Internal review decision FOI 2020 10085.pdf

Our ref: FOI-2020-10085

17 March 2021

Emailed to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Anonymous

Freedom of Information request – Internal review decision
I am writing to advise you of my decision following your request for internal review of Mr Gregory
Parkhurst’s decision of 14 January 2021, to provide partial access to certain documents you
requested and to refuse access to other documents under the Freedom of Information Act 1982 (FOI
Act).

I am authorised under s 23(1) of the FOI Act to make decisions in relation to FOI requests.
Decision
1.  My decision is to affirm Mr Parkhurst’s decision dated 14 January 2021. My reasons for this
decision are outlined below.
2.  For completeness, I have identified a minor error in the original decision which I have corrected
in this decision. Whilst this does not change the documents released to you, or the deletions
applied, it does require that I amend the number of documents that we have said we released to
you in full and the document schedule.
3.  I have amended the document schedule below on page 12 of this decision. For completeness, 1
document was provided to you in full and partial access was granted to you in relation to 18
documents. This does not affect the documents which were exempted in full.
Scope of Internal Review
4.  On 14 November 2020, you requested access to ‘…any documents contained within Michael
Manthorpe’s email account containing the word ‘Knaus’…’
5.  On 14 January 2021, Mr Parkhurst advised you that he had identified 27 documents falling
within the scope of your request. Mr Parkhurst advised that he had decided to:
•  Grant you full access to 2 of these documents
•  Grant partial access to 17 documents, and
•  Exempt 8 document from disclosure in full
6.  On 15 February 2021, you requested a review of Mr Parkhurst’s decision under s 54B of the FOI
Act. In your request for review, you said, “media monitoring companies… ream Australian
taxpayers for millions of dollars each year by way of contracts entered into with government
agencies” and “while particular government agencies may have a legitimate need to monitor
events that relate to their particular policy portfolio… the Commonwealth Ombudsman has no
policy responsibility for anything.”
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au

7.  You also stated that the exemption applied under s 47F was incorrect as it did not consider
‘special circumstances’ and the exemption under s 47E relating to public interest disclosure (PID)
information was applied incorrectly.
Steps taken to identify documents within scope of request
8.  A copy of the documents within the scope of your request was identified through searching the
Ombudsman’s email account for any material relevant to your request.
9.  I have reviewed the steps taking to conduct the search and I am confident that this search was
appropriate and that all documents relevant to your request have been identified.
Reasons for decision
Material taken into account
10. I have taken the following material into account in making my review decision:
•  The scope of your FOI request made 14 November 2020
•  Mr Parkhurst’s decision dated 14 January 2021
•  Your request for internal review dated 15 February 2021
•  The contents of the documents that fall within the scope of your request
•  The views of third parties consulted by the Ombudsman’s Office under ss 27 and 27A of the
FOI Act
•  Consultation responses from other relevant agencies
•  The FOI Act, in particular ss 11, 11A, 11B, 22, 27, 27A, 47, 47E, 47F, 47G
•  The Guidelines issued by the Office of Australian Information Commissioner (FOI Guidelines)
under s 93A of the FOI Act.
11. The reasons for my decision to affirm the original decision are outlined below.
Section 47 – Trade secrets or commercially valuable information
12. Mr Parkhurst found that documents 13 to 20 inclusive were exempt in full from disclosure either
under s 47 of the FOI Act, or in the alternative, under s 47G.
13. Under s 47(1)(b) of the FOI Act, a document is exempt if it would disclose commercially valuable
information that would be, or could reasonably be expected to be, destroyed or diminished if
the information were disclosed.
14. To be exempt under this section, two criteria must apply:1
•  the document must contain information that has a commercial value either to an agency
or to another person or body, and
•  the commercial value of the information would be, or could reasonably be expected to
be, destroyed or diminished if it were disclosed.

