Our ref: LEX 67798
Mr Allan Phu
Right to Know
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Phu
Freedom of Information Act 1982 – Notice of Decision
I refer to your correspondence, received by the Department of Industry, Science, Energy and Resources
(
the department) on 19 December 2020 for access under the
Freedom of Information Act 1982 (
FOI Act) as
follows:
I'm seeking all email messages by Daniel Smith with regard to:
- Hunter Business Centre project broadly, OR
- ISI grant application with tracking number S5DN3C9P (including messages relating to the
draft version of the same application)
Background
On 18 January 2021, you were notified that in accordance with section 15(6) of the FOI Act, the time limit
for the processing of your request was extended by 30 days to allow for third party consultation.
On 19 February 2021, the Office of the Australian Information Commissioner granted the department an
extension under section 15AB of the FOI Act for the processing of your FOI request until 3 March 2021.
Decision
I am an authorised decision maker under section 23 of the FOI Act.
I am satisfied that all reasonable searches have been undertaken for documents relevant to your request.
I am advised that the department has in its possession six documents that are relevant to your request.
These documents are described in the Schedule of Documents at
Attachment A.
I have decided to refuse access to five documents, and grant access to one document in part. I have found
that the requested documents contain material which is exempt under:
section 47E(d) of the FOI Act, as disclosure would have a substantial adverse effect on the proper
and efficient conduct of the operations of an agency; and
section 47F(1) of the FOI Act, as disclosure of the information would be an unreasonable disclosure
of an individual’s personal information.
industry.gov.au
Industry House - 10 Binara Street, Canberra City, ACT 2601
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GPO Box 2013 Canberra ACT 2601 ABN: 74 599 608 295
The reasons for my decision are set out below, as required by section 26 of the FOI Act, in Part A of the
Annexure.
If you are dissatisfied with my decision, your review rights are set out in Part B of the Annexure.
Yours sincerely
Claire Forsyth
General Manager
Business Outreach and Insights Branch
2 March 2021
Enclosures
Annexure (Part A – Statement of Reasons and Part B – Review Rights)
Attachment A – Schedule of Documents
industry.gov.au
Industry House - 10 Binara Street, Canberra City, ACT 2601
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GPO Box 2013 Canberra ACT 2601 ABN: 74 599 608 295
Annexure
Part A – Reasons for Decision (section 26 FOI Act)
Request: Al an Phu – 19 December 2020 (LEX 67798)
Decision Maker: Claire Forsyth, General Manager, Business Outreach and Insights Branch
1. Evidence/Material on which my findings were based
1.1
In reaching my decision, I relied on the following information and documentary evidence:
the FOI Act;
the contents of the documents described in Attachment A;
your correspondence setting out the particulars of your request;
consultation with departmental officers as to the nature of the documents;
consultation with affected third parties as to the nature of the documents; and
the Guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the FOI Act (
FOI Guidelines).
2. Section 47E(d) – The Conduct of the Operations of an Agency
2.1
Subsection 47E(d) of the FOI Act permits an agency to conditionally exempt material in a
document in circumstances where:
… 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.
2.2
I have decided that certain material contained in the documents is conditionally exempt under
subsection 47E(d) of the FOI Act. This material is the email address of an internal point of contact
mailbox. The release of this information would have a substantial adverse effect on the conduct
of the Department's operations, specifically the Department's ability to ensure that enquiries
from departmental personnel and external stakeholders to whom the email has been provided
can be dealt with expediently. If the email address were to be released, members of the public
may attempt to make contact with Department officers the mailbox, circumventing dedicated
avenues of contact that are properly equipped manage and direct public enquiries. This would
result in the diversion of departmental resources away from handling legitimate and relevant
enquiries in the mailbox to responding to unsolicited correspondence received via the email
address.
2.3
I am satisfied that the documents are conditionally exempt because release of the documents
would involve the disclosure of information that would have a substantial adverse effect on the
proper and efficient conduct of the operations of the department. However I am required under
subsection 11A(5) of the FOI Act to give access to the information unless it would, at this time, on
balance, be contrary to the public interest.
