FOI 208 2020 Notice of decision.pdf

Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
22 December 2020

Fax: +61 1300 729 000

www.asic.gov.au
Phil ip Sweeney
By email only: foi+request-6834-
xxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Sweeney
Freedom of Information Request No. FOI 208-2020
Notice of Decision
I refer to your request received by us on 25 October 2020 under the Freedom
of Information Act 1982 (FOI Act) in which you have sought information from
the Australian Securities and Investments Commission (ASIC).

Your email seeks access to the following:

The ASIC Chairman, James Shipton, and Deputy Chairman, Daniel
Crennan, are required to make 6-monthly written disclosures of their
personal business interests, both direct and indirect, to the Responsible
Minister as required by Section 123 of the ASIC Act 2001 and related
ministerial instructions.

The documents I seek are copies of:

i.
the written disclosures of James Shipton to the
Responsible Minister for the period 1 February 2018 to the
present; and
ii.
the  written  disclosures  of  Daniel  Crennan  to  the
Responsible  Minister  for  the  period  16  July  2018  to  the
present.

This letter contains notice of my decision in respect of your request.

Decision

I am an authorised decision maker for the purposes of section 23(1) of the FOI
Act.

I have identified 11 documents that fall within the scope of your request. These
documents are detailed in the attached schedule.

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I advise that I have decided to refuse access to all 11 documents under section
47F of the FOI Act.

I have taken the following material into account in making my decision:
•  the content of the documents that are the subject of your request and
the circumstances under which the documents were provided to ASIC;
•  the FOI Act (specifically sections 22 and 47F);
•  section 123 of the Australian Securities and Investments Commission Act
(ASIC Act);
•  the submissions from the parties consulted under section 27A of the FOI
Act;
•  the  decisions  of  the  Australian  Information  Commissioner  in  'AB'  and
Australian  Securities  and  Investments  Commission  [2013]  AICmr  48  (22
April 2013) and 'Z' and Australian Securities and Investments Commission
[2013] AICmr 43 (15 April 2013); and
•  the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the FOI Guidelines).

Exemptions

Section 47F - Public interest conditional exemptions—personal privacy

Each of the 11 documents identified have been exempted under section 47F
of the FOI Act which relevantly provides that:

‘A document is conditionally exempt if its disclosure under this Act would
involve the unreasonable disclosure of personal information about any
person (including a deceased person).’

“Personal information” is defined in the FOI Act by reference to section 6 of the
Privacy Act 1988 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; and
(b) Whether  the  information  or  opinion  is recorded  in  material  form or
not.’

Section  47F(2)  sets  out  factors  that  must  be  considered  when  determining  if
disclosure would be unreasonable. These factors are as follows:

1. the extent to which the information is well known;
2. 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;
3.  the  availability  of  the  information  from  publicly  accessible  sources;
and
4. any other matters that ASIC considers relevant.

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The exempted material includes the details of the personal financial affairs of
Mr Shipton and Mr Crennan. Documents 1-6 also contain personal information
that pertains to the affairs of other individuals.

I am satisfied that it would be unreasonable to disclose this personal information
for the following reasons:
•  the information is not well known or available from publicly accessible
sources;
•  the information was provided with an understanding of confidentiality
and each document is marked ‘Strictly Private & Confidential’; and
•  the  FOI  Act  does  not  control  or  restrict  any  subsequent  use  or
dissemination of information released under the FOI Act.

I  therefore  find  that  the  release  of  the  identified  material  would  be
unreasonable  for  the  purposes  of  s47F  and  the  material  is  therefore
conditionally exempt under s47F of the FOI Act.

Conditional  exemptions  are  subject  to  the  public  interest  test  which  is
considered below.

Public Interest Test

The  FOI  Act  provides  that  access  must  be  given  to  a  conditionally  exempt
document unless access would be contrary to the public interest.

As required by s 11A of the FOI Act I have considered whether release of the
conditionally  exempt  material  in  the  documents  would,  on  balance,  be
contrary to the public interest. In particular, I have had regard to the following
factors outlined in s 11B(3) as being factors favouring access to the documents
in the public interest:

1.  Access  to  the  documents  would  promote  the  objects  of  the  FOI  Act
(including all matters set out in sections 3 and 3A).
2.  Access to the documents would inform debate on a matter of  public
importance.
3.  Access to the documents would promote effective oversight of public
expenditure.
4.  Access  to  the  documents  would  allow  a  person  to  access  his  or  her
personal information.
Of the above factors I find factor 1 to be relevant to the identified documents.
The objects of the FOI Act include providing for a right of access to information
in  the  possession  of  Commonwealth  government  agencies  and  promoting
accountability and transparency in government decision making.  In this case,
the release of the identified documents would support the objects of the FOI
Act by making available information which is held by ASIC.

