ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2020/285
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Trav S
DECISION BY: Mr Peter Rush
Assistant Secretary
Parliamentary and Government Branch
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email of 13 December 2020 in which you made a request to the Department of
the Prime Minister and Cabinet (the
Department) under the
Freedom of Information Act
1982 (the
FOI Act) in the following terms:
In November 2008, the Australian Government formally accepted an offer from the
then-President of Timor-Leste for Australian personnel to accept and wear the Timor-
Leste Solidarity Medal (TLSM).
We would like to ask for a copy of the correspondence between the Timor-Leste and
Australian governments related to the TLSM's offer and acceptance.
On 11 January 2021 you agreed to an extension of time under section 15AA of the FOI Act
for the Department to issue its decision by 29 January 2021.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the Act.
Relevant documents
The Department has identified two documents relevant to the scope of the FOI request
(the
requested documents).
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
Decision
I have decided to refuse access to the requested documents, on the basis that
• they are exempt from release in full under sections 33(a)(iii) and 33(b) of the FOI
Act; and
• parts of the requested documents contain information that is conditionally exempt
under section 47F of the FOI Act and its disclosure would, on balance, be contrary to
the public interest.
Further information is in the schedule at Attachment A.
I note that Documents 1 and 2 might also be exempt from disclosure under other provisions of
the FOI Act, such as section 47C (deliberative process) and section 47E(d) (operations of an
agency) of the FOI Act. However, given I am satisfied that Documents 1 and 2 are exempt
under the abovementioned provisions of the FOI Act, I consider it is not necessary for the
purpose of this decision that I consider the application of those other exemptions in detail.
In making my decision, I have had regard to the following:
•
the terms of your request;
•
the requested documents;
•
consultation comments from the Department of Foreign Affairs and Trade;
•
the FOI Act; and
•
the ‘Guidelines made by the Australian Information Commissioner issued under
section 93A of the
Freedom of Information Act 1982’ (the
FOI Guidelines).
Reasons
Documents 1 and 2
Section 33(a)(iii) of the FOI Act – damage to the international relations of the
Commonwealth
Section 33(a)(iii) of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
(a)
would, or could reasonably be expected to, cause damage to:
…
(iii)
the international relations of the Commonwealth;
The FOI Guidelines state that:
The phrase ‘international relations’ has been interpreted as meaning the ability of the
Australian Government to maintain good working relations with other governments
and international organisations and to protect the flow of confidential information
between them. The exemption is not confined to relations at the formal diplomatic or
ministerial level. It also covers relations between Australian Government agencies
and agencies of other countries.
The mere fact that a government has expressed concern about a disclosure is not
enough to satisfy the exemption, but the phrase does encompass intangible or
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speculative damage, such as loss of trust and confidence in the Australian
Government or one of its agencies...
For example, the disclosure of a document may diminish the confidence which another
country would have in Australia as a reliable recipient of its confidential information,
making that country or its agencies less willing to cooperate with Australian agencies
in future….1
The requested documents contain information that would, or could reasonably be expected to,
cause damage to the international relations of the Commonwealth.
I am therefore satisfied that the requested documents are exempt under section 33(a)(iii) of
the FOI Act.
Section 33(b) of the FOI Act – information or matter communicated in confidence by or
behalf of a foreign government
Section 33(b) of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
…
(b)
would divulge any information or matter communicated in
confidence by or on behalf of a foreign government, an authority of a
foreign government or an international organization to the
Government of the Commonwealth, to an authority of the
Commonwealth or to a person receiving the communication on
behalf of the Commonwealth or of an authority of the
Commonwealth.
The FOI Guidelines relevantly provide as follows:
The test is whether information is communicated in confidence between the
communicator and the agency to which the communication is made — it is not a
matter of determining whether the information is of itself confidential in nature.
Information is communicated in confidence by or on behalf of another government or
authority, if it was communicated and received under an express or implied
understanding that the communication would be kept confidential. Whether the
information is, in fact, confidential in character and whether it was communicated in
circumstances importing an obligation of confidence are relevant considerations.
They may assist the decision maker to determine whether, on the balance of
probabilities, information was communicated in confidence.
The relevant time for the test of confidentiality is the time of communication of the
information, not the time of the request for access. It is irrelevant for the purposes of
the exemption that the foreign government or agency may have since reviewed the
status of the document and it is no longer confidential. The document will still be an
exempt document under the FOI Act, noting however that agencies and ministers have
1 FOI Guidelines, [5.36] – [5.38] (footnotes omitted).
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a discretion to provide access to an exempt document where the law permits (see [5.6]
above).
An agreement to treat documents as confidential does not need to be formal. A general
understanding that communications of a particular nature will be treated in
confidence will suffice. The understanding of confidentiality may be inferred from the
circumstances in which the communication occurred, including the relationship
between the parties and the nature of the information communicated.
