FOI 38197
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jo (Position Number 62210326), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Mr John Smith
Decision date:
24 December 2020
FOI reference number:
FOI 38197
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith,
Freedom of Information Request: FOI 38197
Decision
1. The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified 14 documents relevant to your request.
2. I have made a decision to grant access in part to those 14 documents.
3. The documents that I have chosen to grant access in part to are set out in
Schedule 1,
together with applicable exemption provisions. Where I have decided to grant access in part,
I have provided access to an edited copy of the documents, modified by deletions in
accordance with section 22(2) of the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Authority to make decision 4. I, Jo (Position Number 62210326), Assistant Director, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
1
Summary 5. On 15 September 2020 you made five (5) requests for access to documents in the possession
of the Department. Your requests sought access to:
a) FOI 38197
…copies of any contracts, MOUs, tenders, or agreements that have existed between your
department and the fol owing entities:
- 'TJ Affiliates'
- 'Remembrance Foundation'
- The 'modern soldier' social media page
- The natural person 'Talissa Papamau'
Please also include the most recent email between your department and the above four entities in
this FOI request, if such emails exist.
If no such documents exist please advise.
b) FOI 38201
…the department’s guidelines for the awarding of tenders.
c) FOI 38198
… any terms of agreement, purchase orders, or contracts between the DVA and the developers of
the app 'Swiss8'.
- the five most recent emails as at the date of this email, between DVA and the developers of
Swiss8.
If no such documents exist please advise.
d) FOI 38202
…copies of any contracts, correspondence, and/or terms of agreement that relate to the awarding
of Commonwealth tender ID CN3574734.
e) FOI 38200
…a copy of any contract, correspondence, and terms of agreement held by your department in
relation to the Commonwealth tender ID CN3528664.
2
6. On 29 September 2020, we advised you that the Department does not hold any internal
documents in relation to guidelines for the awarding of tenders (FOI 38201) and a link to the
relevant public guidelines was provided to you. Following this correspondence, you
confirmed on 30 September 2020 via email that you agreed to withdraw your FOI request
(FOI 38201).
7. On 8 October 2020, the Department issued you with a request consultation notice under
section 24AB of the FOI Act and advised you that:
a. Your remaining four (4) FOI requests (38197, 38198, 38200 and 38202) had been
combined in accordance with section 24(2) of the FOI Act as the requests related to
substantially similar subject matter; and
b. Based on the terms of your request, and from the initial searches and business area
consultations undertaken in relation to your request, the Department was of the
view that practical refusal reasons existed because:
i. processing your request, as best the Department could understand its
terms, would likely result in a substantial and unreasonable diversion of the
Department’s resources from its other operations (section 24AA(1)(a)(i) of
the FOI Act); and
ii. your request did not satisfy section 15(2)(b) of the FOI Act, as it does not
provide such information concerning the requested documents as was
reasonably necessary to enable a responsible officer of the agency to
identify it (section 24AA(1)(b) of the FOI Act).
8. Fol owing this consultation notice, on 19 October 2020 you agreed to the removal of
correspondence from the scope of your request. The Department responded seeking
confirmation of a revised wording of the scope, as follows (with strikethrough applied to the
parts of the request that had been removed):
‘…copies of any contracts, MOUs, tenders, or agreements that have existed
between your department and the fol owing entities:
-'TJ Affiliates'
-'Remembrance Foundation'
-The 'modern soldier' social media page
-The natural person 'Talissa Papamau'
3
Please also include the most recent email between your department and the above
four entities in this FOI request, if such emails exist.
copies of any contracts, correspondence, and/or terms of agreement that relate to
the awarding of Commonwealth tender ID CN3574734.
Any terms of agreement, purchase orders, or contracts between the DVA and the
developers of the app 'Swiss8'.
The five most recent emails as at the date of this email, between DVA and the
developers of Swiss8.
a copy of any contract, correspondence, and terms of agreement held by your
department in relation to the Commonwealth tender ID CN3528664…’
9. On 21 October 2020, we further advised you that the Department had been unable to
identify or locate any terms of agreement, purchase orders or contracts between DVA and
the developers of the app ‘Swiss8.’ As a result the Department asked you to consider
withdrawing this part of your request. You responded on 22 October 2020 agreeing to the
withdrawal of this part of your request.
10. On 21 October 2020, you were also advised that the Department was required to undertake
third party consultations in accordance with section 27 and 27A of the FOI Act. This had the
effect of extending the clock by a further 30 days in accordance with section 15(6) of the FOI
Act.
