DEFENCE FOI 355/20/21 STATEMENT OF REASONS UNDER THE FREEDOM OF
INFORMATION ACT
1.
I refer to the application by Mr Brayden Pearce under the
Freedom of Information
Act 1982 (FOI Act) for access to:
“I am requesting information and media on the ejection/aborted take-off of the RAAF Super
Hornet (A44-223) which occurred on the 8th of December 2020.
An un/declassified report/documents on the investigation, timeline, cause, and outcome would
be satisfactory. In addition to any videos/pictures of the ejection/aborted take off.”
FOI decision maker
2.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision
on this FOI request.
Documents identified
3.
I have identified one document as matching the description of the request.
Decision
4.
I have decided to deny access to one document under section 22 [access to edited
copies with exempt or irrelevant matter deleted] of the FOI Act on the grounds that the
deleted material is considered exempt under section 47C [public interest conditional
exemptions – documents subject to deliberative processes].
Material taken into account
5.
In making my decision, I had regard to:
a.
the terms of the request
b.
the content of the identified document in issue
c.
relevant provisions in the FOI Act
d.
the Guidelines published by the Office of the Australian Information Commissioner
under section 93A of the FOI Act (the Guidelines)
e.
advice received from relevant officers within the Department of Defence.
Reasons for decision
Section 47C – Public interest conditional exemptions-deliberative processes
6.
Section 47C(1) of the FOI Act provides that a document is conditionally exempt if its
disclosure under the FOI Act would disclose matter in the nature of, or relating to, opinion,
advice or recommendation obtained, prepared or recorded, or consultation or deliberation that
has taken place, in the course of, or for the purposes of, the deliberative processes involved in
the functions of an agency.
Defending Australia and its National Interests
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7.
In accordance with the Guidelines, ‘deliberative process’ generally refers to the
process of weighing upon evaluating competing arguments or consideration or to thinking
processes – the process of reflection, for example, upon the wisdom and expediency of a
proposal, a particular decision or a course of action. The only consideration is whether the
document includes content of a specific type, namely deliberative matter. While identifiable
harm resulting from disclosure is not a specific factor in determining whether a document
may be categorised as ‘deliberative’, it may be relevant subsequently when deciding where
the balance of the public interest lies.
8.
The document contains material about the incident involving the ejection and aborted
take-off of the Super Hornet A44-223. This incident is subject to an ongoing investigation by
the Defence Aviation Safety Bureau. The Defence forming process is dealing with the merit
of particular issues, and proposing options for consideration closely intertwined with factual
information.
9.
Premature release of any information pertaining to the assessment and analysis of the
incident would reasonably be expected to prejudice the outcome of the investigation. This is
also extended to any media or photos not already in the public domain. There is a risk, if the
document was released, that Defence would have options curtailed by the premature release
of sensitive considerations, with a resultant detrimental impact on planning and
implementation of future Defence capabilities.
10.
Release of the deliberative matter contained in the document would harm the smooth
operation of Defence business including the ability for Defence to present and communicate
frank preliminary advice at the highest levels to the Government.
11.
Taking the above into consideration, I am satisfied that this information contained in
these documents is conditionally exempt under section 47C of the FOI Act.
Section 11B - Public interest exemptions-factors
12.
In assessing whether disclosure is on balance, contrary to the public interest, I
considered the Guidelines together with a range of factors set out in section 11B(3) of the FOI
Act, which favours access to a document:
(a)
promote the objects of this Act (including all 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.
13.
While I accept there is a public interest in ensuring that Defence undertakes its
functions in a transparent and proper manner, there is also a public interest in maintaining the
confidentiality of some material contained in the document while it is still in the deliberative
stages. Additionally, I do not consider that disclosure of the material would promote oversight
of public expenditure.
14.
I consider that there is a strong public interest in preventing an adverse effect on the
ability of Defence to both receive and prepare
frank advice, the premature release of which
could impede the effective completion of the matters under deliberation.
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15.
After weighing all of the above, I consider that, on balance the public interest factors
against disclosure outweigh the factors for disclosure of the conditionally exempt material in
the documents. Accordingly, I have decided that the specific material is exempt under section
11B(3) of the FOI Act.
Digitally signed by
peter.davies5
Date: 2021.03.12
16:21:16 +11'00'
PR Davies, CSC
Group Captain
Accredited Decision Maker
Royal Australian Air Force
