Our ref: LEX 68371
Mr Alby P
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr P
Freedom of Information Act 1982 (Cth) (FOI Act) – Notice of Decision
I refer to your correspondence, received by the Department of Industry, Science, Energy and Resources
(
the department) on 15 March 2021 for access under the
Freedom of Information Act 1982 (Cth) (
FOI Act)
as fol ows:
"I'm requesting under the FOI Act the date of the tender submission that led to this contract -
https://protect-au.mimecast.com/s/3ScJCGvm0mhGlGEMSKjyeD?domain=tenders.gov.au
I'm only interested in the date of the tender submission (not the content of the tender proposal) and
no personal or third-party information at all.
I'm happy for this to be dealt with administratively if more expedient."
Background
On 16 April 2021, the Office of the Australian Information Commissioner granted the department an
extension under section 15AB of the FOI Act for the processing of your FOI request until 28 April 2021.
Decision
I am an authorised decision maker under section 23 of the FOI Act.
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 one document that is relevant to your request. This
document is described in the Schedule of Documents at
Attachment A.
I have decided that the document is exempt in full and therefore access is refused.
I have found that the requested document comprises 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;
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
• section 47G(1)(a) 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 document contains 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
Rebecca Lannen
General Manager
Entrepreneurs’ Programme
22 April 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: Alby P – 15 March 2021 (LEX 68371)
Decision Maker: Rebecca Lannen, General Manager, Entrepreneurs’ Programme
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 document described in Attachment A;
• your correspondence setting out the particulars of your request;
• consultation with departmental officers as to the nature of the document; 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 on 24 March 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 redacted under section 22 of the FOI Act.
2.3
Further, I have identified material within the document that does not relate to the scope of your
request. This information has also been redacted as irrelevant under section 22 of the FOI Act.
3. Section 47E(d) – The Conduct of the Operations of an Agency
3.1
Section 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
The document contains information about a tender for the provision of services to the
department, including:
a) the business name of the tenderer;
b) the email address of an individual associated with and/or representing the tenderer;
c) the name of an individual associated with and/or representing the tenderer; and
d) the date that the tenderer lodged their tender response.
3.3
The department engages contracted services providers to assist it in carrying out its functions
and activities as required. As part of the tender process, tenderers are required to submit certain
information about their business, pricing structure and ability to deliver the required services.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
3.4
Tenderers have a reasonably held expectation of confidentiality in relation to tender responses
submitted to the department, particularly given the commercially sensitive nature of the
information contained within. Tenderers submit this information on the understanding that it will
only be shared within the department on a need-to-know basis, and would only be used for the
purposes of assessing their tender response. Tenderers would not reasonably expect that
information concerning their tender response (including date of submission) to be disseminated
beyond necessary parties, particularly to third parties external to the department who are
unknown to them and for purposes unrelated to the tender submission and evaluation process.
3.5
Additionally, the information sought under this FOI request is in relation to a tender response for
the provision of services required for the Incubator Support program. Maintaining the
confidentiality of tenderers and their tender responses is particularly important, given that
successful tenderers for Regional Incubator Facilitator (
RIF) roles, have been contacted directly
by members of the public unrelated to the program and have been the subject of targeted public
campaigns.
3.6
I am of the view that if this information were to be disclosed under the FOI Act (and noting that
the FOI Act does not restrict the use or further dissemination of released material), this could
discourage potential service providers from tendering to provide services to the department,
particularly (but not necessarily limited to) services relating to the Incubator Support program,
due to concerns that their information may not be kept confidential. This decreased engagement
in the department’s tender process would have an adverse effect on the ability of the
department to source suitable external service providers who are essential to the effective
delivery of the department's programs, such as the Incubator Support program. Further, a
reduced pool of providers willing to submit tenders would adversely impact on the department's
ability to obtain best value for money.
3.7
For the reasons stated above, I am satisfied that the relevant information contained in the
document is conditionally exempt under section 47E(d), because release 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 section 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. My consideration of the public interest test is set out further below.
Public interest test
3.8
Section 11B(3) of the FOI Act sets out the following factors favouring access to a document:
a) promote the objects of the FOI Act;
b) inform debate on a matter of public importance;
c) promote effective oversight of public expenditure; and
d) allow a person access to his or her own personal information.
3.9
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.