11. On 12 November 2020, the Department requested an extension of time under section 15AA
of the FOI Act, on the basis that one of the third parties had requested further time to
respond to the Department’s consultation notice. You agreed to this extension of time on
17 November 2020.
12. The third parties responded advising that they object to the release of certain information
contained within the documents on the basis that it is of a commercially valuable and/ or
commercially sensitive nature. In particular, the total contract amounts listed; this
information would provide their competitors with an unfair advantage and it is not known
outside of their company. One third party also objected to the release of the names of
subcontractors and solicitors within the documents on the basis that it is personal
information.
4
13. On 30 November 2020, the Department wrote to you regarding two grant applications that
had been identified within the documents provided by the business areas. We sought your
confirmation that these two grant applications did not fal within the scope of your request.
The Department confirmed in this email that the scope of your request had been revised
following your email of 19 November, as follows:
‘…copies of any contracts, MOUs, tenders, or agreements that have existed between
your department and the fol owing entities:
-'TJ Affiliates'
-'Remembrance Foundation'
-The 'modern soldier' social media page
-The natural person 'Talissa Papamau'
copies of any contracts and/or terms of agreement that relate to the awarding of
Commonwealth tender ID CN3574734.
a copy of any contract, correspondence, and terms of agreement held by your
department in relation to the Commonwealth tender ID CN3528664…’
14. On 4 December 2020, as no response had been received from you, the Department
confirmed that we would proceed on the basis that the two grant applications did not fal
within the scope of your request and would therefore not be included in the documents
released to you.
15. As extensions of time were applied to process your request in accordance with section 15(6)
and 15AA of the FOI Act, a decision on your request is due by 25 December 2020.
16. I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the
Freedom of Information (Charges) Regulations 2019.
17. Thank you for your patience, understanding and cooperation in liaising with us during this
FOI process.
Material taken into account
18. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the documents follows.
5
19. I have taken the following material into account in making my decision:
• the terms of your request and as revised;
• informal and formal consultation with you regarding the terms of your request;
• the types of information and documents that are in the Department’s possession;
• the content of the document that fal within the scope of your request;
• Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant
to my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access
- Section 22 Access to edited copies with exempt or irrelevant material
deleted
- Section 23 Decisions to be made by authorised persons
- Section 47 Documents disclosing trade secrets or commercially valuable
information
- Section 47E Public interest conditional exemptions--certain operations of
agencies
- Section 47F Public interest conditional exemptions--personal privacy
- Section 47G Public interest conditional exemptions--business
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (
FOI Guidelines); and
• the views of third parties consulted by the Department under section 27 and 27A of
the FOI Act.
20. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
21. I have decided to
grant access in part to the documents within the scope of your request,
subject to the fol owing exemptions in accordance with the FOI Act:
6
Documents disclosing trade secrets or commercial y valuable information (section 47)
22. Section 47 of the FOI Act provides that a document is an exempt document if its disclosure
would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
23. Some of the documents contain material relating to the commercial affairs of third parties
and of the Department. This includes the lapel specifications, contracting rates and labour
hire arrangements between the Department and those third parties.
24. After review of this material and consideration of the views of the third parties consulted
under section 27 of the FOI Act, I consider this material to be commercially valuable
information, and that disclosure would or could reasonably be expected to destroy or
diminish its value. The material that I have chosen to redact is known only to a very limited
number of people and in a small market place for this type of work. I am satisfied that
disclosure of this information would diminish the value of that information to the third
party. I also understand that much of this material is classified as commercial in confidence.
25. Also contained within the documents are the travel and accommodation rates contractors
can access when travel ing on Departmental business. These are based on the rates the
Department pays in respect of its staff members and the Department considers these to be
commercial in confidence. They are of commercial value to the Department (and to its
contractors) as they form part of the financial terms the contract. Further, they are
negotiated by the Department with third party suppliers and the Department pays fees for
special rates. I consider that disclosing them could reasonably be expected to have a
detrimental impact on the Department’s ability to secure competitive rates in the future.
25. I have also redacted some information on the basis that it is the intel ectual property of a
third party. The third party has objected to the disclosure of this information on the basis
that it is known only to the third party and is considered to be a trade secret.
26. Accordingly, I have decided that the parts of the documents which are listed as exempt in
accordance with this provision in
Schedule 2, meet the criteria for exemption pursuant to
section 47 of the FOI Act.
7
27. As section 47 of the FOI Act is not a conditional exemption, I am not required to consider a
public interest test.
Public interest conditional exemptions--certain operations of agencies (section 47E)
28. Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to, do any of the fol owing:
(a)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by a
n agency;
(b)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an
agency.
29. Parts of the documents contain the surnames of non-Senior Executive staff members, other
than the names of those non-Senior Executive staff members whose contacts details you
already have or where they are already known to you. I have decided to exempt this
material in accordance with section 47E of the FOI Act.
