Our reference: FOIREQ20/00187
Julie
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your freedom of information request
Dear Julie
I refer to your request for access to documents made under the
Freedom of
Information Act 1982 (Cth) (the FOI Act) and received by the Office of the Australian
Information on 23 September 2020.
In your request you seek access to the fol owing:
copy of that briefing book or pack used by the Information Commissioner on Tuesday 3 2020
(when she appeared before the Senate Legal and Constitutional Affairs Legislation
Committee for the 2019-20 Additional Budget Estimates).
On 15 October 2020, Ms Angela Wong advised you that a practical refusal existed
under s 24AA of the FOI Act, as processing your request would substantially and
unreasonably divert the resources of the OAIC.
Ms Wong gave you an opportunity to consult her to revise your request to remove the
practical refusal reason and asked you to confirm whether you wanted to revise your
request, withdraw your request or whether you did not want to revise your request.
On 22 October 2020 you responded seeking:
a schedule of the documents…
On 28 October 2020, Ms Wong provided a list of index tabs for the brief provided to
the Commissioner for Additional Senate Estimates Hearing on 3 March 2020 to assist
you with revising the scope of your request.
On 2 November 2020, you responded and revised the scope of your request to:
(In order of preference, up to the limit of that which may otherwise be voluminous):
*Corporate Folder - Documents 1-6, 9, & 12
*Privacy Folder - Documents 1-3, 5, 7-8, 10, 12, 17-19, 21, 25
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
* FOI Folder - Nil
* Folder B - Nil
I have consulted with the Information Commissioner during the processing of your
request. The Information Commissioner has confirmed that document one listed in
the corporate folder in the index provided to you on 28 October 2020 was not
included in the briefing pack used by the Information Commissioner on Tuesday 3
March 2020 when she appeared before the Senate Legal and Constitutional Affairs
Committee. Accordingly, this document is out of the scope of your request.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified 20 documents within the scope of your request. I have decided to
release 9 documents in full and refuse access to 11 documents in full and part.
A schedule describing the documents and the decision I have made on each
document is at Appendix A.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request of 23 September 2020
• your revised scope of 2 November 2020
• the FOI Act, particular at ss 11A(5), 37, 47E(d) and 47F
• the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act to which regard must be had in performing a function or exercising a
power under the FOI Act (the FOI Guidelines), in Part 6.
Investigation of a breach of law – s 37(1)(a)
Under s 37(1)(a) of the FOI Act, a document is exempt if its disclosure would, or could
reasonably be expected to, prejudice the conduct of a current investigation.
2
Section 37(1)(a) of the FOI Act states:
37 Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would,
or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible
breach, of the law, or a failure, or possible failure, to comply with a law
relating to taxation or prejudice the enforcement or proper
administration of the law in a particular instance;
The FOI Guidelines at [5.86] provides:
Section 37(1)(a) applies to documents only where there is a current or pending
investigation and release of the document would, or could reasonably be expected
to, prejudice the conduct of that investigation. Because of the phrase ‘in a particular
instance’, it is not sufficient that prejudice will occur to other or future
investigations: it must relate to the particular investigation at hand. In other words,
the exemption does not apply if the prejudice is about investigations in general.
Additionally, at [5.87] the FOI Guidelines further explains:
The exemption is concerned with the conduct of an investigation. For example, it
would apply where disclosure would forewarn the applicant about the direction of
the investigation, as well as the evidence and resources available to the investigating
body — putting the investigation in jeopardy. The section wil not apply if the
investigation is closed or if it is being conducted by an overseas agency.
In order to determine whether disclosure of the documents would, or could
reasonably be expected to prejudice the conduct of a current investigation, the FOI
Guidelines at [5.16] - [5.17] notes:
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 occurring. It may be a reasonable expectation that an effect has
occurred, is presently occurring, or could occur in the future.
Under s 40(2) of the
Privacy Act 1988 (Cth) (the Privacy Act), the Information
Commissioner has the power to investigate an act or a practice if the act or practice
may be an interference with the privacy of an individual or a breach of Australian
Privacy Principle 1, and the Commissioner thinks it is desirable that the act or
practice be investigated.
