26 November 2020
JS
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear JS
Freedom of Information – Decision
I refer to your email of 27 October 2020 which states:
Under FOI I seek access to documents concerning or relating to the decisions by
the ABCC to publish information in the Disclosure log about the release of
documents to FOI applicants on:
1)
26 June 2019 Records relating to Building Code compliance activities
involving Hutchinson Builders. 4 documents released in part.
2)
4 June 2019 Records relating to Building Code compliance activities
involving Hutchinson Builders. 12 documents released in full, 26 documents
released in part.
I also seek access to documents concerning or relating to the decisions by the
ABCC to remove from its disclosure log the information about the release of
documents on the 4th and 26th of June 2019.
Summary of Decision
I am an authorised decision-maker under section 23 of the
Freedom of Information Act
1982 (the FOI Act). This letter sets out my decision on your request for access.
Following searches for documents in scope of your request, I have identified 6 documents
relevant to your request. I have decided to release 3 documents in part and that 3
documents are wholly exempt from disclosure. The decision in relation to each document
is set out in Attachment A to this decision.
In reaching my decision, I referred to the following:
the terms of your request;
the documents relevant to the request;
the FOI Act; and
Guidelines published by the Office of the Information Commissioner under
section 93A of the FOI Act.
Section 42 – Legal Privilege
Subsection 42(1) of the FOI Act provides:
A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal professional
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privilege.
A document is exempt from production on the ground of legal professional privilege if all
of the following apply:
a. there exists a lawyer-client relationship;
b. there have been confidential communications which are recorded in the document;
c. the communications were for the dominant purpose of providing legal advice or in
the context of actual or anticipated legal proceedings; and
d. the privilege has not been waived.
I have considered each of these factors in turn.
Lawyer-client relationship
The documents comprise or relate to advice obtained by the ABCC from an external legal
services provider retained by the ABCC. I am satisfied that there is a lawyer-client
relationship with the external legal service provider.
Confidential communications
The documents to which the exemption has been applied contain communications made
in the context of the lawyer-client relationship and were made on the understanding that
the usual relationship of confidence between a solicitor and a client governed the
communication. The communications were confidential at the time that they were made
and remain confidential.
Dominant purpose for the provision of advice
The communications were made for the dominant purpose of providing legal advice. They
comprise emails requesting advice from external legal providers, receiving the advice
requested and discussions about how that advice applied to ABCC activities.
No waiver of privilege
Subsection 42(2) of the FOI Act provides that:
A document is not exempt because of subsection (1) if the person entitled to claim legal
professional privilege in relation to the production of the document in legal proceedings
waives that claim.
There is no evidence before me that indicates that the substance of the communications
has been disclosed more broadly, or used in any way that would be inconsistent with
maintaining the confidentiality of the communications. Rather, the content of the
communications has only been shared with a limited number of people within the ABCC.
Conclusion
Accordingly, I am satisfied that the documents are exempt under section 42.
Exemption – Section 47F: personal privacy
Section 47F of the FOI Act conditionally exempts a document to the extent that its
disclosure would involve the unreasonable disclosure of personal information about any
person. Personal information includes any information or an opinion about an identified
individual, or an individual who is reasonably identifiable, whether the information or
opinion is true or not.
I am satisfied that the documents contain personal information about current employees
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of the ABCC. The personal information I have identified includes names, direct contact
numbers and email addresses.
Personal information wil 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:
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 matter that I consider relevant.
Firstly, I am satisfied that that the individuals concerned are not generally known to be
associated with the subject matter discussed in the documents.
As part of making my decision, I have taken into account the threats and statements made
against ABCC employees by prominent building industry participants in the past. Against
this background, I find that there are legitimate concerns relating to the disclosure of
personal information of the ABCC employees. In these circumstances, I find it would be
unreasonable to disclose their personal information.
Further, I find that it would be unreasonable to disclose the direct telephone numbers in the
documents.1 These direct contact details are not published by the ABCC.
