Our ref: LEX 67939 / 67941
Mr To Nguyen
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Nguyen
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 15 January 2021 and 17 January 2021, and subsequent correspondence to combine
and clarify the scope of your requests, for access to certain under the
Freedom of Information Act 1982 (
FOI Act) as follows:
all documents with dates of third-party (public) enquiries/concerns/allegations regarding conflicts of
interests in the incubator support initiative, excluding:
third party information (other than the content of enquiries/concerns/allegations);
staff names; and
duplicate documents.
Background
The department applied to the Office of the Australian Information Commissioner (
OAIC) under section
15AB of the FOI Act an extension of time for the processing of your FOI request, making the decision due on
2 March 2021. This extension was granted by the OAIC on 22 February 2021.
Decision
I am an authorised decision maker under section 23 of the FOI Act.
On the outset, I have decided not to impose any charges for the processing of your request.
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 2 documents that are relevant to your request.
These documents are described in the Schedule of Documents at
Attachment A. I have decided to grant access to the two documents in part.
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
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;
section 47F(1) of the FOI Act, as disclosure of the information would be an unreasonable disclosure
of an individual’s personal information;
section 47G of the FOI Act, as disclosure of the information would be an unreasonable disclosure of
an individual’s or an organisation’s business information; and
Section 22 of the FOI Act, as the documents contain material that is irrelevant to your request.
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 Engagement
26 February 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: To Nguyen – 17 January 2021 (LEX 67939 / 67941)
Decision Maker: Claire Forsyth, General Manager, Business Outreach & Engagement
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; and
the Guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the FOI Act (
FOI Guidelines).
2. Section 22 – Deletion of irrelevant material
2.1
Under section 22 of the FOI Act, the department may delete material from documents that it
considers irrelevant to the scope of your request.
2.2
As per our correspondence of 2 February 2021, the department considers the names and contact
details of APS staff below the SES level to be irrelevant unless informed otherwise. Accordingly,
this information has been deleted under section 22 of the FOI Act.
2.3
Further, I have identified material within the documents that you excluded from, or otherwise
does not relate to, the scope of your request. This information has also been deleted as irrelevant
under section 22 of the FOI Act.
3. Section 47E(d) – The Conduct of the Operations of an Agency
3.1
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.
3.2
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.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
3.3
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.
3.4
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
allow a person access to his or her own personal information.
3.5
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.
3.6
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.
3.7
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.
3.8
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.
3.9
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.
4. Section 47F – Personal Information
4.1
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).
4.2
The term ‘personal information’ is defined in section 4 of the FOI Act to mean:
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
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.
4.3
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.
4.4
I have decided that certain material contained in the documents is conditionally exempt under
subsection 47F(1) of the FOI Act.
4.5
The information which I have determined would be unreasonable to disclose comprises personal
information about employees of an unsuccessful grant applicant, as well as the names of
Regional Incubator Facilitators (
RIFs). This personal information is not well known or publicly
available, and the individuals to which part of the information relates are not known to be (or to
have been) associated with the matters contained in the document. I also do not consider that
any public purpose would be achieved through the release of the personal information of these
third parties.
4.6
Under subsection 11A(5) of the FOI Act, the department must 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. 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
allow a person access to his or her own personal information.
4.7
I have considered each of the factors favouring access listed 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.
4.8
I have taken into account the extent to which disclosure would prejudice the individuals'
personal privacy, and also consider that the release of personal information could cause stress
to the persons to whom the information relates.
4.9
Further, to the extent the information relates to RIFs, I have considered the previous effects of
releasing information about RIFs in response to similar FOI requests. In particular, I am mindful
that those releases has resulted in RIFs being directly contacted on their personal 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 the RIFs named in this FOI
request.
4.10 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.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
4.11 Therefore, I am satisfied that certain material in the document is 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. 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.
5. Section 47G – Business Information
5.1
Section 47G(1) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under the FOI 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 ….”
5.2
Certain material contained in the document, as relevantly identified in the schedule, concerns
information about an unsuccessful applicant, including its business name and aspects of its
application. I am satisfied that disclosure of the information would, or could reasonably be
expected to, unreasonably adversely affect the applicant in respect of its lawful business or
professional affairs, especially given it would highlight the fact that the applicant was unsuccessful
in obtaining a grant. The FOI Act does not restrict the use or further dissemination of released
material. If the information were to become more widely known, it could have a real detrimental
impact on the business, professional and/or financial affairs of the applicant, particularly in similar
grant or fundraising application processes, or otherwise in a wider business context (including
professional reputation).
5.3
Accordingly, I am satisfied that certain material contained in the document is conditionally
exempt under section 47G(1) of the FOI Act.
5.4
Subsection 11A(5) of the FOI Act requires that access to a conditionally exempt document,
including a document that is conditionally exempt under section 47G must be given to the
applicant unless disclosure of the document would, on balance, be contrary to the public
interest. I have considered section 11B of the FOI Act and Part 6 of the FOI Guidelines when
applying the public interest test.
5.5
In weighing up the public interest factors both in favour and against disclosure, I have considered
the factors favouring access set out in subsection 11B(3) of the FOI Act and the further factors and
guidance material set out in the FOI Guidelines. I have therefore considered the following factors
which may favour disclosure, including the extent to which disclosure would:
promote the objects of the FOI Act;
inform debate on a matter of public importance;
assist in the effective scrutiny of government decisions; and
promote effective oversight of public expenditure.
5.6
While I consider that disclosure may promote the objects of the FOI Act and have some relevance
to matters affecting oversight of public expenditure (insofar as it might provide some insight into
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
the basis upon which applicants were successful or unsuccessful), I do not consider that disclosure
of the business information would inform debate on a matter of significant public importance. I
consider that the public interest factors in favour of disclosure 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;
disclosure of this information would reasonably be expected to unreasonably affect a
person or organisation in respect of their lawful business affairs;
if the information were to become more widely known and used by others to frame their
grant applications, this would prejudice the integrity of such processes; and
the department's ability to effectively administer the grants program would be adversely
effected if other potential applicants were to be deterred from making applications, out
of concern that confidential information relating to unsuccessful applications, or
confidential communications with the department in relation to applications, could be
made available under the FOI Act without their consent.
5.7
Having considered the strengths of the public interest factors for and against disclosure, I am of
the view that, on balance, the public interest factors against disclosing the material in the
document outweighs those in favour of disclosure.
5.8
Therefore, I have decided that the relevant material contained in the document is conditionally
exempt from disclosure under section 47G(1) of the FOI Act, and that disclosure would be
contrary to the public interest. As noted above, I have deleted the exempt material in the
document, and decided to release the remaining material to you in accordance with
subsection 22(1) of the FOI Act.
6. Publication
6.1
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.
6.2
The document being released to you contains personal and business 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:
Onlin
e: 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 a
t 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: To Nguyen
SCHEDULE OF DOCUMENTS
Doc
Description of document
Pages
Decision
Reasons
No
1. Email
1-3
Release in part
Section 47F - Personal Information
Section 47G(1) - Business information
Section 22 – Deletion of irrelevant material
2. Email
4-11
Release in part
Section 47E(d) – The Conduct of the Operations of an Agency
Section 47F - Personal Information
Section 47G(1) - Business information
Section 22 – Deletion of irrelevant material
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