3
The document at issue pertains to a s 40 investigation that is currently on foot. The
relevant case officers are in the process of investigating the matter, and the outcome
of the investigation has not yet been determined. Releasing the document at issue
will prejudice the conduct of the current s 40 investigation.
Furthermore, I consider that disclosure of the documents would prejudice the
current investigations if preliminary material were disclosed before an investigation
has been finalised. I consider it likely that the documents and the parties involved,
will be subject to scrutiny over matters which have not been thoroughly investigated.
It is likely that as a result, the relevant parties would be discouraged from actively
participating in the current investigation.
In order to effectively conduct investigations under s 40 of the Privacy Act, it is
necessary for the OAIC to openly engage with the parties subject to the inquiry. Open
engagement is important during an investigation as the OAIC relies in part upon the
candour and frankness of the relevant entity to provide pertinent information that
wil inform the OAIC’s view. As such, the OAIC’s ability to work with parties to elicit
information, important to the investigation, will be adversely affected by the
disclosure of the document.
Accordingly, I have decided that the document at issue is exempt under s 37 of the
FOI Act. I consider that disclosure would, or could reasonably be expected to,
prejudice the conduct of the current s 40 of the Privacy Act investigation.
Certain operations of agencies exemption – s 47E(d)
I have decided that 9 documents at issue are conditionally exempt in full and part
under s 47E(d) of the FOI Act.
The material that I have found to be conditionally exempt under s 47E(d) can be
described as information in relation to:
• resourcing of the Office of the Australian Information Commissioner
• inter-agency functions
• preliminary inquiries and ongoing privacy investigations, and
• ongoing privacy assessments.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure
could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
4
Section 47E(d) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
The FOI Guidelines at [6.101] provides:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably
expected to occur. The term ‘could reasonably be expected’ is explained in greater
detail in Part 5. There must be more than merely an assumption or al egation that
damage may occur if the document were to be released.
Additionally, at [6.103] the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure. The
particulars of the predicted effect should be identified during the decision making
process, including whether the effect could reasonably be expected to occur. Where
the conditional exemption is relied upon, the relevant particulars and reasons
should form part of the decision maker’s statement of reasons, if they can be included
without disclosing exempt material (s 26, see Part 3).
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC, I have taken into consideration the functions and activities of
the OAIC.
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under the
Australian Information Commissioner Act 2010 (Cth) (AIC Act).
The OAIC comprises the Australian Information Commissioner and the Privacy
Commissioner (both offices currently held by Angelene Falk), the FOI Commissioner
(office currently vacant), and the staff of the OAIC.
Due to the nature of the documents at issue, I have had regard to the Australian
Information Commissioner’s privacy powers and the Australian Information
Commissioner’s regulatory powers, under the AIC Act and the Privacy Act.
Relevant Administrative Appeals Tribunal decisions
In making this decision I have considered decisions of the Administrative Appeals
Tribunal (AAT) which discuss the s 47E(d) exemption.
5
link to page 6 link to page 6 link to page 6 link to page 6
In the Administrative Appeals Tribunal (AAT) case of
Diamond and Chief Executive
Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA
707, Deputy President Forgie discussed that for a claim under s 47E(d) to succeed,
the substantial adverse effect that would, or could reasonably be expected to, occur
must be on the ‘proper and efficient conduct of the operations of an agency’. Deputy
President Forgie explains that the ‘ordinary meanings of the word “operation” in this
context’ includes ‘an act, method or process of working or operating.’
1
The AAT has found that disclosure of documents held by statutory regulators and
investigatory bodies would have a substantial adverse effect on an agency’s proper
and efficient conduct of operations.
2
I note also that the AAT has recognised that the conduct of an agency’s regulatory
functions can be adversely affected in a substantial way when there is a lack of
confidence in the confidentiality of the investigation process.
3
Consistently, in the AAT case of
Utopia Financial Services Pty Ltd and Australian
Securities and Investments Commission (Freedom of information) [2017] AATA 269,
Deputy President Forgie found documents concerned with ASIC’s investigation and
surveillance functions to be exempt under s 47E(d). Deputy President Forgie found
that the subject-matter of the documents was directed to the investigations
associated with Utopia and that:
… disclosure would give insight into an aspect or aspects of the way in which ASIC goes
about its task of investigating or conducting surveillance on those who come within its
regulatory responsibilities. Utopia itself might have some idea of them as it has been the
subject of such surveillance and examination of its affairs. Others would not. To disclose
them under the FOI Act would, I find, have an adverse effect on the proper and efficient
conduct of ASIC’s operations. I am also satisfied that the adverse effect would be
substantial.