3.10 I have considered each of the factors favouring access listed above. In my view, disclosure of the
material in question would not go towards promoting the objects of the FOI Act, other than
insofar as it would promote access to government information in the general sense. In addition,
disclosure of the material would not inform debate on a matter of public importance, nor would
it allow you or another person to access his or her own personal information. As the information
in question is non-financial nor indicative of financial information, disclosure of that material
would not promote effective oversight of public expenditure.
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
3.11 For the reasons discussed above, disclosure of the document would prejudice the department's
ability to attract and engage potential service providers, and consequently to administer its
operations and programs in an effective and efficient manner. I am satisfied that these factors
outweigh the limited public benefit that would flow through the disclosure of the document,
and that giving access to the information at this time would be contrary to the public interest.
3.12 I have therefore decided that the relevant material in the document is exempt under
section 47E(d) of the FOI Act.
4. Section 47F(1) – Personal Information
4.1
Section 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:
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,
section 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
Certain material within the document contains personal information about an individual who is
reasonably identifiable in the document (by his email address which reveals his name). The
personal information included in the document includes:
a) the individual's email address;
b) the individual's name; and
c) the fact that the individual is associated with and/or represents a certain business.
4.5
This information is not well known, is not publicly accessible and the individual is not known to
be associated with the matters concerned in the document.
4.6
I have also considered that should this information be publicly released and further
disseminated, the likelihood of the individual about which this personal information relates
being directly contacted or targeted by public campaigns, as explained above at 3.5, is
heightened. I am therefore satisfied that release of the material would involve an unreasonable
disclosure of personal information.
4.7
In applying the public interest test, I have considered each of the factors favouring access listed
above at 3.8. 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. In addition, disclosure of the material
would not inform debate on a matter of public importance, nor would it allow you or another
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
person to access his or her own personal information. As the information in question is non-
financial nor indicative of financial information, disclosure of that material would not promote
effective oversight of public expenditure.
4.8
I have taken into account the extent to which disclosure would prejudice the individual's
personal privacy, and also consider that the release of personal information could cause stress
to the persons to whom the information relates, particularly given the circumstances explained
at 3.5.
4.9
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.
4.10 I have therefore decided that the relevant material in the document is exempt under
section 47F(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 concerns business information about a tenderer,
including:
a) their business name;
b) the email address of an individual associated with and/or representing the business;
c) the name of an individual associated with and/or representing the business;
d) the date which they lodged their tender response; and
e) the fact that they lodged a tender response.
5.3
Having regard to the context in which the information appears in the document, being a
departmental tender process, I am satisfied that its disclosure would, or could reasonably be
expected to, unreasonably adversely affect the tenderer in respect of its lawful business or
professional affairs. This is particularly the case given the circumstances explained above at 3.5,
being the likelihood that the business (and associated individuals) may be directly contacted or
targeted by public campaigns. This could have a real detrimental impact on the business,
professional and/or financial affairs of the tenderer.
5.4
Accordingly, I am satisfied that certain material contained in the document is conditionally
exempt under section 47G(1)(a) of the FOI Act.
5.5
In applying the public interest test, I have considered each of the factors favouring access listed
above at 3.8. 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
against unreasonable impacts to the business affairs of organisations and individuals. In
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
addition, disclosure of the material would not inform debate on a matter of public importance,
nor would it allow you or another person to access his or her own personal information. Further,
disclosure of that material would not promote effective oversight of public expenditure.
5.6
I consider that the public interest factors in favour of disclosure are outweighed by the public
interest factors against disclosure, namely that disclosure of this information would reasonably be
expected to unreasonably affect a person or organisation in respect of their lawful business
affairs.
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
I have therefore decided that the relevant material in the document is exempt under
section 47G(1)(a) 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
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:
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 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 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: Alby P
SCHEDULE OF DOCUMENTS
Doc
Description of document
Pages
Decision
Reasons
No
1. Report
1
Exempt in full
Page 1: Removed information regarding the operation of
agencies under section 47E(d)
Page 1: Removed personal information under section 47F(1)
Page 1: Removed business information under section
47G(1)(a)
Page 1: Removed out of scope information under section 22
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Industry House – 10 Binara Street, Canberra City, ACT 2601
GPO Box 2013 Canberra ACT 2601 ABN:74 599 608 295