1 See McKinnon and Department of Immigration and Citizenship [2012] AICmr 34.
2

15. I will deal with each of these criteria in turn.
Commercial value to an agency
16. In determining whether this information is commercially valuable, I have had regard to the
factors outlined in Part 5.205 of the FOI Guidelines.
17. The relevant documents contain briefings provided to the Ombudsman by a media monitoring
organisation.
18. I note that these documents were prepared by the organisation for specific agencies selected to
receive these briefings, including the Commonwealth Ombudsman, in relation to the COVID-19
pandemic. The information is only known to the organisation and these select agencies. It was
provided to this Office on the understanding that the information would not be distributed more
widely and is subject to copyright. The relevant organisation does not agree to this information
being disclosed.
19. Information may confer a competitive advantage and therefore be commercially valuable,
where it provides a benefit to an organisation’s commercial operations over a competitor. The
information contained in these briefings is unique to the organisation which prepared it and
shows the methodology used by this agency to monitor, analyse and provide insights on media
news to agencies for a fee. A specific team of analysts with the organisation compiled these
briefings over time and expended significant time and resources to create these methodologies
and the resultant product. The concept is unique to the organisation and was only made
available to specific clients. In my view, this confers a competitive advantage on the
organisation.
20. My understanding is that the methodology used in preparing these briefings is still used by the
organisation and is relevant to their day to day work. It is therefore still relevant to their
commercial activities and remains valuable.2 The news articles contained in the briefings are not
publicly available and are obtained from media organisations under a copyright agreement.
21. In my view, the commercial value here relates to the profitability or viability of a continuing
business operation or commercial activity in which an agency or person is involved.3
22. Noting the considerations above, I am satisfied that a genuine arm’s length buyer would pay to
purchase this information.
23. I am therefore satisfied that this information is commercially valuable to the organisation given
its current business model.
Disclosure would, or could reasonably, destroy or diminish commercial value
24. Turning to the second limb of s 47(1)(b) of the FOI Act, I note that in order for this limb to be
satisfied, it must be proven that disclosure would diminish or destroy the commercial value of
the information. Criticism or embarrassment will not be enough.4

2 See FOI Guidelines Part 5.205 and Re Angel and the Department of the Arts, Heritage and the Environment;
HC Sleigh Resources Ltd and Tasmania [1985] AATA 314.
3 See Re Mangan and The Treasury [2005] AATA 898; Re Metcalf Pty Ltd and Western Power Corporation
[1996] WAICmr 23.
4 FOI Guidelines Part 5.207.
3

25. In ‘OS’ and Department of Health,5 it was held that as the documents in question contained
confidential, technical and strategic information and, having accepted an arm’s length buyer
would be prepared to pay for the information, any commercial value would be destroyed or
diminished if the documents were disclosed.
26. In my view, it is reasonable to conclude that as the information reveals the specific
methodologies used by the organisation, is technical and uniquely developed by the
organisation, and is current and not otherwise available, that disclosure would diminish its
commercial value.
27. I have also taken into account that if this information were to be released, it would be published
on the website https://www.righttoknow.org.au where any individual, including representatives
of competitor organisations, would be able to access it. In my view, this would pose a risk to the
business operations of the organisation which created them. This would further diminish or
destroy the commercial value of this information.
28. For the reasons above, I have decided to affirm Mr Parkhurst’s decision to exempt in full
documents 13 to 20 from disclosure under s 47(1)(b).
Section 47G – Business information
29. In the event that the information is not exempt under s 47 of the FOI Act, Mr Parkhurst’s
contended that, in the alternative, it is conditionally exempt under s 47G of the FOI Act.
30. Under s 47G of the FOI Act, a document is exempt from disclosure where it would disclose
information about a person’s ‘business or professional affairs’ and it:
•  would, or could reasonably be expected to, adversely affect the relevant
person/organisation, in an unreasonable way, with regard to its business, commercial or
financial affairs (s 47G(1)(a)); or
•  could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of administration of a law of the
Commonwealth or a Territory or the administration of matters administered by an
agency (s 47G(1)(b)).
31. I will deal with both of these exemptions below.
32. The FOI Guidelines state that this exemption is intended to protect the interests of third parties
dealing with the government and depends on the effect of disclosure rather than the precise
nature of the information itself.6
33. The FOI Guidelines also state that: ‘the term ‘business affairs’ has been interpreted to mean ‘the
totality of the money-making affairs of an organisation or undertaking as distinct from its private
or internal affairs.’
34. I am satisfied that the relevant documents contain business information relevant to the
organisation as they relate to its role in providing a service to agencies which is unique to it and
which it profits from.
Unreasonable adverse effect on organisation’s business affairs (s 47G(1)(a))

