Our ref: 67636
El ie
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear El ie
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 1 December 2020, and subsequent correspondence to clarify the scope of your
request, for access under the Freedom of Information Act 1982 (FOI Act) as fol ows:
I REQUEST under the Freedom of Information (FOI) Act from the Department of Industry, Science,
Energy and Resources (Department) document containing:
(1) the first RIF webpage [1] version published that states "Most recently Daniel was the
Australian Country Manager for one of the largest start-up accelerators in the world" and any
webpage content approvals/suggestions by Zoe Naden and Daniel Smith; and
(2) correspondence and/or documentation from Daniel Smith made available to Zoe Naden
during the tender process disclosing Daniel's engagement with MassChal enge as noted in [2];
and
(3) correspondence and/or documentation from Daniel Smith made available to any other
Department staff member during the tender process disclosing Daniel's engagement with
MassChal enge as noted in [2].
Background
On 23 December 2020 you were issued with a notice of intention to refuse the request on the basis that
the work involved would amount to a substantial and unreasonable diversion of the department’s
resources. You were invited to refine the scope of your request within 14 days.
On 23 December 2020 you provided the Department with a refined scope for your request, and were
notified on 4 January 2021 that this revised scope had been forwarded for consideration.
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 al reasonable searches have been undertaken for documents relevant to your request.
I am advised that the department has in its possession two documents that are relevant to your request.
These documents are described in the Schedule of Documents at Attachment A.
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 decided to:
grant access to one document in ful ; and
grant access to one document in part.
I have found that the requested documents contain material which is exempt under:
section 47F(1) of the FOI Act, as disclosure of the information would be an unreasonable disclosure
of an individual’s personal information; and
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.
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
5 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: ELLIE – 1 December 2020 (LEX 67636)
Decision Maker: Claire Forsyth, General Manager, Business Outreach and Engagement
1. Evidence/Material on which my findings were based
1.1 In reaching my decision, I relied on the fol owing 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 47F – Personal Information
2.1 Subsection 47F(1) of the FOI Act provides that:
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
2.2 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.
2.3 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 wel 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.
2.4 I have decided that material contained in Document 1, as identified in the Schedule of
Documents, is conditional y exempt under subsection 47F(1)of the FOI Act.
2.5 The information which I have determined would be unreasonable to disclose comprises personal
information about the tenderer and other third party individuals, including identifying
information, contact information, qualifications, work history, and information and options
about skil s and experience. This personal information is not wel 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.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
2.6 Under subsection 11A(5) of the FOI Act, the department must give you access to this
conditional y 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 fol owing 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
al ow a person access to his or her own personal information.
2.7 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 material y 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.
2.8 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.
2.9 Further, I have considered the previous effects of releasing information about Regional
Incubator Facilitators (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 wil
continue to occur if I were to release the personal information of the RIF named in this FOI
request.
2.10 Fol owing 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.
2.11 Therefore, I am satisfied that the material is of such a nature that it is conditional y 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 Document 1 and have decided to release the remaining material in
accordance with subsection 22(1) of the FOI Act.
3. Section 47G – Business Information
3.1 Section 47G(1) of the FOI Act provides that:
A document is conditional y 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 ….”
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
3.2 In addition to being personal information, certain material contained in Document 1 concerns the
tenderer's business and professional affairs. I am satisfied that disclosure of the information
would, or could reasonably be expected to, unreasonably adversely affect the tenderer in respect
of his lawful business or professional affairs. The relevant material addresses the tenderer's
response to the selection criteria, including his proposed approach to the delivery of services, and
relevant experience and skil s to meet the requirements. 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 be used by third parties in similar competitive tendering or recruitment processes,
to the possible business, professional and financial detriment of this particular tenderer.
3.3 Accordingly, I am satisfied that certain material contained in Document 1 is conditional y exempt
under section 47G(1) of the FOI Act.
3.4 Subsection 11A(5) of the FOI Act requires that access to a conditional y exempt document,
including a document that is conditional y 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.
3.5 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 fol owing 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.
3.6 While I consider that disclosure would promote the objects of the FOI Act and would have some
relevance to matters affecting oversight of public expenditure, 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 wel known and is not available from publicly-accessible resources;
no public purpose would be achieved through the release of the business information of
these people or organisations;
disclosure of this information would reasonably be expected to:
o unreasonably affect a person or organisation in respect of their lawful business
affairs; and
o potential y prejudice the Commonwealth’s ability to obtain business information
of the same or a similar nature in the future.
3.7 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
Document 1 outweighs those in favour of disclosure
3.8 Therefore, I have decided that the relevant material contained in Document 1 is conditional y
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.
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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. 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.
4.2 The documents being released to you contains personal and business information that would be
unreasonable to publish. As a result, a redacted copy of the documents wil 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 wil 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 fol owing 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 wil 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: ELLIE
SCHEDULE OF DOCUMENTS
Doc
Description of document
Pages
Decision
Reasons
No
1. Tenderer response documents
27
Exempt in part
Removed personal information under section 47F(1) and
business information under section 47G.
2. Document titled 'Regional Incubator Facilitators'
4
Released in ful
N/A
8
Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295