ONE NATIONAL CIRCUIT
FOI
BARTON
FOI/2021/021
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Ley S
DECISION BY:
Petra Gartmann
Assistant Secretary
Legal Policy Branch
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Ley S
I refer to your email, dated 18 February 2021, in which you made a request to the Department of
the Prime Minister and Cabinet (the
Department) under the
Freedom of Information Act 1982 (Cth) (the
FOI Act) in the following terms:
under the FOI Act, I seek a copy of any document contained in the sent folder (current or
archived) of Phil Gaetjens’ email client or Mr Gaetjens’ WhatsApp and Signal accounts
that contains the word ‘Brittany’.
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 FOI Act.
Searches for relevant documents
The Department has identified one document within the scope of your request (the
requested
document).
Decision
I have decided to refuse access, in full, to the requested document, on the basis that it contains
information that is conditionally exempt under sections 47C (deliberative matter) and 47F
(personal information) of the FOI Act, and its disclosure would, on balance, be contrary to the
public interest.
Further information is set out in the Schedule at
Attachment A to this decision.
In making this decision, I have had regard to the following material:
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
link to page 2
• the FOI request;
• the requested document;
• the FOI Act;
• the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (the
FOI Guidelines); and
•
Thomas and Secretary, Department of Defence (Freedom of Information) [2018]
AATA 604 (
Thomas).
Section 47C of the FOI Act – deliberative material
Section 47C(1) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative 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:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Paragraph 6.63 of the FOI Guidelines provides that:
‘‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’ and
‘consultation and deliberation’ that is recorded or reflected in a document. There is no
reason generally to limit the ordinary meanings given to the words ‘opinion, advice or
recommendation, consultation or deliberation’.
Paragraph 6.59 of the FOI Guidelines further provides that:
‘‘Deliberative process’ generally refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of
reflection, for example, upon the wisdom and expediency or a proposal, a particular
decision or a course of action.’
Section 47C(2)(b) of the FOI Act provides that deliberative matter does not include purely factual
material.
On purely factual material, paragraphs 6.71 to 6.73 of the FOI Guidelines provide that:
A conclusion involving opinion or judgement is not purely factual material. Similarly, an
assertion that something is a fact may be an opinion rather than purely factual material.
Conversely, when a statement is made of an ultimate fact, involving a conclusion based on
primary facts which are unstated, such a statement may be a statement of purely factual
material.
‘Purely factual material’ does not extend to factual material that is an integral part of the
deliberative content and purpose of a document, or is embedded in or intertwined with the
deliberative content such that it is impractical to excise it.1
1 FOI Guidelines, [6.71] – [6.73].
2
I consider that the requested document contains deliberative matter. I also find that the requested
document does not contain ‘purely factual material’.
Accordingly, I am satisfied that the requested document is conditionally exempt from release in
accordance with section 47C of the FOI Act.
Section 47F Public interest conditional exemption —personal privacy
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).
The term ‘personal information’ has the same meaning as it has in the
Privacy Act 1988 (the
Privacy Act). Section 6(1) of the Privacy Act
defines ‘personal information’ to mean:
‘… 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;
(b) whether the information or opinion is recorded in a material form or not.’
Paragraph 6.131 of the FOI Guidelines provides that:
What constitutes personal information will vary, depending on whether an individual can
be identified or is reasonably identifiable in the particular circumstances. For particular
information to be personal information, an individual must be identified or reasonably
identifiable.
Section 47F(2) of the FOI Act provides that in determining whether the disclosure of personal
information would be unreasonable, 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 considers relevant.
Paragraph 6.142 of the FOI Guidelines states that key factors for determining whether disclosure
is unreasonable include:
• the author of the document is identifiable;
• the documents contain third party personal information;
• release of the documents would cause stress on the third party; and
• no public purpose would be achieved through release.
Paragraph 6.143 of the FOI Guidelines also provides other factors that may be relevant to whether
disclosure of personal information would be unreasonable under section 47F of the FOI Act,
including the following factors:
• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
3
I consider that the requested document contains personal information of an individual.
I also find that disclosure of the requested document would be unreasonable, for the following
reasons:
• the author of the document is identifiable;
• the document contains third party personal information;
• the individual concerned is likely to oppose disclosure of their personal information;
• the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act.
I am therefore satisfied that the requested document is also conditionally exempt from release in
accordance with section 47F of the FOI Act.
Public Interest
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.
Factor in favour of disclosure
In my view, the particular factor in favour of disclosure is that disclosure would promote the
objects of the FOI Act.
Factors against disclosure
The FOI Act does not provide for any public interest factors weighing against disclosure that
decision makers may consider. However, in determining whether disclosure would be contrary to
the public interest, I have had regard to the FOI Guidelines. The FOI Guidelines contain a non-
exhaustive list of factors that, depending on the circumstances of the case, may be against
disclosure.
In
Thomas and Secretary, Department of Defence (Freedom of Information) [2018] AATA 604
(
Thomas), the Administrative Appeals Tribunal (
AAT) considered whether the disclosure of text
messages between two senior Defence officials would be in the public interest. The AAT noted it
4
was common ground that disclosure of the text messages would disclose “deliberative matters”. In
applying the public interest test, the AAT emphasised the distinction between what is of interest to
the public and the public interest. The AAT held that, whilst the text messages were potentially of
interest to the public, providing access to those text messages, on balance, would be contrary to
the public interest.
In relation to the application of section 47C of the FOI Act to the requested document, I consider
that
Thomas is analogous to the current matter. The information contained in the requested
document may be of interest to the public, but it does not necessarily follow that its disclosure
would be in the public interest. Disclosure of the requested document would not disclose any
information of a nature that would benefit the wider public interest, nor would it provide
information that would inform public debate.
In relation to the application of section 47F of the FOI Act to the requested document, I consider
that the factors against disclosure in this matter are that its disclosure:
a) could reasonably be expected to prejudice the protection of an individual’s right to
privacy; and
b) could reasonably be expected to harm the interests of an individual or group of individuals.
After careful consideration of all relevant factors, I have decided that the public interest factors
against disclosure of the requested document outweigh the public interest factors favouring its
disclosure. Therefore, I have found the requested document to be exempt, in full, from disclosure.
Processing and access charges
I have decided not to impose charges for the processing of your request.
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/information-
commissioner-review/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions in
relation to this decision. 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 a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/make-an-foi-complaint/.
Petra Gartmann
Assistant Secretary
Legal Policy Branch
9 April 2021
5
FOI REQUEST: FOI/2021/021
SCHEDULE OF DOCUMENTS
FOI
Document
Description
Decision
1
Electronic message
Exempt from release under s47C and s47F of the FOI Act.
Document Outline