5 'OS' and Department of Health (Freedom of Information) [2018] AICmr 46 (22 March 2018), para [19].
6 FOI Guidelines Part 6.185.
4

35. This exemption will require a balancing of public and private factors to determine whether
disclosure would be unreasonable.7
36. The briefings in the relevant documents were prepared by a third-party organisation for
government. In my view, their disclosure would affect the profitability of that organisation and
would not show how public programmes are administered.8
37. This information is relevant to the organisation’s money-making affairs9 as it is the primary
purpose of the business to provide information to government agencies on recent media
coverage. These professional services are offered for a fee. In my view, this information is
relevant to the organisation’s business affairs as distinct from their internal affairs.
38. Whilst I acknowledge that there may be some  interest in members of the public seeing
resources available to Commonwealth agencies to assist them to conduct their work, I consider
that the adverse effect on the organisation’s business affairs outweighs this interest in disclosure
such that disclosure would be unreasonable.
39. The conditional exemption in s 47G(1)(a) of the FOI Act is also subject to the public interest test.
I have dealt with this below at [44].

Prejudice future supply of information to the Commonwealth (s 47G(1)(b))
40. For this exception to apply, there must be:
•  a reasonable expectation of a reduction in the quantity or quality of business affairs
information to the government
•  the reduction will prejudice the operations of the agency.
41. In Cornerstone Legal Pty Ltd and Australian Securities and Investments Commission10  the former
Information Commissioner said:

‘The purpose of s 47G(1)(b) is to protect the workings of government, by maintaining the
flow of a particular category of information to government from external sources. …It is
implicit in s 47G(1)(b) that it can apply broadly.’
42. In my view, if these briefings were disclosed, it is reasonably likely to expect that future
organisations providing this type of service would be less willing to engage with the
Ombudsman’s Office, or other government agencies, due to the likelihood of future disclosures
and impact on their business activities.
43. I consider that this reduction in services being available to the Office to enable it to monitor
media coverage of relevance to its role and function would prejudice the operations of this
Office in being alert to matters with a high degree of public interest and which may warrant
further examination by the Ombudsman.
Public interest test
44. The conditional exemption in ss 47G(1)(a) and 47G(1)(b) of the FOI Act is subject to the public
interest test.

7 FOI Guidelines Part 6.187.
8 See comments by Forgie DP in Bell and Secretary, Department of Health (Freedom of Information) [2015]
AATA 494 [68].
9 FOI Guidelines Part 6.192.
10 [2013] AICmr 71 at 14.
5

45. In deciding whether or not release of this information is in the public interest, I have taken into
account the factors for and against disclosure outlined in the FOI Guidelines.
46. On the basis that your application is anonymous, I have assumed that disclosure of these
documents will not allow you to access your personal information. Whilst disclosure may
provide information on the resources available to the Ombudsman’s Office to assist it perform
its role, I have given minor weight to this factor as I consider that disclosure could reasonably be
expected to reveal business information, which would adversely impact on the business affairs
of the organisation.
47. Further, in my view, there is significant public interest in the ability of government agencies to
enter into commercial arrangements with organisations to assist it to perform its functions.
48. On balance, I am satisfied that disclosure would be contrary to the public interest.
49. For the reasons above, I affirm Mr Parkhurst’s decision that if the briefings provided in
documents 13 to 20 are not exempt from disclosure under s 47, that they are exempt, in the
alternative, under s 47G of the FOI Act.
Section 47E – Certain agency operations: staff member email and telephone details
50. Mr Parkhurst decided to exempt from disclosure the contact details of certain Ombudsman staff
and Department of Home Affairs (Home Affairs) staff under s 47E(d) of the FOI Act.
51. Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure would, or
could, be reasonably expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
52. Access must generally be given to a conditionally exempt document unless disclosure would be
considered contrary to the public interest (see the requirements under s 11A of the FOI Act).
53. I will deal with each of these elements in turn.
Substantial adverse effect on conduct/operations of the Ombudsman
54. The FOI Guidelines state that the term ‘substantial adverse effect’ broadly means:
‘an adverse effect which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person. The word ‘substantial’, taken in the context of substantial loss
or damage, has been interpreted as ‘loss or damage that is, in the circumstances, real or of
substance and not insubstantial or nominal’.11
55. Where an exemption under s 47E(d) is claimed, the predicted effect of disclosing the document
needs to be reasonably expected to occur.12
56. The documents relevant to this application contain the direct email and telephone contact
information of Ombudsman staff and Home Affairs staff.
57. In my view, disclosure of this information would significantly affect the ability of this Office and
Home Affairs to manage contact with members of the public at an agency level, and also an
individual officer level, which would in turn affect their operations.

