FA 210301196 R1 Decision Letter.pdf

29 September 2021
Ms Eleanor Davey
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 21/03/01196-R1
File Number:  OBJ2021/9882
Dear Ms Davey
Decision on Internal Review – Freedom of Information Act 1982
I  refer to your correspondence dated 21 June 2021 in which  you requested that the
Department of Home Affairs (the Department) review its decision on access to documents
dated 9 June 2021 under the Freedom of Information Act 1982 (the FOI Act).
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Scope of original request
The scope of your original request for access to documents under the FOI Act was  as
follows:
I would like to access a copy of the risk assessment developed for the performance
management of Save the Children Australia as part of that organisation's work
associated with the Regional Processing Centre on Nauru. According to ANAO
report no 32 of 2016-17, p.13, this risk assessment was agreed in December 2014.

If this document is already publicly available or can be released administratively I
would be pleased to have notification of its availability.
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Original decision on access dated 9 June 2021
Documents within scope
The Department identified one document as fal ing within the scope of your original request.
This document was  in the possession of Department on 23 March 2021 when your FOI
request was received.
Decision on access
The original decision maker decided to:

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Casselden Place 2 Lonsdale Street Melbourne VIC 3001
GPO Box 241 MELBOURNE VIC 3001 x Telephone: 0 x Fax: 0 x www.homeaffairs.gov.au

x
refuse access to the document, on the basis it was  considered exempt from
disclosure.
In  finding that the document was  exempt, the Department relied on sections 33(a)(i i) and
47E(d) of the FOI Act.
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Request for internal review
On 21 June 2021, you requested the Department to review its decision dated 9 June 2021.
The terms of your review request were as fol ows:
I am writing to request an internal review of Department of Home Affairs's handling
of my FOI request 'Risk assessment for Save the Children on Nauru' (FA
21/03/01196). I would like to request internal review on the fol owing grounds related
to the sections of the FOI Act cited in the decision letter:

1. Section 33(a)(i i) [part 6.1 of the decision letter] - this ‘permits exemption of a
document if disclosure of the document would, or could reasonably be expected to,
cause damage to the international relations of the Commonwealth.’ The decision
letter also notes that ‘There must be real and substantial grounds for the conclusion
that are supported by evidence.’

However, I believe that the refusal is on the basis of assertion rather than evidence,
and that the refusal on this grounds should be re-evaluated for the fol owing
reasons:

    •  The document I have requested pertains to the relationship between the
Commonwealth of Australia and a service provider, Save the Children Australia. The
document is for performance management of the contract between these two
parties. No evidence has been given to prove that the terms of performance
management pertain to any relationship other than that between the contractor and
service provider.

    •  The contract itself, as wel  as contracts between the Commonwealth of Australia
and other contractors working in the Nauru Regional Processing Centre, have
previously been released fol owing FOI requests. This suggests that contractual
arrangements, which could reasonably be taken to include arrangements for the
management of those contracts, do not fal  under Section 33(a)(i i).

    •   The involvement of service providers on Nauru and certain elements of the
handling of their contracts are wel  established and widely known. See ANAO
reports no. 16 and 32 of 2016-17 in the first instance.

    •  See also the contextual information in my next point below.

2. Section 47E [part 6.2 of the decision letter] - this states that ‘documents are
conditionally exempt if disclosure would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of an
agency.’

I believe that the idea that the release of this document could have a ‘substantial
adverse effect’ on Department of Home Affairs operations should be re-evaluated

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due to the fol owing considerations:

    •  The organisation in question (Save the Children Australia, SCA) is no longer a
service provider in offshore detention and has not been since 2015, approximately 6
years ago.

    •  The primary caseload for which SCA was contracted to provide services,
families with  children in detention on Nauru, is no longer present. The last 3 children
and their families were brought to Australia in February 2019.

    •  The Nauru Regional Processing Centre has ceased to operate in the form that it
did at the time the document was produced and in the manner to which the contract
pertains.

