Ref: LEX-22229
Ms Eleanor Ryan
Via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Ryan,
Decision on your Freedom of Information request
I refer to your revised request, received by the Department of Agriculture, Water and the
Environment (
department) on 13 April 2021 for access under the
Freedom of Information Act
1982 (Cth) (
FOI Act) to the following documents:
Copies of the applications made to protect Mount Panorama/Wahluu under sections 9
and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act. Specifically:
• Only including information provided by the applicant Aboriginal Corporation.
• any reports carried out, excluding the one by Extent Heritage;
• Not including any third-party information; and
• Not including any culturally sensitive information.
My decision
The department holds 12 documents (totalling 180 pages) that relate to your request.
I have decided to:
• grant you
full access to 4 documents (documents 1e, 1g, 1h, and 1i);
• grant you
part access to 7 documents (documents 1, 1c, 1d, 1f, 2, 3, 4) with some of the
content removed;
• redact 1 document in full as due to extensive redactions being applied, has left only a
skeleton of the former document which conveys little of its content or substance and
would be of little or no value to release (document 5); and
• redact
2 documents in full under section 22(1)(a)(ii) as out of scope, as I consider, based
on submissions received from a third party that these documents are culturally sensitive
(documents 1a and 1b).
I note that your request specifically excludes information that is culturally sensitive or that is
personal and/or business information of third parties. There is material contained in the
relevant documents that is culturally sensitive and there is material contained in the relevant
documents that is personal and business information about third parties. This information has
been redacted from the documents as out of scope. Documents 1a and 1b are considered
culturally sensitive in their entirety and therefore have been these documents have been deleted
as out of scope. Please note that I have interpreted third party information as being information
of a third party other than the original applicant who lodged the not being the applications made
to protect Mount Panorama/Wahluu under sections 9 and 10 of the Aboriginal and Torres Strait
Islander Heritage Protection Act. Information related to the applicant which has been redacted
has not been done so as being out of scope.
T +61 2 6272 3933
18 Marcus Clarke Street
GPO Box 858
awe.gov.au
F +61 2 6272 5161
Canberra City ACT 2601
Canberra ACT 2601
ABN 34 190 894 983
I have decided to delete in full document 5 which, due to extensive redactions being applied, has
left only a skeleton of the former document which conveys little of its content or substance and
would be of little or no value to release (see paragraph 3.98 of the Guidelines and
Paul Farrell
and Australian Customs and Border Protection Service [2015] AICmr52).
I have decided that certain parts of documents, that you have requested are exempt under the
FOI Act as the information is personal information about another person.
Please see the schedule at
Attachment A to this letter for a detailed list of the documents and
the reasons for my decision.
Charges
On 15 April 2021, the department made a preliminary estimate of the charges applicable to your
request in the amount of $338.55. On 19 April 2021, the department received payment in full.
I have assessed the charge under Regulation 10 of the
Freedom of Information (Charges)
Regulations 2019 and the cost of processing your request was less than the amount estimated
being $291.43 which will result in a refund of $47.12. Accordingly, I have included a refund form
to this decision for this amount to be refunded to you upon return of this form.
How we will send your documents to you
The documents are attached.
You can ask for a review of my decision
If you wish to seek an internal review, you must apply to the department within
30 days after
the day you are notified of this decision. An application for internal review must be made in
writing by post to the FOI Officer or emai
l to xxx@xxx.xxx.xx.
Alternatively, you may apply directly to the Office of the Australian Information Commissioner
(
OAIC) to review my decision. An application for review by the Information Commissioner must
be made in writing within
60 days after the day you are notified of this decision. You can also
make a complaint to the Information Commissioner if you have concerns about how the
department handled your request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC websi
te www.oaic.gov.au or phone the OAIC on 1300 363 992.
Further assistance
If you have any questions, please emai
l xxx@xxx.xxx.xx. Yours sincerely
James Barker
Assistant Secretary
Heritage Reef and Wildlife Trade, Heritage Division
24 May 2021
2
Attachment A
LIST OF DOCUMENTS FOR RELEASE
LEX-22229
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1
1-11
8 February Section 10 Application – Oral Application
Release in part
s 47F(1)
Page 2, 11: personal information deleted
2019
Transcript
under s 47F(1).
Page 2- 5, and 8- 10: culturally sensitive
and third-party personal information
deleted under s 22(1)(a)(ii) (out of scope).