11 FOI Guidelines [5.20].
12 FOI Guidelines [6.101].
6

58. The Office centrally manages contact with the public by using generic contacts details to
improve the efficiency and effectiveness of complaint handling and investigation within the
Office.
59. We have found that this has assisted the Office to manage its overall resources, such as by
allowing investigation officers to focus on more complex complaints. We understand similar
considerations are made by Home Affairs.
60. I consider that there is a significant risk that disclosure of this information could result in
unsolicited contact from members of the public directed at specific individuals. Whilst this will
affect the operation of both agencies, I also note that our Office may also be at risk of not
appropriately managing the workplace health and safety of our employees in line with our
obligations under the Work Health and Safety Act 2011.13 In the past, members of the public
have used this information to threaten or engage in unreasonable contact with members of
staff, including through social media.
61. In my view, the release of personal contact numbers and email addresses of staff members in
both agencies would undermine these public contact arrangements and would significantly
affect the operations of both agencies.
Public interest test
62. The conditional exemption in s 47E of the FOI Act is also subject to the public interest test.
63. Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance,
be contrary to the public interest’.
64. I have considered the factors for and against disclosure outlined in the FOI Guidelines.
65. In my view, the disclosure of the telephone and email details of relevant staff would arguably:
•  promote the objects of the FOI Act, including informing the public in relation to the
operations of the Ombudsman’s office, and
•  provide access to information regarding the consideration and handling of complaints.
66. However, I have given minor weight to these factors as members of the public are not prevented
from directing correspondence to a particular staff member by reason of not knowing their
direct contact details.
67. Further, to disclose this information would undermine the processes put in place by this Office
and Home Affairs to efficiently and effectively manage contact with members of the public.
68. In my view, members of the public do not experience any material disadvantage by not being
provided with the direct contact details of individual officers as they are still able to contact
these officers through the dedicated channels outlined above.
69. Release of this information would not inform debate on any matter or promote oversight of
public expenditure, and I have assumed that the deleted material is not your own personal
information as your application is made anonymously.
70. On balance, I am satisfied that disclosure would be contrary to the public interest. Therefore, I
affirm the decision to exempt staff members direct contact details from disclosure under s 47E

13 See Warren; Chief Executive Officer, Services Australia [2020] AATA 4557.
7

of the FOI Act.
Section 47E – Certain agency operations: PID investigation information
71. Document 8 contains certain information relevant to an investigation under the Public Interest
Disclosure Act 2013 (the PID Act). Mr Parkhurst found this information exempt from disclosure
under s 47E of the FOI Act.
72. As noted above, under s 47E of the FOI Act, a document is conditionally exempt if disclosure
would have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency (see s 47E(d)).
73. Section 11A(5) requires that access be given to a conditionally exempt document, ‘unless (in the
circumstances) access to the document at that time would, on balance, be contrary to the public
interest.’
Substantial adverse effect on conduct/operations of the Ombudsman
74. In my view, disclosure of this information would have a substantial effect on this Office’s
operations in terms of its functions in relation to the public interest disclosure scheme.
75. Under the PID Act and the Ombudsman Act 1976 (Ombudsman Act), the Office is authorised to
receive and investigate disclosures, and to investigate complaints about agency handling of
disclosures under the PID Scheme (PID handling complaints). We also have a role in overseeing
the PID scheme as a whole.
76. The Ombudsman investigates in private (s 8 of the Ombudsman Act) and is subject to
confidentiality provisions set out in s 35 of the Ombudsman Act. These provisions reflect the
importance of information held by this Office remaining confidential. The importance of
confidentiality in the performance of the Ombudsman’s PID functions is underscored by the
secrecy provisions in the PID Act (see ss 20 and 65) which make it an offence for a person (such
as an officer of the Ombudsman’s Office) to disclose the identity of a discloser, or to disclose
information obtained as a result of performing a function or exercising a power under the PID
Act. I note that PID information is specifically locked down to authorised members of the
Ombudsman’s Office and is kept confidential from other members of staff.
77. If this information were disclosed, it would reasonably undermine the confidence in this Office’s
performance of its functions and responsibilities under the PID scheme, including in overseeing
the scheme and would hinder the ability of this Office to effectively perform its function.
78. In my view, the effect of disclosing this information would be twofold on the Ombudsman’s
operations. Firstly, this could discourage further public interest disclosures from being made to
us by disclosers, or complaints being made to our Office about other disclosure investigations by
agencies, if their identity or details of their disclosures were to be revealed. Second, it would
discourage agencies from providing our Office with information in response to an investigation if
they knew the information would be made public.
79. For these reasons, I agree that this information should be exempt from disclosure under s 47E.
Public interest test
80. The conditional exemption in s 47E of the FOI Act is also subject to the public interest test.
81. Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance,
be contrary to the public interest’.
8

