date, number of pages, and purpose of brief)”, I have, in accordance with s17 of the FOI Act,
created and granted access in full to one (1) document that most closely meets the scope of
your request. The document released to you in accordance with the FOI Act is attached.
In relation to the second part of your request for a “
copy of the first page of each
"Commissioner Brief"” provided to the Australian Information Commissioner since 1 July
2020, I have identified 52 documents within the scope of your request. I have decided to
release 44 documents in full and refuse access to eight [8] documents in part or full.
A schedule describing the documents and the access decisions I have made is attached to
this decision.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 2 November 2020;
• your revised freedom of information request dated 23 November 2020;
• the FOI Act, in particular sections 11A(5), 17 and 47E(d);
• the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act (the FOI Guidelines), specifically paragraphs [3.204] – [3.210] and [6.120] – [6.123];
• searches conducted and advice provided by the teams responsible for providing
organisational support to the Commissioner and preparing and collating Senate
Estimates Briefs.
Information stored in electronic form - s 17
In relation to the first part of your request for “a listing of all "Commissioner Brief"
documents provided to the Australian Information Commissioner since 1 July 2020 (giving
date, number of pages, and purpose of brief)”, at the time of your request, the information
was not available in a discrete written form.
I have considered whether the Office of the Australian Information Commissioner (OAIC) can
create a document in accordance with the section 17 of the FOI Act. Section 17 requires an
agency to produce a written document of information that is stored electronically and not in
a discrete written form, if it does not appear from the request that the applicant wishes to be
provided with a computer tape or disk on which the information is recorded.
I have created one (1) document from the readily available information held by the OAIC,
that most closely meets your request. This document has been incorporated into the
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“Schedule of documents” describing the documents and the access decisions I have made
and is attached to this decision.
Certain operations of agencies exemption – s 47E(d)
In relation to the second part of your request for a “
copy of the first page of each
"Commissioner Brief"” provided to the Australian Information Commissioner since 1 July
2020, I have interpreted your request broadly to include documents with the words
“Commissioner Briefs” included in the title on the face of the document.
I have identified 52 documents within the scope of your request. I have decided that 8 of
these documents are conditionally exempt in part or full 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:
• inter-agency functions;
• preliminary inquiries or ongoing privacy investigations;
• commentary on the operation and effectiveness of legislation including the Privacy Act
and the FOI Act; and
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.
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 following:
…
(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 allegation that
damage may occur if the document were to be released.
Additionally, at [6.103] the FOI Guidelines further explain:
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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).
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.
In
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting
Authority [2014] AATA 707, Deputy President Forgie considered 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 operations2.
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 process3.
In
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
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
proper and efficient conduct of ASIC’s operations. I am also satisfied that the adverse
effect would be substantial4.
Functions and powers of the OAIC and Information Commissioner
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.
Due to the nature of the documents at issue, I have had regard to the Australian Information
Commissioner’s privacy powers, freedom of information powers and regulatory powers,
under the
Australian Information Commissioner Act 2010 (Cth) (AIC Act), the Privacy Act and
the FOI Act.
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under the 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.
The OAIC 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
and by other legislation containing privacy protection provisions. Part IV Division 2 of the
Privacy Act sets out the functions of the Information Commissioner, which include guidance
related functions, monitoring related functions, and advice related functions. The advice
related functions of the Information Commissioner include providing advice to a Minister
about any matter relevant to the operation of the Privacy Act, and providing reports and
recommendations in relation to legislative or administrative action in the interests of the
privacy of individuals. 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 addition, under the AIC Act and the FOI Act, the Information Commissioner has a range of
freedom of information functions and powers, including assessing and managing vexatious
4 Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [103].
5
declaration applications made by Commonwealth agencies, making decisions on
Information Commissioner reviews, and investigating and reporting on freedom of
information complaints.