1c
12-14
9 October
Correspondence to Bathurst Regional Council Release in part
s 47F(1)
Page 12-14: personal information deleted
2019
regarding the MOU
under s 47F(1).
Page 12-13: culturally sensitive and third-
party personal information deleted under
s 22(1)(a)(ii) (out of scope).
1d
15
15 March
Correspondence - letter to editor re Go Kart
Release in part
s 47F(1)
Page 15: personal information deleted
2019
track on Wahluu
under s 47F(1).
Page 15: information deleted under s 22
(1)(a)(ii) (out of scope).
1e
16-54
16 April
Report - Aboriginal cultural heritage values in Release in full
N/A
Page 16-54: culturally sensitive
2021
the Central West Catchment
information deleted under s 22(1)(a)(ii)
(out of scope).
T +61 2 6272 3933
18 Marcus Clarke Street
GPO Box 858
awe.gov.au
F +61 2 6272 5161
Canberra City ACT 2601
Canberra ACT 2601
ABN 34 190 894 983
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1f
55-57
12 July
Correspondence to Bathurst Regional Council Release in part
s 47F(1)
Page 55, 57: personal information deleted
2017
under s 47F(1).
Page 55-57: third party personal
information deleted under s 22 (1)(a)(ii)
(out of scope).
1g
58-91
8 February Report - 1985 Assessment of the Prehistoric
Release in full
N/A
Page 58-61, 63-64, 67-91: third party
2019
Heritage in the Evans Shire
personal information deleted under
s 22(1)(a)(ii) (out of scope).
1h
92-127
8 February Report - Typed articles relating to the
Release in full
N/A
Page 92-99, 101-102, 104-105, 107, 113-
2019
Aborigines principally archaeological sites of
117, 121: third party personal information
Bathurst district
deleted under s 22(1)(a)(ii) (out of scope).
1i
128-165
8 February Report - An archaeological survey of the
Release in full
N/A
Page 128, 131, 134, 138, 142: third party
2019
proposed electricity commission
personal information deleted under
transmission line between Bathurst-Raglan-
s 22(1)(a)(ii) (out of scope).
Mount Panorama
2
166-173
20
Section 9 Application - Oral application
Release in part
s 47F(1)
Page 168: personal information deleted
December
transcript
under s 47F(1).
2018
Page 168-173: culturally sensitive and
third-party personal information deleted
under s 22(1)(a)(ii) (out of scope).
3
174-176
8 February Correspondence - Applicant letter to Western Release in part
s 47F(1)
Page 174, 176: personal information
2019
Advocate Bathurst
deleted under s 47F(1).
Page 175: third party personal information
deleted under s 22(1)(a)(ii) (out of scope).
2
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
4
177-180
16 October Email Correspondence - Complaint re
Release in part
s 47F(1)
Page 177-180: personal information
2019
Bathurst Regional Council
deleted under s 47F(1).
Page 177-180: culturally sensitive and
third-party personal information deleted
under s 22(1)(a)(ii) (out of scope).
5
181-187
5
Email Correspondence - Exchange between
N/A
N/A
Page 1, 2, 3, 7: information deleted under s
November Applicant and Department of Environment
22(1)(a)(ii) (out of scope).
2019
1a
N/A
30 January Anthropology Summary Report
N/A
N/A
Page 188-214: document deleted as
2019
culturally sensitive under s 22(1)(a)(ii)
(out of scope).
1b
N/A
8 February Contemporary Wiradjuri Views Report
N/A
N/A
Page 215-253: document deleted as
2019
culturally sensitive under s 22(1)(a)(ii)
(out of scope).
3
REASONS FOR DECISION
What you requested
Original request dated 14 March 2021
‘Copies of the applications made to protect Mount Panorama/Wahluu under sections 9
and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.’
Request consultation process
On 31 March 2021, I wrote to you providing a notice of intention to refuse your request under
section 24AB(2) of the FOI Act as your request was too big to process. I gave you an opportunity
to consult with the department to revise your request so as to remove the practical refusal
reason. Specifically, the department suggested distinguishing the type of documents you were
seeking or could exclude (e.g. Archaeological reports, Ethnographic reports, correspondence),
adding a short and specific timeframe for which you are seeking the documents for; and seeking
to exclude culturally sensitive/ confidentiality information.
On 13 April 2021, you revised the scope of your request to be:
Copies of the applications made to protect Mount Panorama/Wahluu under sections 9
and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.