82. I have considered the factors for and against disclosure outlined in the FOI Guidelines.
83. In my view, on balance, disclosure of this information would be contrary to the public interest.
84. This is because disclosure would affect the willingness of agencies to co-operate with future
investigations and potentially discourage disclosers from coming forward with allegations of
disclosable conduct.
85. On the basis that your application is anonymous, I have assumed that this information is not
your personal information. Disclosure would also not promote oversight of public expenditure.
86. Further, in my view, disclosure would be inconsistent with the provisions of the Ombudsman Act
around confidentiality and the secrecy provisions outlined in the PID Act which make it an
offence to identify a discloser or reveal information obtained as a result of an investigation or
the performance of a function or exercise of a power under the PID Act (see ss 20 and 65).
87. For these reasons, I affirm Mr Parkhurst’s decision to exempt this information from disclosure.
Section 47F – Personal privacy: names of staff members
88. The documents relevant to this application contain personal information in the form of full
names of certain Ombudsman officers and Home Affairs staff.
89. Under s 47F of the FOI Act, documents may be exempt from disclosure where it would involve
an unreasonable disclosure of a person’s personal information.
90. The FOI Guidelines outline at Part 6.124 that this exemption exists to protect the personal
privacy of individuals.
Personal information
91. Under s 4 of the FOI Act,14 personal information is defined as information or an opinion about an
identified individual, or an individual who is reasonably identifiable, whether the information or
opinion is true or not and whether in material form or not.
92. I consider that the relevant information constitutes personal information under the definition
set out in s 4 of the FOI Act and that the identity of the relevant individuals is reasonably
ascertainable from the relevant information.
93. On the basis that your application is anonymous, I have assumed that the exemptions applied do
not relate to your personal information.
Unreasonable to disclose
94. Under s 47F(2) of the FOI Act, in determining whether disclosure of personal information would
be unreasonable, I must have regard to the following:
•  the extent to which 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 that are relevant.

