the personal information may be sensitive.
Disclosure of the information might advance the public interest in government transparency and
integrity, however, I consider that this is outweighed by the interests of the individuals concerned
in the protection of their privacy.
8 FOI Guidelines, [6.142].
9 FOI Guidelines, [6.143].
10 FOI Guidelines, [6.144].
11 FOI Guidelines, [6.145] (footnotes omitted).
link to page 6
I am satisfied that the personal information in Document 1 is conditionally exempt under section
47F of the FOI Act. Section 47G of the FOI Act – business information
Section 47G(1)(a) of the FOI Act provides that a document is conditionally exempt if its
disclosure would disclose information concerning a person in respect of his or her business or
professional affairs, or concerning the business, commercial or financial affairs of an organisation
or undertaking (business information), where the disclosure of the information:
• would, or could reasonably be expected to, unreasonably affect the person adversely in
respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs
In relation to the term ‘business or professional affairs’, the FOI Guidelines relevantly provide as
The use of the term ‘business or professional affairs’ distinguishes an individual’s
personal or private affairs and an organisation’s internal affairs. The term ‘business
affairs’ has been interpreted to mean ‘the totality of the money-making affairs of an
organisation or undertaking as distinct from its private or internal affairs’.
The internal affairs of an organisation include its governance processes, the processes by
which organisations are directed and controlled. For example, documents relating to
member voting processes are not exempt under s 47G, because member voting forms part
of the governance affairs of an organisation.
In relation to the concept of unreasonable adverse effect of disclosure, the FOI Guidelines provide
The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private
interests. The public interest, or some aspect of it, will be one of the factors in determining
whether the adverse effect of disclosure on a person in respect of his or her business
affairs is unreasonable. A decision maker must balance the public and private interest
factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a); but
this does not amount to the public interest test of s 11A(5) which follows later in the
decision process. It is possible that the decision maker may need to consider one or more
factors twice, once to determine if a projected effect is unreasonable and again in
assessing the public interest balance. Where disclosure is not unreasonable, the decision
maker will need to apply the public interest test in s 11A(5). This is inherent in the
structure of the business information exemption.
The test of reasonableness applies not to the claim of harm but to the objective assessment
of the expected adverse effect. For example, the disclosure of information that a business’
activities pose a threat to public safety, damage the natural environment; or that a service
provider has made false claims for government money may have a substantial adverse
effect on that business but may be reasonable in the circumstances to disclose. Similarly, it
would not be unreasonable to disclose information about a business that revealed serious
criminality. These considerations require a weighing of a public interest against a private
12 FOI Guidelines, [6.192] – [6.193] (footnotes omitted).
link to page 7 interest, preserving the profitability of a business, but at this stage it bears only on the
threshold question of whether the disclosure would be unreasonable.
The AAT has said, for example, that there is a strong public interest in knowing whether
public money was accounted for at the appropriate time and in the manner required; and
in ensuring that public programmes are properly administered.
The AAT has distinguished between ‘truly government documents’ and other business
information collected under statutory authority. The first category includes documents that
have been created by government or that form part of a flow of correspondence and other
documents between the government and business. The AAT concluded that such documents
inclined more to arguments favouring scrutiny of government activities when considering
whether disclosure would be unreasonable. By implication, the exemption is more likely to
protect documents obtained from third party businesses.
Where disclosure would result in the release of facts already in the public domain, that
disclosure would not amount to an unreasonable adverse effect on business affairs.
I am satisfied that disclosure of parts of Document 1 would disclose the business affairs of an
organisation and that disclosure would, or could reasonably be expected to, unreasonably affect
that organisation in respect of its lawful business, commercial or financial affairs.
I am therefore satisfied that parts of Document 1 are conditionally exempt under section 47G(1)(a)
of the FOI Act. Section 11A(5) of the FOI Act – the 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
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
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
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
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.