30. The Department’s role is to provide support and information to veterans and their families,
Australian Defence Force personnel and other categories of people. The services and
support which the Department provides include pensions and compensation, health care,
rehabilitation and counsel ing services, amongst other things. It is important that the
Department is able to continue to provide these services and to carry out the other
legislative functions and administrative and operational processes required of them. Certain
processes and specific channels of communication have been implemented which enable
clients and other relevant stakeholders to contact the Department in a way that ensures al
Departmental resources are managed as efficiently as possible. I consider that the release of
this material could reasonably be expected to adversely affect the Department as its
established lines of communication could be bypassed. It is reasonable to expect that this
would disrupt and adversely affect the operations of the Department.
31. I also consider that the release of this information could have a substantial adverse effect on
the management or assessment of personnel as well as an adverse effect on the proper and
efficient conduct of the operations of the agency including the inability of the Department to
retain staff or effectively manage the wel being and safety of our staff. Relevantly, some
staff have been targeted, insulted or harassed based on disclosure of their details. This
presents chal enges in managing the welfare of staff and can affect the ongoing
management and retention of personnel by the Department. Consequently, in these
circumstances, it would not be in the public interest to release this information.
8
32. Accordingly, I have decided that parts of the documents listed as exempt in accordance with
this provision in Schedule 1, meet the criteria for this conditional exemption. Where a
document is assessed as conditionally exempt, access must be given subject to the public
interest test in accordance with section 11A(5) of the FOI Act.
Application of the public interest test:
33. Section 11A(5) provides that an agency must give the person access to the document if it is
conditional y exempt at a particular time unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest.
34. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
35. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the management or assessment of personnel by the Commonwealth, by
Norfolk Island or by an
agency; and
(b)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of a
n agency.
36. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
37. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Public interest conditional exemptions--personal privacy (section 47F)
38. Section 47F 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).
9
39. Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Privacy Act). Personal information is defined in section 6 of the Privacy Act
as:
. 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;
(b)
whether the information or opinion is recorded in a material form or not.
40. The elements of ‘personal information’ are:
(a)
it relates only to a natural person (not, for example, a company);
(b)
it says something about the individual;
(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database;
(d)
the individual’s identity is known or is reasonably ascertainable using the
information in the document.
41. If information is personal information, it will be conditionally exempt if disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:
(a)
the extent to which the information is wel 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 matter I consider relevant.
10
42. Certain material within the documents contains personal information, specifically, the
surnames, signatures and personal contact details of third parties. The documents also
contain the signatures of Department staff. I understand that this information has not been
previously disclosed to you, nor is it publically available. Accordingly, I consider that the
release of this material would be an unreasonable disclosure of a person’s personal
information and I have made a decision to redact this personal information to give effect to
this conditional exemption.
43. Accordingly, I have decided that the parts of documents which are listed as exempt in
accordance with this provision in
Schedule 1, meet the criteria for conditional exemption.
Where a document is assessed as conditionally exempt, access must be given subject to the
public interest test in accordance with section 11A(5).
Application of the public interest test:
44. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
45. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
46. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy.
47. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
48. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Public interest conditional exemptions—business (section 47G)
49. Section 47G of the FOI Act provides that a document is conditional y exempt if its disclosure
under this Act would disclose information concerning a person in respect of his or her
11
business or professional affairs or concerning the business, commercial or financial affairs of
an organisation or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that 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; or
(b)
could reasonably be expected to prejudice the future supply of information to the
Commonwealth, Norfolk Island or an agency for the purpose of the administration
of a law of the Commonwealth or of a Territory or the administration of matters
administered by an
agency.
50. Parts of the documents contain material relating to the commercial and business affairs of a
third party. This includes details relating to the third party’s contracted rates with the
Department. I consider that the disclosure of this material would or could be reasonably
expected to unreasonably affect the commercial and business affairs of that third party. I
also consider that the disclosure of this material could reasonably be expected to prejudice
the Department’s relationship with that third party, specifical y the future supply of
information between this third party and the Department.
51. I am of the view that the disclosure of such information could reasonably impact the third-
party’s business and professional affairs and that this commercially sensitive material should
be redacted under section 47G of the FOI Act.
52. Accordingly, I have decided that the documents and parts of documents which are listed as
exempt in accordance with this provision in
Schedule 1, meet the criteria for conditional
exemption. Where a document is assessed as conditionally exempt, access must be given
subject to the public interest test in accordance with section 11A(5).
Application of the public interest test:
53. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
54. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
12
55. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure could reasonably be expected to prejudice the competitive commercial
activities of an agency; and
(b)
disclosure would, or could reasonably be expected to, unreasonably affect that
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.
56. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
57. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
58. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
59. As explained above, some of the documents subject to your request contain exempt
information. On this basis, I have prepared the documents for release by removing that
exempt material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as wel as at
Schedule 1.