14 As defined in s 6 of the Privacy Act 1988.
9

95. The information here is not well known and is not generally known to be associated with these
individuals. It is not publicly available or otherwise widely known. I have not consulted these
individuals about the release of their personal information.
96. In my view, it would be unreasonable to disclose this personal information.
97. In Warren; Chief Executive Officer, Services Australia [2020] AATA 4557 the Deputy President
Forgie considered the ‘special circumstances’ test set out at Part 6.153 of the FOI Guidelines, but
determined that this test was not necessarily relevant to the application of the exemption in s
47F of the FOI Act.
Public interest test
98.
Section 11A of the FOI Act provides that while an agency must give a person access to a
document if it is conditionally exempt, access may be refused if the document’s disclosure
would, on balance, be contrary to the public interest.
99.
I have not identified any relevant public interest factors favouring disclosure, particularly as I
have assumed the personal information is not your own and it does not relate to public
expenditure.
100.  In relation to the public interest factors against disclosure, I consider that disclosure could
reasonably be expected to prejudice the protection of an individual’s right to privacy. I have
given significant weight to this factor given the submissions made by Home Affairs. In my
view, disclosing this information could also be reasonably expected to result in certain
inefficiencies for both agencies in managing contact from members of the public which would
affect their operations.
101.  On balance, I am satisfied that disclosure would be contrary to the public interest.
102.  Therefore, I have decided to affirm the decision to exempt this information from the relevant
documents on the basis of s 47F of the FOI Act.
Section 22 – Deletion of exempt / irrelevant matter
103.  Section 22 of the FOI Act allows an agency to delete exempt or irrelevant matter from a
document which is otherwise relevant to an applicant’s FOI request, and to provide an
applicant with access to an edited copy.
104.  As I have found that parts of the documents falling within the scope of your request contain
information which is conditionally exempt, I agree with the decision to delete that information
accordingly.
Review rights
105.  If you are dissatisfied with my internal review decision, you may apply to the Office of the
Australian Information Commissioner (OAIC) for review.
106.  An application for review by the OAIC must be made in writing within 60 days of the date of
this letter and be lodged in one of the following ways:
•  online at
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
•  via email to xxxxx@xxxx.xxx.xx
•  by mail to GPO Box 5218 Sydney NSW 2001
•  via fax to 02 9284 9666
10

107.  More information about the OAIC review is available on its website. Go to
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/
108.  If you have any questions about this letter, you may contact via email at
xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on 1300 362 072.
109.  I have enclosed with this letter a documents schedule in relation to this decision (Attachment
A) and relevant sections of the FOI Act (Attachment B).

Yours sincerely

Fiona Annetts

Lawyer
Legal Team
Commonwealth Ombudsman
Phone:   1300 362 072
Email:     xxxxxxxxx@xxxxxxxxx.xxx.xx
Website: ombudsman.gov.au

Influencing systemic improvement in public administration

11

Attachment A – Schedule of documents

Schedule of documents for: Anonymous, Ombudsman's reference: FOI-2020-10085



Item  Description
Date
Original
Decision
no.
decision
on review


1.  Ombudsman’s internal email

27/11/2017  Deletions ss
Affirmed
47F, 47E
2.   Ombudsman’s internal email
26/06/2019  Deletions ss
Affirmed
47E, 22
3.   Ombudsman’s internal email
1/07/2019
Deletions ss
Affirmed

47E, 22
4.   Ombudsman’s internal email
5/07/2019
Deletions ss
Affirmed

47F, 47E, 22
5.   Ombudsman’s internal email
9/07/2019
Deletions ss
Affirmed

47F, 47E, 22
6.   Ombudsman’s internal email
29/11/2019  Deletions ss
Affirmed

47F, 47E
7.  Ombudsman’s internal email
17/08/2020  Deletions under  Affirmed

s 22
8.  Ombudsman’s internal email
17/08/2020  Deletions ss
Affirmed

47F, 47E, 22
9.  Ombudsman's internal email
11/08/2020  Deletions ss
Affirmed

47F, 47E, 22
10.  Ombudsman's internal email
27/06/2020  Deletions ss
Affirmed

47F, 47E, 22
11.  Ombudsman's internal email
29/11/2019  Deletions ss
Affirmed

47F, 47E, 22
12.  Email received by Ombudsman on  28/10/2020  Deletions under  Affirmed
28 October 2020 (contains article
s 22
by A.J Brown)

13.   Ombudsman’s morning briefing
29/05/2020  Exempt s 47 or s  Affirmed
47G
14.  Ombudsman’s morning briefing
21/08/2020  Exempt s 47 or s  Affirmed
47G
15.   Ombudsman’s daily briefing
24/03/2020  Exempt s 47 or s  Affirmed
47G
16.  Ombudsman’s daily briefing
25/05/2020  Exempt s 47 or s  Affirmed
47G
17.  Ombudsman’s morning briefing
5/05/2020
Exempt s 47 or s  Affirmed
47G
18.  Ombudsman’s morning briefing
7/04/2020
Exempt s 47 or s  Affirmed
47G
12

19.  Ombudsman’s morning briefing
9/04/2020
Exempt s 47 or s  Affirmed
47G
20.  Ombudsman’s morning briefing
27/03/2020  Exempt s 47 or s  Affirmed
47G
21.  Email received by Ombudsman 5
5/08/2020
Deletions under  Affirmed
August 2020 (contains NGO
s 22
submission)