4
Consideration
In deciding whether disclosure of the documents requested in this case would, or
could reasonably be expected to, have a substantial adverse effect on the OAIC’s
1
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority
[2014] AATA 707 [119].
2
FOI Guidelines [6.121] and [6.122].
3
Telstra Australian Limited and Australian Competition and Consumer Commission [2000] AATA
71 (7 February 2000) [24].
4
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission
(Freedom of information) [2017] AATA 269 [103].
6
operations, I have considered the functions and responsibilities of the Information
Commissioner and the OAIC.
The Office of the Australian Information Commissioner is established under s 5 of the
AIC Act. Section 5 also provides that the Information Commissioner is the Head of the
OAIC for the purposes of the
Public Service Act 1999 (Cth). Section 5 further provides
that for the purposes of the
Public Governance, Performance and Accountability Act
2019 (Cth) the Information Commissioner is the accountable authority of the OAIC.
The Information Commissioner has a range of functions and powers directed
towards protecting the privacy of individuals by ensuring the proper handling of
personal information. These functions and powers are conferred by the AIC Act and
the
Privacy Act 1988 (Privacy Act) and by other legislation containing privacy
protection provisions. Investigating privacy breaches, either in response to a
complaint from a member of the public or on the Commissioner’s own initiative;
conducting privacy assessments of APP entities; and regulating the Notifiable Data
Breaches (NDB) scheme are among the Information Commissioner’s primary
functions.
In this case, the documents at issue include information about the resourcing of the
OAIC, inter-agency functions, and assessments, investigations and preliminary
inquiries undertaken by the Information Commissioner to determine whether to
commence investigation.
As Head and Accountable Authority of the OAIC the Information Commissioner is
responsible for the resourcing and financial management of the OAIC. Disclosing
information that relates to these functions at this time could reasonably be expected
to adversely affect the proper and efficient conduct of the operations of the OAIC.
In the exercise of statutory functions under the AIC Act and Privacy Act, the
Information Commissioner participates in inter-agency consultation and
cooperation. Disclosing information that includes information received from other
agencies relating to the exercise of statutory functions could have a substantial
adverse effect on the Information Commissioner’s inter-agency statutory functions.
During the assessment, investigation and preliminary inquiry processes, the OAIC
requires third parties to actively participate by making submissions and participating
in conferences. Disclosing information that do not represent the Commissioner’s
concluded view would have the effect of agitating issues in public before the
completion of the investigation, preliminary inquiry or assessment which would
allow the Commissioner to reach a final view. Disclosing such documents at this time
is reasonably likely to disrupt or prejudice the ongoing investigation, preliminary
inquiry or assessment and potentially jeopardise the outcome of the investigation,
7
preliminary inquiry or assessment which would have a substantial and adverse effect
on the OAIC’s operations.
Disclosing documents that include information on assessments, investigations and
preliminary inquiries to individuals not party to these processes could also have an
adverse impact on the reputation of those APP entities that are the subject of the
OAIC’s regulatory processes. If the documents were disclosed, contrary to the
parties’ expectation of confidentiality, it is likely that APP entities will be less likely to
participate fully and frankly in the OAIC’s assessment, investigation and preliminary
inquiry processes, which would result in prejudice to these processes. This would
ultimately circumvent the OAIC’s regulatory function.
It is my view, based on the factual context, character and content of these
documents, that the predicted adverse effect of disclosure would be likely to occur.
Accordingly, in this case, I am satisfied that giving you access to the documents
would, or could reasonably be expected to, substantially adversely affect the proper
and efficient conduct of the operations of the OAIC.
I am satisfied that the documents at issue are conditionally exempt under s 47E(d) of
the FOI Act. I will consider the public interest in relation to these conditionally
exempt documents below.
Personal privacy conditional exemption – s 47F
I have decided that one document is conditional y exempt in part under s 47F of the
FOI Act.