13 FOI Guidelines, [6.187] – [6.191] (footnotes omitted).
link to page 8 link to page 8 link to page 8 link to page 8 Factors in favour of disclosure
The FOI Act sets out four factors favouring disclosure which must be considered if relevant,
• promote the objects of the FOI Act;
• inform debate on a matter of public importance;
• promote effective oversight of public expenditure; or
• allow a person to access his or her personal information.
I am satisfied that disclosure of the conditionally exempt information may promote the objects of
the FOI Act. The FOI Guidelines contain a non-exhaustive list of public interest factors favouring
disclosure that may also be relevant in particular circumstances.15
However, the list in the FOI
Guidelines contains no additional relevant public interest factors to those that I have already taken
account of as described above.
Factors against disclosure
The FOI Act does not provide for any public interest factors against disclosure that decision
makers may consider. The FOI Guidelines contain a non-exhaustive list of public interest factors
against disclosure that may also be relevant in particular circumstances,16
I have had regard.
I consider that disclosure of the conditionally exempt information could reasonably be expected
• affect the ability of the Department to provide comprehensive advice to Government on a
key Commonwealth program, namely the Humanitarian Overseas Service Medal, a
significant medal in the Australian honours system, administered by the Department;
• inhibit the ability of the Department to provide comprehensive advice to the Government,
on the basis that the level of detail contained in future internal correspondence and briefs
may be diminished, if there were a risk of such deliberations and discussions being
• have an adverse and substantial effect on the proper and efficient operations of the
• harm the interests of an organisation in respect of its lawful business affairs; and
• prejudice the protection of individuals’ rights to privacy.
Balancing the public interest
In weighing the public interest factors for and against disclosure, I note the FOI Guidelines
provide that the pro-disclosure principle declared in the objects of the FOI Act is given specific
effect in the public interest test, as the test is weighted towards disclosure.17
Notwithstanding the weighting towards disclosure, in this case, I attach more weight to the public
interest factors against disclosure. In weighing the factors, I consider the public interest against
disclosure outweighs the public interest for disclosure.
14 See section 11B(3) of the FOI Act and FOI Guidelines, [6.17].
15 FOI Guidelines, [6.19].
16 FOI Guidelines, [6.22].
17 FOI Guidelines, [6.8].
I am therefore satisfied that disclosing the conditionally exempt information in the documents
would, on balance, be contrary to the public interest. Section 22 of the FOI Act - Deletion of exempt or irrelevant information
Section 22 of the FOI Act provides that exempt or irrelevant information may be deleted from a
copy of a document, and access granted to such an amended copy where it is reasonably
practicable to do so, unless it is apparent that the applicant would not wish to have access to such a
As indicated in the schedule at Attachment A, the requested documents contain exempt and/or
irrelevant material. The irrelevant material is as follows:
• material subject to the Department’s redaction policy advised to you on 16 October 2020
o any person’s signature;
o names and contact details of Australian Public Service officers not in the Senior
o the mobile or direct numbers of SES officers; and
o the names and contact details of Ministerial staff at a level below Chief of Staff;
• material that is not within the scope of the FOI request, that is, material which does not
constitute ‘the Department’s assessments justifying the award of The Humanitarian
Overseas Service Medal to Australians from the following commercial contractors General
Electric Infrastructure, Water and Process Technologies; and Aspen Medical Pty Ltd.’
I find that it is reasonably practicable to copy the documents with the exempt or irrelevant
information deleted, and that you would wish to be granted access to those documents with the
Publication of the documents
Under section 11C of the FOI Act the Department will make arrangements to publish the
documents released to you on the Department’s FOI disclosure log.
Processing and access charges
I have decided not to impose processing charges in respect of your request.
Information about your rights of review under the FOI Act is available at https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
You may make a complaint to the Information Commissioner about the Department’s actions in
relation to this decision. Making a complaint about the way the Department has handled an FOI
request is a separate process to seeking review of the Department’s decision. Further information
about how to make a complaint is available at https://www.oaic.gov.au/freedom-of-
Parliamentary and Government Branch
1 December 2020