22.  Ombudsman’s internal email
26/06/2019  Deletions under  Affirmed
s 22
23.  Ombudsman’s internal email
29/11/2019  Deletions ss
Affirmed
47F, 47E
24.  Ombudsman’s internal email
27/06/2020  Deletions under  Affirmed
s 47F
25.  Ombudsman’s internal email
5/12/2019
Deletions ss
Affirmed
47F, 47E, 22
26.   Email from Ombudsman to Mr
29/11/2019  Deletions under  Affirmed
Knaus
s 47E
27.  Email from Ombudsman to Mr
1/07/2019
Disclosed under  Affirmed
Knaus
FOI

13

Attachment B – relevant FOI Act provisions
11A  Access to documents on request
Scope
(1) This section applies if:
(a)  a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:

(i) a document of the agency; or

(ii) an official document of the Minister; and

(b)  any charge that, under the regulations, is required to be paid before access is given has
been paid.
(2) This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents,
for example the following:
(a)  section 12 (documents otherwise available);
(b)  section 13 (documents in national institutions);
(c)  section 15A (personnel records);
(d)  section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act,
subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a
particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act,
whether or not in response to a request (see section 3A (objects—information
or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt
at a particular time unless (in the circumstances) access to the document at that time would, on
balance, be contrary to the public interest.
Note 1:  Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:  A conditionally exempt document is an exempt document if access to the
document would, on balance, be contrary to the public interest (see
section 31B (exempt documents for the purposes of Part IV)).
Note 3:  Section 11B deals with when it is contrary to the public interest to give a
person access to the document.
(6)  Despite subsection (5), the agency or Minister is not required to give access to the document at a
particular time if, at that time, the document is both:

(a) a conditionally exempt document; and

(b) an exempt document:
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(i)  under Division 2 of Part IV (exemptions); or

(ii)  within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
11B  Public interest exemptions—factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt
document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:

(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);

(b) inform debate on a matter of public importance;

(c) promote effective oversight of public expenditure;

(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document
would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;

(aa) access to the document could result in embarrassment to the Government of Norfolk
Island or cause a loss of confidence in the Government of Norfolk Island;

(b) access to the document could result in any person misinterpreting or misunderstanding
the document;

(c) the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made;

(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5)  In working out whether access to the document would, on balance, be contrary to the public
interest, an agency or Minister must have regard to any guidelines issued by the Information
Commissioner for the purposes of this subsection under section 93A.
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22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and

(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access
to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be
regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having
regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the
applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:

(a) prepare the edited copy as mentioned in paragraph (1)(b); and

(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:

(a) that the edited copy has been prepared; and

(b) of the grounds for the deletions; and

(c) if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole
document unless the applicant requests the agency or Minister to give the applicant a notice in
writing in accordance with that section.
document unless it would be contrary to the public interest (see section 11A).
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47 Documents disclosing trade secrets or commercially valuable information
(1) A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed.
(2) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in
respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an undertaking where the person making the request is the
proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an organisation where the person making the request is
the organisation or a person acting on behalf of the organisation.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or (d) a local government authority.
47E  Public interest conditional exemptions—certain operations of agencies
  A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;

(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;

(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth, by Norfolk Island or by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
Note: Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).
47F Public interest conditional exemptions—personal privacy
General rule
(1)  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).
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(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:

(a) the extent to which the information is well known;

(b) 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;

(c) the availability of the information from publicly accessible sources;

(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person
for access to a document by reason only of the inclusion in the document of matter relating to
that person.
47G Public interest conditional exemptions—business
(1) A document is conditionally exempt if its disclosure under this Act would disclose information
concerning a person in respect of his or her business or professional affairs or concerning the
business, commercial or financial affairs of an organisation or undertaking, in a case in which the
disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in
respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an
agency.
(2) Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
(3) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in
respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an undertaking where the person making the request is the
proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an organisation where the person making the request is
the organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
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(d) a local government authority.
(5) For the purposes of subsection (1), information is not taken to concern a person in respect of the
person’s professional affairs merely because it is information concerning the person’s status as a
member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).

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