FOI 39652

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jo (Position Number 62210326), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs

Applicant:

Julie

Decision date:

6 January 2021

FOI reference number:
FOI 39652

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Julie,
Freedom of Information Request: FOI 39652
Decision

1.  The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified two (2) documents relevant to your request.

2.  I have made a decision to grant access in part to the two (2) documents.

3.  The documents that I have chosen to grant access in part to are set out in Schedule 1,
together with applicable exemption provision. Where I have decided to grant access in part, I
have provided access to an edited copy of the documents, modified by deletions in
accordance with section 22(2) of the Freedom of Information Act 1982 (Cth) (FOI Act).

Authority to make decision

4.  I, Jo (Position Number 62210326), Assistant Director, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to
documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.

1

Summary
5.
On 7 December 2020, you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘For the purposes of the Freedom of Information Act, I seek copy of any Department
of Veterans' Affairs official document (including emails), that directs workforce
changes take place within the Information Law area (who are based in the Brisbane
office) due to COVID-19 (or similar reference to COVID or coronavirus).
I also seek copy of the COVID Safe Business Plan (or equivalent) for the Information
Law section in the Brisbane office of the Department, or if they have no such COVID
Safe Business Plan (or equivalent), copy of the COVID Safe Business Plan (or
equivalent)for the Brisbane office of the Department. If neither have a COVID Safe
Business Plan (or equivalent), then I seek copy of the Department's COVID Safe
Business Plan (or equivalent)…’
6.
On 21 December 2020, I sought your agreement to a seven (7) day extension of time under
section 15AA of the FOI Act. No response was received to this request and a decision on your
matter is due by 6 January 2020.
7.
I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the Freedom of Information (Charges) Regulations 2019.
Material taken into account
8.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the documents follows.
9.
I have taken the following material into account in making my decision.
 the terms of your request;
 the types of information and documents that are in the Department’s possession;
 the content of the document that fal within the scope of your request;
 Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
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my decision:

-  Section 11B  Public interest exemption – factors
-  Section 15  Request for Access
-  Section 22  Access to edited copies with exempt or irrelevant material deleted
-  Section 47E  Public interest conditional exemptions--certain operations of agencies;
and

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).

10.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

11.  I have decided to grant access in part to the documents within the scope of your request,
subject to the fol owing exemption in accordance with the FOI Act:

Requests may be refused if documents cannot be found, do not exist or have not been received
(section 24A)

12.  Section 24A(1) of the FOI Act provides that an agency or Minister may refuse a request for
access to a document if:

(a)
al  reasonable steps have been taken to find the document; and

(b)
the agency or Minister is satisfied that the document:
  (i)  is in the agency's or Minister's possession but cannot be found; or

(ii)  does not exist.

13.  I am satisfied that al  reasonable steps have been taken to find information relevant to part
one of your request, having regard to:

•  the terms of your request;

•  the subject matter of the documents;

•  the current and past file management systems and the practice of orderly
destruction or removal of documents;

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•  the Department’s record management systems and practices; and

•  the individuals and areas within the Department who may be able to assist with
the location of the information you seek access to.

14.  Despite the reasonable searches undertaken, the Department has been unable to identify
documents relevant to part one of your request, specifically documents (including emails)
that direct workforce changes to take place within the Information Law team. Other than the
COVID Safe Transition Plan for the Legal Services and Assurance Branch (LSAB) (Document 1)
which outlines steps the LSAB intended to take to ensure staff safety during the outbreak,
there are no other documents specific to the Information Law team.

15.  For these reasons, I am refusing this part of your request in accordance with section 24A of
the FOI Act.

Public interest conditional exemptions--certain operations of agencies (section 47E)

16.  Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to, do any of the fol owing:

(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.

17.  I have redacted the surnames of non-Senior Executive staff members within the documents
to give effect to this conditional exemption, other than the names of those non-Senior
Executive staff members whose contacts details you already have or where they are already
known to you.

18.  The release of this information could have a substantial adverse effect on the management
or assessment of personnel as wel  as an adverse effect on the proper and efficient conduct
of the operations of the agency including the inability of the Department to retain staff or
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effectively manage the wel being and safety of our staff. Relevantly, some staff have been
targeted, insulted or harassed based on disclosure of their details. This presents chal enges
in managing the welfare of staff and can affect the ongoing management and retention of
personnel by the Department.

19.  Accordingly, I have decided that parts of the documents listed as exempt in accordance with
this provision in Schedule 1, meet the criteria for this conditional exemption. Where a
document is assessed as conditionally exempt, access must be given subject to the public
interest test in accordance with section 11A(5) of the FOI Act.

20.  Where the document contains information exempt under section 47E of the FOI Act, an
edited copy has been prepared (pursuant to section 22 of the FOI Act) with these details
redacted.

Application of the public interest test:

21.  Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.

22.  In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:

(a)
disclosure would promote the objects of the FOI Act.

23.  I also considered the fol owing factors which do not favour disclosure:

(a)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the management or assessment of personnel by the Commonwealth, by
Norfolk Island or by an agency;

(b)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of an agency.

24.  I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.

25.  On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
5

Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)

26.  The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.

27.  As explained above, some of the documents subject to your request contain exempt
information. On this basis, I have prepared the documents for release by removing that
exempt material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as wel  as at Schedule 1.

Access to documents

28.  The documents released to you in accordance with the FOI Act are enclosed.

Information Publication Scheme

29.  The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.

30.  I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log which can be accessed at http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.

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Your rights of review

31.  If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a more rapid
resolution of your concerns.

Internal review

32.  Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.

33.  You can make your application for Internal Review in one of the fol owing ways:

Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

OAIC review

34.  Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:

Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx

35.  More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/

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Contact us

36.  If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:

Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Law, Legal Services and Audit Branch
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx

Yours sincerely,

Jo (Position Number 62210326)
Assistant Director
Information Law Section
Legal Services and Audit Branch

6 January 2021
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FOI 39652
Schedule 1

Schedule of documents

Applicant:

Julie

Decision date:

6 January 2021

FOI reference number:
FOI 39652

Document  Date of
Document description
Page  Decision  Exemption
reference  document
number
provision
1
N/A
COVIDSafe Transition Plan – Legal Services and Audit
17  Access  s 47E
Branch
in part
2
N/A
COVIDSafe Transition Plan – QLD Location
16  Access  s 47E
in part

9

FOI 39652
Schedule 2

Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)
requiring agencies to publish the information; and

(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.

11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:

(a)
a document of an agency, other than an exempt document; or

(b)
an official document of a Minister, other than an exempt document.

(2)
Subject to this Act, a person’s right of access is not affected by:

(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.

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 fol owing:
(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).

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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 conditional y 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 conditional y exempt document; and

(b)
an exempt document:

(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 fol owing:
(a)
promote the objects of this Act (including al  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;
(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
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(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.

15
Requests for access (as related to the requirements for requests)
Persons may request access
(1)    Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)    state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A)    The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.

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.
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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.

23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.

24A  Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent
(1)  An agency o r Minister may refuse a request for access to a document if:
(a)  al  reasonable steps have been taken to find the document; and
(b)  the agency o r Minister is satisfied that the document:
(i)  is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.

Document not received as required by contract
(2)  An agency may refuse a request for access to a document if:
(a)  in order to comply with section 6C, the agency has taken contractual measures to ensure
that it receives the document; and
(b)  the agency has not received the document; and
(c)  the agency has taken all reasonable steps to receive the document in accordance with
those contractual measures.

26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
13

(c)
give to the applicant appropriate information concerning:

(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).

47E  Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(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 general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).

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Document Outline