…
Information communicated by an Australian Government agency to a foreign
government can also fall under s 33(b) if it restates information the foreign
government previously communicated to the agency in confidence.
2
I am satisfied that the requested documents contain information that was communicated in
confidence by or behalf of another Government to the Government of the Commonwealth or
to a person receiving the communication on behalf of the Commonwealth.
I am therefore satisfied that the requested documents are exempt in full under section 33(b) of
the FOI Act.
Section 47F of the FOI Act – personal information
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about any
person (including a deceased person).
‘Personal information’ under the FOI Act has the same meaning as in the
Privacy Act 1988 and means
… information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not. Section 47F(2) of the FOI Act states that in determining whether disclosure of the document
would involve the unreasonable disclosure of personal information, an agency must have
regard to the following matters:
• 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; and
• any other matters that the agency or Minister considers relevant.
The FOI Guidelines states that key factors for determining whether disclosure is unreasonable
include:
• the author of the document is identifiable;
• the document contains third party personal information;
2 FOI Guidelines, [5.42] – [5.46].
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• release of the document would cause stress on the third party; and
• no public purpose would be achieved through release.
3
I am satisfied that the requested documents contain the personal information of identified
individuals, or individuals who are reasonably identifiable. I consider that disclosure of the
personal information would be unreasonable for the following reasons:
• the personal information may not be well known;
• the persons to whom the information relates may not be known to be (or to have
been) associated with the matters dealt with in the document;
• the personal information may not be available from publicly accessible sources;
• the personal information does not appear to have been provided to Government on the
understanding that it would be made public; and
• the personal information may be sensitive.
I am therefore satisfied that the personal information in the requested documents is
conditionally exempt under section 47F of the FOI Act.
Section 11A(5) of the FOI Act – the public interest test
Section 11A(5) of the FOI Act provides that a conditionally exempt document must
nevertheless be disclosed to the applicant unless its disclosure would, on balance, be contrary
to the public interest.
In determining whether disclosure would be contrary to the public interest, the FOI Act
requires a decision-maker to balance the public interest factors in favour of disclosure against
the factors against disclosure.
Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not
take into account when deciding whether access to the document would be contrary to the
public interest:
a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in 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 documents was (or is) of high seniority in the agency to which the
request for access to the document was made; or
d) access to the document could result in confusion or unnecessary debate.
I have not taken any of the above factors into account in making my decision.
Factors in favour of disclosure
The FOI Act sets out four factors favouring disclosure which must be considered if relevant,
namely:
4
• promote the objects of the FOI Act;
• inform debate on a matter of public importance;
3 FOI Guidelines, [6.142].
4 See section 11B(3) of the FOI Act and FOI Guidelines, [6.17].
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• promote effective oversight of public expenditure; or
• allow a person to access his or her personal information.
I am satisfied that disclosure of the conditionally exempt information may promote the
objects of the FOI Act.
Factors against disclosure
The FOI Act does not provide for any public interest factors against disclosure that decision
makers may consider. The FOI Guidelines contain a non-exhaustive list of public interest
factors against disclosure that may also be relevant in particular circumstances,
5 to which
I have had regard.
I consider the following factors favour non-disclosure of the personal information in the
requested documents:
• disclosure could reasonably be expected to prejudice the protection of an individual’s
right to privacy; and
• disclosure could reasonably be expected to harm the interests of an individuals.
After careful consideration of all relevant factors, I have decided that the factor in favour of
disclosure is outweighed by the factors against disclosure.
I am therefore satisfied that disclosing the conditionally exempt information in the requested
documents would, on balance, be contrary to the public interest.
Section 22 of the FOI Act – access to edited copies with exempt or irrelevant matter deleted
Section 22 of the FOI Act provides that exempt or irrelevant information may be deleted from
a copy of a document, and access granted to such an amended copy where it is reasonably
practicable to do so, unless it is apparent that the applicant would not wish to have access to
such a copy.
As advised by the Department on 16 December 2020, it is the Department’s policy to
withhold:
• any person’s signature;
• the names and contact details of Australian Public Service officers not in the Senior
Executive Service (SES);
• the mobile or direct numbers of SES officers;
• the names and contact details of Ministerial staff at a level below Chief of Staff.
In accordance with section 22 of the FOI Act, I have excluded the parts of the requested
documents that contain the above details, and any parts of the requested documents that are
outside the scope of your request.
Processing and access charges
I have decided not to impose charges in respect of your request.
5 FOI Guidelines, [6.22].
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Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions
in relation to a request. Making a complaint about the way the Department has handled an
FOI request is a separate process to seeking review of the Department’s decision. Further
information about how to make a complaint is available at https://www.oaic.gov.au/freedom-
of-information/reviews-and-complaints/.
Yours sincerely
Peter Rush
Assistant Secretary
Parliamentary and Government Branch
29 January 2021
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