2.4
Subsection 11A(5) of the FOI Act sets out the following factors favouring access to a document:
promote the objects of the FOI Act;
inform debate on a matter of public importance;
promote effective oversight of public expenditure; and
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
allow a person access to his or her own personal information.
2.5
The FOI Guidelines state that the public interest test is necessarily broad and is something that is
of serious concern or benefit to the public, not merely of individual interest. Access to documents
should not be given if, in the particular circumstances, there is, on balance, countervailing harm
which offsets the inherent public interest of giving access.
2.6
I have considered each of the factors favouring access listed above and I have decided that
disclosure of the material in question would not go towards promoting the object of the FOI Act,
inform debate on a matter of public importance, assist in the scrutiny of government decisions,
or promote effective oversight of public expenditure.
2.7
I consider that the public interest factors in favour of disclosure, if any were to exist, are
outweighed by the public interest factors against disclosure, namely that:
the information is not well known and is not available from publicly-accessible resources;
no public purpose would be achieved through the release of the internal email address
and phone number; and
if the information were to become more widely known and used by members of the
public to contact the department ,rather than through the proper public-facing
communications, this would unreasonably interfere with the department's ability to
direct enquiries to the appropriate area for response.
2.8
I have considered the irrelevant factors listed in 11B(4) of the FOI Act, and none of these factors
have been taken into account in deciding whether access to the documents would, on balance,
be contrary to the public interest.
2.9
Following consideration of these factors, I have decided that giving access to the information at
this time would be contrary to the public interest. Accordingly, I have deleted the exempt
material in the document and have decided to release the remaining material in accordance
with subsection 22(1) of the FOI Act.
3. Section 47F – Personal Information
3.1
Subsection 47F(1) of the FOI Act provides that:
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).
3.2
The term, ‘personal information’, is defined in section 4 of the FOI Act to mean:
information or an opinion (including information forming part of a database), whether
true or not, and whether recorded in a material form or not, about an individual whose
identity is apparent, or can reasonably be ascertained, from the information or opinion.
3.3
When determining whether the disclosure of personal information would be unreasonable,
subsection 47F(2) of the FOI Act requires me to consider:
(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; and
(d) any other matters that I consider relevant.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
3.4
I have decided that material contained in certain documents, as identified in the Schedule of
Documents, is conditionally exempt under subsection 47F(1)of the FOI Act.
3.5
The information which I have determined would be unreasonable to disclose comprises personal
information about departmental employees, Regional Incubator Facilitators and other third
party individuals. This personal information includes identifying information, contact details,
employment history, photographs and other information of a personal nature, and is not well
known or publicly available. I also do not consider that any public purpose would be achieved
through the release of the personal information of these third parties.
3.6
However, I am required under subsection 11A(5) of the FOI Act to give you access to this
conditionally exempt material unless in the circumstances it would be, on balance, contrary to
the public interest to do so.
3.7
I have considered each of the factors favouring access listed at 2.7 above. I do not consider that
disclosure of the personal information in question would go towards promoting the objects of
the FOI Act, as the FOI Act recognises the need to protect unreasonable intrusions on the
privacy of individuals. Nor do I consider that disclosure would materially inform debate on a
matter of public importance, or promote effective oversight of public expenditure. As the
personal information relates to third parties and not yourself, the fourth public interest factor is
not relevant.
3.8
I have taken into account the extent to which disclosure would prejudice individuals’ personal
privacy, and also consider that the release of personal information could cause stress to the
persons to whom the information relates.
3.9
Further, I have considered the previous effects of releasing information about other
departmental employees and contractors in response to similar FOI requests. In particular, I am
mindful that those releases has resulted in those employees and contractors being directly
contacted on their phone numbers and being targeted by public campaigns. It is reasonably
foreseeable that such harm will continue to occur if I were to release the personal information
of these individuals.