The material that I have found to be conditional y exempt under s 47F can be
described as information in relation to superannuation entitlements of an OAIC staff
member.
Section 47F of the FOI Act conditionally exempts documents where disclosure would
involve the unreasonable disclosure of personal information of any person (including
a deceased person). This exemption is intended to protect the personal privacy of
individuals.
In the FOI Act, personal information has the same meaning as in the
Privacy Act 1988
(Cth) (Privacy Act). Under s 6 of the Privacy Act, personal information 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
8
link to page 9
b) whether the information or opinion is recorded in a material form or not
I am satisfied that for the purposes of the FOI Act, the superannuation entitlements
of an OAIC staff member is personal information.
In determining whether disclosure of personal information would be unreasonable, s
47F(2) of the FOI Act requires me to have regard to the following matters:
• the extent 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
• any other matters I consider relevant.
I consider that the release of the superannuation entitlements of an OAIC staff
member would be an unreasonable disclosure of personal information. The relevant
information is not well-known nor available on publicly accessible sources.
Therefore, the information is conditionally exempt under s 47F of the FOI Act.
I am satisfied that the document at issue is conditionally exempt under s 47F of the
FOI Act. I will consider the public interest in relation to this conditional y exempt
document below.
The public interest test – s 11A(5)
An agency cannot refuse access to conditional y exempt documents unless giving
access would, on balance, be contrary to the public interest (s 11A(5)).
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, Deputy President
Forgie explained that:
5
… the time at which I make my decision for s 11A(5) requires access to be given to a
conditional y exempt document “
at a particular time” unless doing so is, on balance,
contrary to the public interest. Where the balance lies may vary from time to time for
it is affected not only by factors peculiar to the particular information in the
documents but by factors external to them.
5
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
9
In this case, I must consider whether, disclosure of the information at this time would
be contrary to the public interest.
The public interest factors favouring disclosure in this case are that disclosure would
promote the objects of the FOI Act and inform debate on a matter of public
importance.
Against these factors I must balance the factors against disclosure. The FOI Act does
not specify any factors against disclosure, however the FOI Guidelines provide a non-
exhaustive list of factors against disclosure. This includes factors such as when
disclosure could:
• reasonably be expected to impede the flow of information to the Information
Commissioner and OAIC in its capacity as a privacy regulator
• reasonably be expected to prejudice the Information Commissioner’s and
OAIC’s ability to obtain confidential information in the future
• reasonably be expected to impede the administration of justice general y,
including procedural fairness
• reasonably be expected to prejudice the Information Commissioner’s and
OAIC’s ability to obtain and deliberate regarding sensitive information.
In this case I consider that the public interest factor against disclosure is that
disclosure would reasonably be expected to prejudice the efficient management of
the regulatory function. I have placed significant weight on this factor as in relation
to ongoing investigations and assessments, no finalised position has been reached. I
have also considered that disclosure would reasonably be expected to prejudice the
efficient management of the OAIC’s regulatory function if participants are less likely
to actively participate in the regulatory process such as by responding to preliminary
inquiries, the Information Commissioner’s regulatory function with respect to
conducting investigations will be prejudiced.
I have also considered that disclosing an individual's superannuation entitlements in
circumstances where those details have not been previously disclosed, would be an
interference with an individual's right to privacy.
In this case, I am satisfied that the public interest factors against disclosure outweigh
the public interest factors in favour of disclosure.
10
I have decided that at this time, giving you full access to the documents, which I have
found to be conditional y exempt under s 47E(d) and 47F of the FOI Act, would, on
balance, be contrary to the public interest.
Please see the following page for information about your review rights and
information about the OAIC's disclosure log.
Yours sincerely
Emma Liddle
Acting Principal Lawyer
6 November 2020
11
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email t
o xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision
(IC review). If you wish to apply for IC review, you must do so in writing within
60 days. Your application must provide an address (which can be an email address or
fax number) that we can send notices to, and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
12
Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email t
o xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
conta
ct xxxxx@xxxx.xxx.xx. More information is available on th
e Access our
information page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
The documents I have decided to release to you do not contain business or personal
information that would be unreasonable to publish. As a result, the documents wil
be published on o
ur disclosure log shortly after being released to you.
13
Document Outline