The relevant operations have thus changed significantly since the time of the
contract and how the release of this contract management document could affect
them is very unclear.

3. Section 11A of the Act [part 6.3 of the decision letter] governs the public interest
assessment test.

I address the assertions from the decision letter below:

    •  Finding: ‘Access to the document would promote the objects of the FOI Act.’

   Response: Agreed.

    •  Finding: ‘The subject matter of the document does not seem to have a general
characteristic of public importance. The matter has a limited scope and, in my view,
would be of interest to a very narrow section of the public.’

Response: Scrutiny, review, and discussion of government activities are of high
public importance; immigration policy and the management of immigration detention
are of high public importance; as evidenced by parliamentary inquiries, academic
research, third-sector work, mass protests, and press coverage, there is strong
interest in these issues and this interest cannot be set aside by unsubstantiated
claims about an undefined ‘very narrow section of the public’.

    •  Finding: ‘No insights into public expenditure will be provided through
examination of the document.’

Response: the document requested pertains to the management of a significant
category of public expenditure. The high costs of offshore detention have been wel
established. Scrutiny of the contracting process and the management of contracts
once established has been shown to be important by the work of the ANAO in
successive investigations. These have revealed shortcomings in the processes used
by the Department of Home Affairs and its predecessor departments, knowledge of
which is strongly in the public interest. Indeed, rather than having potentially adverse
effects as claimed in the refusal letter, transparency and accountability (of the kind
facilitated by investigations and FOI requests) are likely to improve operations in the
future.

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    •  Finding: ‘You do not require access to the document in order to access your
own personal information.’

Response: agreed.

A full history of my FOI request and all correspondence is available on the Internet
at this address:
https://www.righttoknow.org.au/request/risk assessment for save the chi
4 Scope
of
internal
review
Based on the terms of your internal review in paragraph 3 above, I consider you are seeking
review of:
x
the Department’s decision to apply exemptions to documents within the scope of the
request
I  consider you have not sought review of the searches undertaken by the Department in its
original decision. Accordingly, the Department has not conducted further searches for
documents as part of this decision.
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Authority to make decision
I  am  an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate departmental records.
In  accordance with section 54C(3) of the FOI Act, I have made a fresh decision on your FOI
request.
6 Information
considered
In  reaching my decision, I have considered the following:
x
the scope of your request
x
the Department’s original decision of 9  June  2021 and the evidence gathered for that
decision
x
your submissions in relation to your reasons for requesting an internal review
x
the documents falling within the scope of your original request
x
the searches undertaken in the original decision
x
advice from departmental officers with  responsibility for  matters relating to  the
information to which you sought access
x
the FOI Act, and
x
the Australian Information Commissioner’s guidelines relating to the interpretation,
operation and administration of the FOI Act (the FOI guidelines).

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7 Internal
review
decision
I  have decided to  vary the original decision of  the Department dated 9 June  2019 and
replace it with a decision:
x
that, in relation to the documents found to be exempt in the original decision:
o
certain material found to  be exempt  under section 33(a)(iii) and 47E(d) is  not
exempt
o
certain material found to  be exempt  under section 33(a)(iii) and 47E(d) is  not
exempt under section 47E(d), but is exempt under sections 33(a)(iii) and 47G
o
certain material found to  be exempt  under section 33(a)(iii) and 47E(d) is  not
exempt  under both these provisions, but is  exempt  under section 33(a)(i i) or
47G
o
certain material found to be exempt under section 33(a)(i i) and 47E(d) relating
to another contracted service provider is not exempt, but it is irrelevant to your
request under section 22(1)(a)(i ) of the FOI Act
o
three pages of the documents found to be exempt  in the original decision are
duplicates of other pages, and are accordingly outside the scope of your request
o
to release the document in part, by granting access to an edited copy from which
exempt and irrelevant material has been deleted.
The Department has affirmed the remainder of its decision to apply the section 33(a)(ii)
exemption.
The schedule included at Attachment A sets out my decision on each of the documents
within the scope of the internal review request.
I  have provided the reasons for my decision below.
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Reasons for internal review decision: irrelevant material
8.1  Section 22(1)(a)(ii) of the FOI Act – irrelevant to request
Section 22(1)(a)(i ) of the FOI Act applies if an agency or Minister decides that giving access
to a document would disclose information that would reasonably be regarded as irrelevant
to the request for access.
I  have decided that parts of the documents contain information that could reasonably be
regarded as irrelevant to your request.
The material in question relates to another contracted service provider, information about
which is included with information about Save the Children Australia in the document within
the scope of the request.
As the scope of your request is  for “a copy of the risk assessment developed for the
performance management of Save the Children Australia”, I consider that material that
wholly  relates to services provided by the other service provider, and the risk assessment
of those services, to be irrelevant to your request.
I  consider the remaining material in the documents to be relevant to your request.