Against  the  above  factors  must  be  balanced  the  factors  against  disclosure.
The FOI Act does not specify any factors against disclosure in the public interest
however  the  FOI  Guidelines  at  6.22  include  a  non-exhaustive  list  of  factors
which  may  be  relevant  to  these  considerations.  Of  these  factors  I  have

4
identified  two  that  are  particularly  relevant  to  this  decision;  that  is  that
disclosure:

•  could  reasonably  be  expected  to  prejudice  the  protection  of  an
individual’s right to privacy;
•  could reasonably be expected to harm the interests of an individual or
group of individuals.

Determining  whether  disclosure  would  be  contrary  to  the  public  interest
requires that I weigh the relevant factors to determine where the public interest
lies.

I have not taken into account the factors outlined in s 11B(4) of the FOI Act as
factors that are irrelevant in deciding whether access to the documents would
be contrary to the public interest.

In weighing up the factors against disclosure, I have considered the obligations
imposed by section 123 of the ASIC Act for members of ASIC’s Commission to
provide declarations to the Minister. These documents are not otherwise made
publicly  available  and  the  requirement  under  section  123  does  not
contemplate a further distribution of the information provided to the Minister.

I note that the Information Commissioner has previously considered the issue of
the release of declarations made under section 123 of the ASIC Act in 'AB' and
Australian Securities and Investments Commission [2013]1 and 'Z' and Australian
Securities  and  Investments  Commission  [2013]2.  In  both  previous  matters,  the
Information  Commissioner  gave  significant  weight  to  the  prejudice  that  the
release of the documents would cause to the protection of the privacy of the
individuals  concerned.  The  Information  Commissioner  also  noted  that  the
sensitivity of the financial information included in the letters was a significant
factor weighing against disclosure.

Release  of  the  material  in  full  would  promote  the  objects  of  the  FOI  Act  by
making information held by ASIC available to the public. Against this must be
weighed a consideration of the public interest in protecting individuals from the
unreasonable disclosure of their personal information.

In this instance, the release of this material would certainly have an adverse
impact upon the personal privacy of both Mr Shipton and Mr Crennan as well
as  the  third  parties  whose  information  also  appears  in  Documents  1-6.
Accordingly, I am satisfied that the public interest weighs more heavily in favour
of  protecting  the  personal  privacy  of  the  affected  individuals  and  that  the
documents found to be conditionally exempt are exempt from release under
section 47F of the FOI Act.

1 2013 AICmr 48 (22 April 2013)
2 2013 AICmr 43 (15 April 2013)

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Section 22 Access to edited copies

Section 22(2) of the FOI Act requires an agency to provide an applicant access
to  an  edited  copy  of  a  document  with  the  exempt  matter  deleted  if  it  is
reasonably practicable for the agency to prepare an edited copy, having
regard to:
• the nature and extent of the modifications (s 22(1)(c)(i)); and
• the resources available to modify the document (s 22(1)(c)(ii)).

I consider that it is not reasonably practicable to prepare an edited copy of
the documents with the exempt material deleted in this instance.

I further note that additional material has been removed from documents 1-6
as indicated in the attached schedule in accordance with section 22(b)(ii) of
the FOI Act which states that a document can be edited to ‘not disclose any
information that would reasonably be regarded as irrelevant to the request…’

The material that was deemed irrelevant to your request involved declarations
made by Mr Shipton to the Minister under section 29 of the Public Governance,
Performance and Accountability Act 2013 (PGPA Act) and Rule 13 of the Public
Governance Performance and Accountability Rule 2014.

As these declarations are clearly differentiated in the identified documents as
being  made  in  respect  of  Mr  Shipton’s  obligations  under  the  PGPA  Act,  I
consider them to fall outside of the scope of your request.

Review rights
I provide you with the following information as required by section 26 of the FOI
Act.
In the event that you are dissatisfied with the decision:
1.  You may, within 30 days after the day on which you have been notified
of  this  decision,  apply  in  writing  to  ASIC  for  an  internal  review  of  my
decision under section 54B of the FOI Act. This review is an independent
process conducted by a Senior Freedom of Information Officer at ASIC.
This  request  should  be  addressed  to  me  or  to  the  Senior  Manager,
Freedom of Information, GPO Box 9827, Brisbane QLD 4001 or by email
to xxxxxxxxxx@xxxx.xxx.xx.
2.  You may within 60 days after the day on which you have been notified
of this decision, apply in writing to the Office of the Australian Information
Commissioner (OAIC) for a review of my decision under section 54N of
the  FOI  Act.    You  may  contact  the  OAIC  by  post  at  GPO  Box  5218
Sydney NSW 2001, by email at xxxxx@xxxx.xxx.xx or by telephone on
1300 363 992.

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Right to complain
You may lodge a complaint with the OAIC in relation to the conduct of ASIC
in the handling of this request. You may contact the OAIC as set out above.

Yours faithfully,

Justin Frank
Lawyer, FOI & Privacy
(Authorised decision maker under section 23(1) of the FOI Act)