Under the AIC Act, the Commissioner’s functions include making recommendations to the
Minister for legislative change to the FOI Act:
8 The freedom of information functions are as follows:
…
(f) making reports and recommendations to the Minister about:
(i) proposals for legislative change to the Freedom of Information Act 1982 ;
or
(ii) administrative action necessary or desirable in relation to the operation of that
Act;
Relevant to the exercise of the Commissioner’s power to report and recommend legislative
change or administrative action, the FOI Regulatory Action Policy further explains:
The factors the Information Commissioner takes into account in exercising the power
to report and recommend legislative change or administrative action may include:
• the objects of the FOI Act
• the risks and impact of non-compliance by agencies or ministers with the FOI Act,
and
• any other factors which the Information Commissioner considers relevant in the
circumstances
The Information Commissioner uses a range of sources to inform the consideration
of these factors which may include:
• stakeholder engagement
• reports of FOI statistics by agencies
• trends in applications for IC review and FOI complaints, and
• other sources of relevant information in the circumstances
The FOI Regulatory Action Policy further explains that the Commissioner seeks to work in
partnership with agencies, ministers and regulators to promote access to information:
6
The Information Commissioner works with agencies, ministers and regulators
(including other information commissioners) to promote access to information
through regulatory action and participation in domestic and international networks.
The Information Commissioner will seek to work in partnership with agencies,
ministers and regulators to promote access to information, recognising the practical
and resource advantages in doing so.
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 operations, I have
considered the functions and responsibilities of the Information Commissioner as set out
above.
As noted above, in this case, the documents at issue include information about:
• inter-agency functions;
• preliminary inquiries or ongoing privacy investigations;
• commentary on the operation and effectiveness of legislation including the Privacy Act
and the FOI Act; and
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, 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
7
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.
In relation to disclosing material that can be described as commentary on the operation and
effectiveness of legislation including the FOI Act, disclosing information that relates to the
Commissioner’s function to provide recommendations to the Minister at this time, may
result in the disclosure of information received from other agencies or ministers in a different
context that may have been provided in confidence. Disclosing such information could
reasonably be expected to adversely affect the proper and efficient conduct of the
operations of the OAIC by having a substantial adverse effect on the Information
Commissioner’s ability to work in partnership with agencies, ministers and regulators to
promote access to information and by inhibiting agencies, minister and regulators engaging
with the OAIC candidly and providing fulsome information relevant to the Commissioner’s
statutory functions in confidence.
Disclosing information that does not represent the Commissioner’s considered
recommendation on legislative reform would also have the effect of agitating issues in public
before the Commissioner engages in the process outlined in the Regulatory Action Policy
and decides whether or not to exercise the power to report and recommend legislative
change or administrative action. The Regulatory Action Policy explains that the
Commissioner may use a range of sources to inform her consideration of whether to exercise
this power including stakeholder engagement. Disclosing such documents is reasonably
likely to disrupt or prejudice processes such as stakeholder management and potentially
jeopardise the outcome of the Commissioner’s consideration on whether or not to exercise
this power. This would have a substantial and adverse effect on the OAIC’s operations,
ultimately circumventing the Commissioner’s regulatory function with respect to reporting
and recommending legislative change or administrative action to the minister.
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 8 documents 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.
The public interest test – s 11A(5)
An agency cannot refuse access to conditionally exempt documents unless giving access
would, on balance, be contrary to the public interest (s 11A(5)).
8
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
that5:
… the time at which I make my decision for s 11A(5) requires access to be given to a
conditionally 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.
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 and freedom of information
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 generally, 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
5 Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
9
Information Commissioner’s regulatory function with respect to conducting investigations
will be prejudiced.
In addition, 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 of the Commissioner with respect to FOI functions. I have also
considered that disclosure would reasonably be expected to prejudice the efficient
management of the OAIC’s regulatory function if regulated entities are less likely to actively
participate in the regulatory process such as by engaging with the OAIC and working in
partnership with the Commissioner to promote access to information. In this way, the
Information Commissioner’s regulatory function with respect to FOI will be prejudiced.
In this case, I am satisfied that the public interest factors against disclosure outweigh the
public interest factors in favour of disclosure.
I have decided that at this time, giving you full access to the documents, which I have found
to be conditionally exempt under s 47E(d) of the FOI Act, would, on balance, be contrary to
the public interest.
Conclusion
Please see the following page for information about your review rights and information
about the OAIC’s disclosure log.
Yours sincerely
John Molloy
Senior Lawyer
2 December 2020
10
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 to 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.
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.
11
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to 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 contact
xxxxx@xxxx.xxx.xx. More information is available on the 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 will be
published on our disclosure log shortly after being released to you.
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