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Reasons for internal review decision: exemptions
9.1  Section 33(a)(iii) of the FOI Act – Documents affecting international relations
Section 33(a)(iii) of the FOI Act permits exemption of a document if disclosure of the
document would, or could reasonably be expected to, cause damage to the international
relations of the Commonwealth.
The phrase 'international relations' has been interpreted as meaning the ability of the
Australian Government to  maintain good working  relations with  other governments and
international organisations and to protect the flow of confidential information between them.
The expectation of damage to international relations must be reasonable in all the
circumstances, having regard to the nature of the information; the circumstances in which
it was communicated; and the nature and extent of the relationship.  There must be real
and substantial grounds for the conclusion that are supported by evidence.
The document within  the scope of the request relates to the risk management of services
performed by contracted services providers operating in Nauru.  The Republic of Nauru is
a sovereign nation and the Government of Nauru is responsible for regional processing in
Nauru.
The material relating to Nauru that I  consider exempt under 33(a)(iii) contains information
about regional processing operations in  Nauru, including information about aspects of
regional processing operations that could be considered as providing a commentary on
conditions in Nauru if it were disclosed
I  consider releasing certain information would adversely impact on the ability of the
Department to maintain good working relations with the Government of Nauru. This
assessment is made considering the nature of the information contained within the
document and the current nature and extent of the Australia Government’s relationship with
the Government of Nauru.
In  forming my  decision I  have taken into consideration the views  of the Government of
Nauru, which  has expressed concern about the release of sensitive information relating to
regional processing arrangements and requested that this information not be disclosed by
the Department. Any action such as disclosure of sensitive documents or documents critical
of Nauru would cause offence to Nauru and harm our bilateral relationship. I therefore
consider that the capacity of the Department and the Government of Australia to maintain
a  productive and healthy bilateral relationship with  the government of  Nauru  would  be
damaged by the release of the information.
In making this decision I  have also consulted officers of the Department with specific
knowledge of the bilateral relationship between the Department and Nauru, who agreed
that the disclosure of the material would  adversely impact on the ability of the Department,
and as a result, the Australian Government, to maintain good working relations with Nauru.
I  therefore consider that the release of the information marked with the 's. 33(a)(iii)' redaction
in the document(s) would, or could reasonably be expected to cause damage to the
Australian Government's international relations.
As such I have decided that the information is exempt from disclosure under section
33(a)(iii) of the FOI Act.