• Only including information provided by the applicant Aboriginal Corporation.
• any reports carried out, excluding the one by Extent Heritage;
• Not including any third-party information; and
• Not including any culturally sensitive information.
On 24 March 2021 the department acknowledged your original request and advised you that we
would not include personal details about our staff. You did not contact the department again
about this. Staff details have therefore been deleted in accordance with section 22(1)(a)(ii) of
the FOI Act.
What I took into account
In reaching my decision, I took into account:
• your original request dated 14 March 2021 and your revised request on 13 April 2021;
• other correspondence with you on 9 April 2021 and 12 April 2021;
• the documents that fall within the scope of your request;
• consultation with third parties about documents which contain information concerning
them;
• information about:
o the nature of the documents; and
o the department’s operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain or parts of documents that you requested are exempt under the FOI
Act. My findings of fact and reasons for deciding that an exemption applies to those documents
are discussed below.
Section 47F of the FOI Act - unreasonable disclosure of personal information
I have applied the conditional exemption in section 47F(1) to parts of documents 1, 1c, 1d, 1f, 2,
3, and 4.
Section 47F of the FOI Act relevantly provides:
'(1) 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).
(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(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;
(d) any other matters that the agency or Minister considers relevant.'
Personal Information
The term 'personal information' is defined as follows:
'...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; and
(b) whether the information or opinion is recorded in a material form or not.'
Paragraph 6.130 of the Guidelines provides:
'Personal information can include a person's name, address, telephone number, date of
birth, medical records, bank account details, taxation information and signature.'
I find that parts of documents 1, 1c, 1d, 1f, 2, 3 and 4 contain personal information of another
person. This includes their name, contact details and information about their indigenous status
and role in the indigenous community.
Whether disclosure is 'unreasonable'
In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.138 of the
Guidelines provides:
'The personal privacy exemption is designed to prevent the unreasonable invasion of
third parties' privacy. The test of 'unreasonableness' implies a need to balance the public
interest in disclosure of government-held information and the private interest in the
privacy of individuals.'
I am satisfied that the disclosure of the third party personal information would be unreasonable
for the following reasons:
• it relates to aspects of an individual's personal affairs;
• you do not have the consent from this individual for the release of their personal
information;
• the individual provided the information to the department on the condition of
confidentiality;
• the information is private and not available in full or in part from publicly-accessible
sources;
• the information is sensitive in nature and regards the individuals racial or ethnic
origins;
• the identity of the individual concerned is readily apparent or could be easily
ascertained;
• the individual concerned have opposed the release of the information on the grounds
that it is of such a nature that disclosure may cause harm for instance its publication
may result in abuse and harassment of a racist nature. I am satisfied that the
individual's contentions are reasonable in the circumstances.
On this basis, I have decided that the personal information included in documents referred to in
the Schedule is conditionally exempt under section 47F(1) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.'
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would promote the objects of the FOI Act.
I have also considered the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
• prejudice an individual's right to privacy,
• adversely affect or harm the interests of an individual or group of individuals,
specifically members of the relevant Aboriginal Corporation who made the
applications to protect Mount Panorama/Wahluu under sections 9 and 10 of the
Aboriginal and Torres Strait Islander Heritage Protection Act..
Based on the above factors, I have decided that in this instance, the disclosure of the documents
would, on balance, be contrary to the public interest.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act
in making this decision.
Conclusion
In summary, I am satisfied that parts of documents, as set out in the Schedule, are conditionally
exempt under section 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 decided
not to release the documents in full to you.
As identified in the Schedule, I have deleted the exempt information in the document/s and
released the remaining material in accordance with section 22(1) of the FOI Act.
Summary of my decision
In conclusion, I have decided to:
• grant you
full access to 4 documents (documents 1e, 1g, 1h, and 1i,);
• grant you
part access to 7 documents (documents 1, 1c, 1d, 1f, 2, 3, 4) with some of the
content removed; and
• delete document 1a and 1b in full under section 22(1)(a)(ii) as they are culturally
sensitive.
• delete document 5 in full as due to extensive redactions being applied, has left only a
skeleton of the former document which conveys little of its content or substance and
would be of little or no value to release.
I have decided that documents 1, 1c, 1d, 1f, 2, 3, 4 are conditionally exempt, in part, under
section 47F of the FOI Act, and disclosure would be contrary to the public interest for the
purposes of section 11A(5).