Ultimately, I find that the disclosure of the personal information within the documents would
be an unreasonable disclosure of personal information about the ABCC employees.
Accordingly, I find that each of the documents is conditionally exempt under section 47F
of the FOI Act to the extent that they reveal names, email addresses and direct phone
numbers. I must give access to the documents unless, in the circumstances, access would
on balance be contrary to the public interest (considered below).
Public interest consideration
In determining whether it would be contrary to the public interest, I have balanced relevant
matters for and against disclosure.
I have considered that releasing personal information would generally promote the objects
of the Act, however I am not convinced that the release of the personal information would
assist in informing debate, or enhance scrutiny or promote oversight of the ABCC’s
activities.2 On the contrary, it is my view that there are a number of factors which weigh
against disclosure. These factors are:
disclosure of the information of both ABCC employees would unreasonably
interfere with the privacy of the individuals concerned; and
disclosure of personal information of ABCC employers would prejudice the
management function of the ABCC because agency employees would generally
expect their personal information will not be made publicly available.
On balance, I find that disclosure of the information in the documents is contrary to the
public interest. Accordingly, I have decided that the documents are exempt under section
1 This is consistent with the approach taken by Deputy President Forgie in
Chief Executive Officer, Services Australia and
Warren (Freedom of information) [2020] AATA 4557 at [128]-[130].
2 Chief Executive Officer, Services Australia and Warren (Freedom of information) [2020] AATA 4557 at [132]-[133].
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47F of the FOI Act.
Review rights
Internal review
I am not the principal officer of the ABCC. As a result, you are entitled under section 54 of
the FOI Act to seek an internal review of my decision. An internal review will be conducted.
Your application must be made within 30 days of you receiving this notice.
An internal review may be submitted by sending it to Freedom of Information Section,
ABCC, at either of the following contact addresses:
•
By post: GPO Box 9927 MELBOURNE VIC 3001 Australia
•
By email:
xxx@xxxx.xxx.xx
Please note in your application the decision that you wish to be reviewed.
If you choose to seek an internal review, you will subsequently have a right to apply to the
Australian Information Commissioner for a review of the internal review decision.
Review by the Australian Information Commissioner
Alternatively, under section 54L of the FOI Act, you may seek review of this decision by
the Australian Information Commissioner without first going to internal review. Your
application must be made within 60 days of you receiving this notice.
The Australian Information Commissioner is an independent office holder who may review
decisions of agencies and Ministers under the FOI Act. More information is available on
the Australian Information Commissioner's websit
e www.oaic.gov.au.
You can contact the Information Commissioner to request a review of a decision online or
by writing to the Information Commission at:
•
By post: GPO Box 5218 Sydney NSW 2001
•
By email:
xxxxx@xxxx.xxx.xx
If you have any queries about this decision, please contact the FOI Section by email to
xxx@xxxx.xxx.xx.
Yours sincerely
James Matheson
Australian Building and Construction Commission
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abcc.gov.au ABN 68 003 725 098
Doc
Description
Exemptions
Date
Decision
Number
Document 1
9 September
Email between ABCC employees
Release in
S 47F
2019
relating to uploading of content to FOI
part
Disclosure Log
Document 2
6 October
Emails relating to review of FOI
Release in
S 42, s 47F
2020
disclosure log (also containing legal
part
advice from external legal provider)
Document 3
6 October
Email chain between ABCC and
Exempt in
S 42, s 47F
2020
external legal service provider
Full
containing legal advice
Document 4
8 October
Email from ABCC employee to Matt
Exempt in
S 42, s 47F
2020
Kelleher (Deputy Commissioner, Legal)
Full
containing legal advice
Document 5
8 October
Email from ABCC employee to Matt
Exempt in
S 42, s 47F
2020
Kelleher (Deputy Commissioner, Legal)
Full
containing legal advice
Document 6
8 October
Email between ABCC employees
Release in
S 47F
2020
relating to removal of content from FOI
part
Disclosure Log
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GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
