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
Phil ip Sweeney
By email only: foi+request-6834-
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
) 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
The documents I seek are copies of:
the written disclosures of James Shipton to the
Responsible Minister for the period 1 February 2018 to the
the written disclosures of Daniel Crennan to the
Responsible Minister for the period 16 July 2018 to the
This letter contains notice of my decision in respect of your request.
I am an authorised decision maker for the purposes of section 23(1) of the FOI
I have identified 11 documents that fall within the scope of your request. These
documents are detailed in the attached schedule.
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
• the submissions from the parties consulted under section 27A of the FOI
• the decisions of the Australian Information Commissioner in 'AB' and
Australian Securities and Investments Commission  AICmr 48 (22
and 'Z' and Australian Securities and Investments Commission
 AICmr 43 (15 April 2013)
• the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the FOI Guidelines
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
‘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
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
3. the availability of the information from publicly accessible sources;
4. any other matters that ASIC considers relevant.
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
• 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
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
3. Access to the documents would promote effective oversight of public
4. Access to the documents would allow a person to access his or her
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
identified two that are particularly relevant to this decision; that is that
• 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
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 1 and 'Z' and Australian
Securities and Investments Commission 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)
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
• 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
) 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.
I provide you with the following information as required by section 26 of the FOI
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
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 firstname.lastname@example.org or by telephone on
1300 363 992.
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.
Lawyer, FOI & Privacy
(Authorised decision maker under section 23(1) of the FOI Act)