Access to documents
60. The documents released to you in accordance with the FOI Act are enclosed.
13
Information Publication Scheme
61. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
62. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request wil be published on the Department’s
FOI Disclosure Log which can be accessed at
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
63. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a more rapid
resolution of your concerns.
Internal review
64. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.
65. You can make your application for Internal Review in one of the fol owing ways:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
14
OAIC review
66. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
67. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
68. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Law, Legal Services and Audit Branch
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Jo (Position Number 62210326)
Assistant Director
Information Law Section
Legal Services and Audit Branch
24 December 2020
15
FOI 38197
Schedule 1
Schedule of documents
Applicant:
John Smith
Decision date:
24 December 2020
FOI reference number:
FOI 38197
Document Date of
Document description
Page Decision Exemption
reference document
number
provision
1
23.1.2019 Contract between DVA and T & S Signcraft
1-16 Part
ss 47, 47E,
Access 47F and
47G
2
14.4.2020 Contract between DVA and TJ & Affiliates
17-35 Part
ss 47, 47E,
Access 47F and
47G
3
unknown Remembrance Foundation – project summary
36-39 Part
s 47
Access
4
17.7.2017 Contract between DVA and Remembrance Foundation 40-53 Part
ss 47E, 47F
Access and 47G
5
18.12.2017 Contract between DVA and Remembrance Foundation 54-69 Part
ss 47E and
– Paulatim Project
Access 47F
6
Unknown Agreement for Goods and Services between DVA and 70-74 Part
ss 47E and
Remembrance Foundation
Access 47F
7
19.3.2018 Contract between DVA and Remembrance Foundation 75-89 Part
ss 47E, 47F
Access and
47G
8
22.10.2019 Contract between DVA and TJ & Affiliates
90-108 Part
ss 47E, 47F
Access and 47G
9
13.12.2019 Contract between DVA and TJ & Affiliates
109- Part
ss 47E and
126 Access 47F
10
18.12.2017 Contract between DVA and Remembrance Foundation 127- Part
ss 47E, 47F
– Paulatim Project
142 Access and 47G
11
18.12.2017 Contract between DVA and Remembrance Foundation 143- Part
ss 47E, 47F
158 Access and 47G
12
7.8.2017
Veteran Health Outreach Project
159- Part
ss 47, 47E
161 Access and 47F
13
14.4.2020 D1385 - Request for approval for commitment of
162 Part
ss 47E, 47F
relevant money
Access and 47G
14
21.10.2019 Contract between DVA and TJ & Affiliates
163- Part
ss 47E, 47F
182 Access and 47G
16
FOI 38197
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
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 fol owing:
(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).
17
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 conditional y exempt.
Note 2: A conditional y 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 conditional y 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).
11B Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include whether access to
the document would do any of the fol owing:
(a)
promote the objects of this Act (including al the matters set out in sections 3 and
3A);
(b)
Inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of 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 document was (or is) of high seniority in the agency to which the
request for access to the document was made;
(d)
access to the document could result in confusion or unnecessary debate.
18
Guidelines
(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
19
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
26 Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note: Access must general y be given to a conditional y exempt document unless it would be
contrary to the public interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
47
Documents disclosing trade secrets or commercial y valuable information
20
(1)
A document is an exempt document if its disclosure under this Act would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
(2)
Subsection (1) does not have effect in relation to a request by a person for access to a
document:
(a)
by reason only of the inclusion in the document of information concerning that
person in respect of his or her business or professional affairs; or
(b)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an organisation where the person
making the request is the organisation or a person acting on behalf of the
organisation.
(3)
A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
47E
Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
47F
Public interest conditional exemptions—personal privacy
General rule
(1)
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).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(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.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead
(4)
Subsection (5) applies if:
21
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
47G Public interest conditional exemptions—business
(1)
A document is conditionally exempt if its disclosure under this Act 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,
in a case in which the disclosure of the information:
(a)
would, or could reasonably be expected to, unreasonably affect that 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; or
(b)
could reasonably be expected to prejudice the future supply of information to the
Commonwealth, Norfolk Island or an agency for the purpose of the administration
of a law of the Commonwealth or of a Territory or the administration of matters
administered by an agency.
(2)
Subsection (1) does not apply to trade secrets or other information to which section 47
applies.
(3)
Subsection (1) does not have effect in relation to a request by a person for access to a
document:
(a)
by reason only of the inclusion in the document of information concerning that
person in respect of his or her business or professional affairs; or
(b)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an organisation where the person
making the request is the organisation or a person acting on behalf of the
organisation.
22
(4)
A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
(5)
For the purposes of subsection (1), information is not taken to concern a person in respect
of the person’s professional affairs merely because it is information concerning the
person’s status as a member of a profession.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
23
Document Outline
