Our reference: FOIREQ20/00232
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 7 December 2020.
In your request you seek access to the following:
For the purposes of the Freedom of Information Act, I request ful copy of
documents listed as numbers 2, 9, 17, 19, 20, 21, 26, 27, 28, 29, 30, 32, 33, 36, 37,
40, 46, 47, 49 & 50 in the Schedule of Documents to FOIREQ20/00213.
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 14 documents in full and refuse access to 6 documents in part.
A schedule describing the documents and the decision I have made on each
document is at Appendix A. To assist you the schedule also contains an additional
column cross referencing the document numbers of FOIREQ20/000213 that are
identified in your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request of 7 December 2020
• the FOI Act, particular at ss 11A(5) and 47E(d)
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
• 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
• Relevant Administrative Appeals Tribunal (AAT) decisions
Certain operations of agencies exemption – s 47E(d)
I have decided that 6 documents are conditionally exempt 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:
• the operations of other agencies obtained through inter-agency consultation
and cooperation
• investigations and/or complaints, and
• commentary on the operation and effectiveness of legislation including the
FOI Act.
Under s 47E(d) of the FOI Act, a document is conditional y 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 conditional y 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:
An agency cannot merely assert that an effect would occur fol owing disclosure. The
particulars of the predicted effect should be identified during the decision making
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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 also considered decisions of the Administrative
Appeals Tribunal (AAT) which discuss the s 47E(d) exemption.
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
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 surveil ance 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
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].
3
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conduct of ASIC’s operations. I am also satisfied that the adverse effect would be
substantial.
4
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 also had regard to the
Australian Information Commissioner’s powers under the AIC Act, Privacy Act and the
FOI Act.
Functions and powers of the OAIC and Information Commissioner
The Office of the Australian Information Commissioner is established under s 5 of the
Australian Information Commissioner Act 2010 (Cth) (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.
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 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.
5
4
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission
(Freedom of information) [2017] AATA 269 [103].
5 AIC Act, s 8(f)(i) and (ii).
4
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:
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 and the OAIC as set out above.
As discussed above, the requested documents include material that can be
described as information in relation to:
• the operations of other agencies obtained through inter-agency consultation
and cooperation
• investigations and/or complaints, and
5
• commentary on the operation and effectiveness of legislation including the
FOI Act.
Operational information obtained through inter-agency consultation
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.
Information relating to investigations and/or complaints
During the complaint, investigation and/or preliminary inquiry processes the OAIC
requires parties to provide materials. Disclosing documents that include information
on preliminary inquiries, investigations and/or complaints to individuals not party to
these processes could have an adverse impact on the reputation of those agencies
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
agencies will be less likely to participate fully and frankly in future preliminary
inquiry, investigations and/or complaints processes, which would result in prejudice
to these processes. This would ultimately circumvent the OAIC’s regulatory
function(s) which would, in my opinion, have a substantial adverse effect on the
OAIC’s operations.
In addition, disclosing information that does 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 preliminary
inquiries and/or assessments which would, in my opinion, have a substantial and
adverse effect on the OAIC’s operations.
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
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link to page 7
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 or not to exercise this power including stakeholder
engagement. Disclosing such documents at this time 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.
Finding
It is my view, based on the factual context, character and content of the documents
in issue, the predicted adverse effects 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.
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)).
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:
6
6
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
7
… 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.
Having satisfied myself the documents at issue are conditionally exempt under s
47E(d), I must also 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 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 for the reasons above. I have placed significant weight on this
factor as in relation to ongoing investigations and complaints, 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
agencies are less likely to actively participate in inter-agency regulatory processes. I
have also considered that disclosing information that does not represent the
Commissioner’s considered recommendation on legislative reform could jeopardise
the Commissioner’s function of reporting and recommending legislative change or
administrative action to the minister.
8
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.
Please see the following page for information about your review rights and
information about the OAIC's disclosure log.
Yours sincerely
Mark Lindsey-Temple
Senior Lawyer
6 January 2021
9
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.
10
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 will
be published on ou
r disclosure log shortly after being released to you.
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Document Outline