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Reasons for internal review decision: public interest conditional exemptions
10.1  Section 47G of the FOI Act – Business affairs
Section 47G(1)(a) of the FOI Act permits conditional exemption of documents containing
business information where disclosure of that information would, or could reasonably be
expected to, unreasonably affect the organisation adversely in respect of its lawful business,
commercial or financial affairs.
I  have considered that part of document contains information concerning the business,
commercial or financial affairs of an organisation, Save the Children Australia.
In  determining whether disclosure of the information within the documents would  or could
reasonably be expected to adversely affect the lawful business, commercial or financial
affairs of an organisation, I have had regard to the fol owing factors:
(a)
The extent to which the information is wel  known;
(b)  Whether the organisation or undertaking is known to be associated with the
matters dealt with in the documents;
(c)
The availability of the information from publicly accessible sources; and
(d)
Any other matters that the Department considers relevant.
The information contained within these documents is not in the public domain, the
organisation concerned is not generally known to  be associated with  the matters referred
to in these documents, and the information is not available from publicly accessible sources,
such as the organisation's website.
In  addition, the Department consulted the third party organisation to whom the documents
relate, and that organisation made submissions to the Department in support of exemption
under section 47G(1)(a) of the FOI Act. I  have taken these third party submissions into
account when making this decision.
I am therefore satisfied that the disclosure of the information would, or could reasonably be
expected to, unreasonably affect that organisation in respect of its lawful business,
commercial or financial affairs.
I  have decided that parts of the documents referred to above are conditionally exempt under
section 47G of the FOI Act.  Access to a conditionally exempt document must generally be
given unless it would be contrary to the public interest to do so.  I  have turned my mind to
whether disclosure of the information would be contrary to the public interest, and have
included my reasoning in that regard at paragraph 10.2 below.
10.2  The public interest – section 11A of the FOI Act
As I  have decided that parts of the document are conditionally exempt, I  am now  required
to consider whether access to the conditional y exempt information would be contrary to the
public interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test
in section 11A(5) before an exemption may be claimed in respect of that part.

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In summary, the test is whether access to the conditionally exempt part of the document
would be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would
do any of the fol owing:
(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.
Having regard to the above I am satisfied that:
x
Access to the document would promote the objects of the FOI Act.
x
The subject matter of the document has some public importance. However, the matter
has a limited scope and, in my view, would be of interest to a narrow section of the
public, including because of the passage of time.
x
Some  insights into public expenditure wil   be provided through examination of the
document.
x
The release of the document to you would not allow you access to your own personal
information.
I  have also considered the fol owing factors that weigh  against the release of the
conditionally exempt information in the document:
x
Disclosure of the parts of the documents that are conditionally exempt under section
47G of the FOI Act could reasonably be expected to prejudice the competitive
commercial activities of third party organisations. I consider that this would be contrary
to the public interest and that this factor weighs strongly against disclosure.
I  have also had regard to section 11B(4) which sets out the factors which are irrelevant to
my decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of 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 document was (or is) of high seniority in the agency to which
the request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I  have not taken into account any of those factors in this decision.
Upon  balancing all of the above relevant public interest considerations, I have concluded
that the disclosure of the conditionally exempt information in the documents would be
contrary to the public interest and it is therefore exempt from disclosure under the FOI Act.

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Reasons for decision: access to edited copies
11.1  Section 22(2) of the FOI Act – access to edited copies with exempt and irrelevant
matter deleted
Section 22(2) of the FOI Act provides that an agency must provide access to an edited copy
of a document when:
x
the agency has identified that a document is  exempt or contains irrelevant material,
and
x
it is possible for the agency to prepare an edited copy of the document from which it
has deleted the exempt or irrelevant material.
As I have indicated above, the document identified within the scope of the request contains
exempt and irrelevant material.
I have determined that it is reasonably practicable to prepare an edited copy of the
document in question, and accordingly have issued you with an edited copy of this
document pursuant to section 22(2) of the FOI Act.
12 Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Details/C2017C00251.
If you are unable to access the legislation through this website, please contact our office for
a copy.
13 Your
review
rights
Review  by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for
a review of this decision.  You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a request for a review to the OAIC,  please
see  https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
14 Making
a
complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local cal  charge)
Email  xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it
is considered that the action taken in relation to the request should be investigated and
identify the Department of Home Affairs as the relevant agency.

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15 Contact
Should you wish to discuss my decision, please do not hesitate to contact via email at
xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx.

Jacob Cannon
Position number 60028140
Authorised Decision Maker
Department of Home Affairs

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