3.10 Following consideration of these factors, I have decided that in the circumstances of this
particular matter, the public interest in disclosing the personal information is outweighed by the
public interest against disclosure.
3.11 Therefore, I am satisfied that certain material in the documents are of such a nature that it is
conditionally exempt under subsection 47F(1) of the FOI Act. Furthermore, I have decided that
on balance it would be contrary to the public interest to release this information.
3.12 As Documents 1 – 5 comprise wholly exempt material, I have decided that these documents will
not be released to you. I have deleted the exempt material in Document 6 so that the remaining
material in that document can be released to you in accordance with subsection 22(1) of the FOI
Act.
4. Publication
4.1
Section 11C of the FOI Act requires agencies to publish documents released through an FOI
request on our website within 10 days of release, except in certain circumstances including
when the documents contain personal or business information that would be unreasonable to
publish.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
4.2
The documents being released to you contains information that would be unreasonable to
publish. As a result, a redacted copy of the document will be published on our disclosure log
within 10 days of it being released to you.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
Part B – Review Rights
Application for Internal Review
Section 54 of the FOI Act gives you the option to apply for a departmental internal review of my
decision. If you make an application for internal review it will be conducted by an officer of the
department (other than me) appointed by the Secretary of the department to conduct a review and
make a completely fresh decision on the merits of the case.
Application for a review of the decision must be made within 30 days after the day of receipt of this
letter, or within 15 days of receipt of the documents to which this decision relates (whichever is the
longer period). You do not have to pay any fees or processing charges for an internal review, except for
charges relating to the provision of any additional relevant material located as a result of the review
(for example photocopying). While a specific form is not required, it would assist the decision maker if
your application specifies the grounds on which you consider the decision should be reviewed.
Application for a review of a decision should be addressed to:
FOI Coordinator
Department of Industry, Science, Energy and Resources
GPO Box 2013
CANBERRA ACT 2601
or by e-mail to: xxx@xxxxxxxx.xxx.xx.
Review by the Australian Information Commissioner
If any decision on internal review were not satisfactory to you, section 54L of the FOI Act gives you the
right to apply for review of my decision by the Information Commissioner.
An application for review by the Information Commissioner may be made regardless of whether the
decision was the subject of a departmental internal review. An application for review by the
Information Commissioner must be made within 60 days of receipt of this notice. There is no fee for
review by the Information Commissioner.
You must apply in writing and you can lodge your application in one of the following ways:
Online: www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Fax: +61 2 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
An application form is available on the website at www.oaic.gov.au. Your application should include a
copy of this notice and your contact details. You should also set out why you are objecting to the
decision.
Complaints to the Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee for
making a complaint. The Australian Information Commissioner will make a completely independent
investigation of your complaint. A complaint to the Australian Information Commissioner must be
made in writing and can be lodged online using the Information Commissioner Complaint Application
form on the Australian Information Commissioner’s website at www.oaic.gov.au.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
Request for Access under the Freedom of Information Act 1982 (Cth)
Department of Industry, Science, Energy and Resources
FOI Applicant: Al an Phu
SCHEDULE OF DOCUMENTS
Doc
Description of document
Pages
Decision
Reasons
No
1. Email
Exempt in full
Page 1: Whole document exempt under section 47F
N/A
(personal information)
2. Email
N/A
Exempt in full
Pages 2-3: Whole document exempt under section 47F
(personal information)
3. Email
Exempt in full
Pages 4-5: Whole document exempt under section 47F
(personal information)
N/A
Page 4: Removed operational information under section
47E(d)
4. Email
Exempt in full
Pages 6-7: Whole document exempt under section 47F
(personal information)
N/A
Page 6: Removed operational information under section
47E(d)
5. Email and attachments
N/A
Exempt in full
Pages 8-12: Whole document exempt under section 47F
(personal information)
6. Start House Launch talking points
1-2
Released in part Pages 13-14: Removed personal information under section
47F
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
