Our ref: 14/162861
9 September 2014
Mr Vito Guzzardi
By email: xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir
Freedom of Information Request 14-14
I refer to your request by email of 23 July 2014 under the
Freedom of Information Act 1982
(the FOI Act) for access
to:
“all the documents (including correspondence, briefings file notes and telephone records of
communications) made between 1 January 2013 and 23 July 2014 between the Department
of Health (including Mr Richard Eccles and his staff) and the Australian Crime Commission in
relation to the proposed or actual investigation by ACC / ASADA into the Essendon Football
Club, including the joint press conference held on 7 February 2013, and the arrangements
for the ACC / AFL / ASADA joint investigation.”
The terms of this request were clarified on 14 August, to include both correspondence with
the Department of Health, and correspondence with Mr Richard Eccles and staff of
Department of Regional Australia, Local Government, Arts and Sport (DRALGAS)
This is a decision made under the FOI Act in relation to documents within the scope of that
request.
As you are aware, an agency is required by the FOI Act to respond within 30 days of a
request. In the current request, this period was extended by a further 14 days to permit a
response by 5 September 2014. The compliance date was extended again with your consent
to Tuesday 9 September 2014.
Documents identified I have identified 29 documents as falling within the scope of your request:
Authority and materials considered I am authorised under section 23 of the FOI Act to make a decision concerning the
information you have requested access to.
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
In reaching my decision I have taken into consideration:
● the relevant provisions of the FOI Act;
● the contents of the relevant documents;
● relevant guidelines issued by the Office of the Australian Information Commissioner;
and
● relevant Tribunal and Federal Court decisions concerning the operation of the FOI
Act.
Decision I have decided to exempt some documents in full and some of the documents in part subject
to redactions. Details of the application of exemption provisions in the FOI Act to the relevant
documents are set out in the document schedule at
Annexure A and on the documents
themselves. Extracts of the relevant exemption provisions are at
Annexure B. An
explanation of the exemptions relied upon is set out below.
Section 22 – Deletion of documents which are not relevant or are exempt Section 22(1)(a)(ii) of the FOI Act permits the deletion of information that would be
reasonably regarded
as irrelevant to the request.
Parts of the documents identified in the schedule contain information which is unrelated to
your requests. I have determined that this information falls outside the terms of your request
and have deleted this material under section 22 of the FOI Act.
Section 42 – legal professional privilege Section 42 of the FOI Act provides that a document is an exempt document if it is of such a
nature that it would be privileged from production in legal proceedings on the ground of legal
professional privilege.
Some of the documents that fall within the ambit of your request contain information that is
subject to legal professional privilege. It contains the substance of confidential legal advice
that has been obtained by the ACC. To release this information would constitute waiver of
privilege in the advice. As the ACC wishes to preserve that privilege, the relevant
information has been redacted.
I have considered the matters set out in the OAIC Guidelines at paragraphs 5.114-5.134. In
particular I have considered the ‘real harm’ test and am satisfied that the disclosure of the
information would cause substantial prejudice to the ACC’s affairs as it would reveal
confidential material.
Section 47C – deliberative processes
Section 47C of the FOI Act provides that a document, or part of a document, is conditionally
exempt if its disclosure would disclose matter relating to opinion, advice or recommendations
made in the course of the deliberative processes of an agency.
It is my view that some of the documents and parts of other documents relevant to your
request fall within this conditional exemption. The reason for this is that release of that
material, such as draft documents or documents containing recommendations for future
action or deliberation, would disclose deliberative matter in the nature of opinion, advice and
recommendations expressed in the course of a deliberative process when staff are carrying
out their ACC duties.
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
The functions of the ACC are set out in section 7A of the ACC Act. Section 7A(a) of the ACC
Act states that one of the ACC’s functions is ‘to collect, correlate, analyse and disseminate
criminal information and intelligence...’. Also, it is the function of the ACC to carry out
investigations and to undertake intelligence operations (sections 7A(b) and (c) of the ACC
Act) and to provide strategic criminal intelligence assessment to the Board (section 7A(e)). In
performing its functions, the CEO may publish bulletins for the purposes of informing the
public about its performance of ACC functions (Section 60(4) of the ACC Act).
As a result, the release of the relevant parts of the documents would disclose deliberative
matter in the nature of opinion, advice and recommendations obtained in the course of a
deliberative process relating to the performance of the ACC’s statutory duties and functions.
Accordingly, that information where appearing has been redacted. This exemption is subject
to the public interest test, below.
Section 47F – Public interest conditional exemption – personal privacy Section 47F 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.
The OAIC guidelines state at [6.139] that:
Where public servants’ personal information is included in a document because of
their usual duties or responsibilities, it would not be unreasonable to disclose unless
special circumstances existed. This is because the information would reveal only that
the public servant was performing their public duties. Such information may often also
be publicly available, such as on an agency website.
Due to the nature of work undertaken at the ACC, it is considered that special circumstances
exist which make disclosure of personal information about ACC employees unreasonable.
The role the ACC plays in disrupting serious and organised crime means that the publication
of names of employees would place those employees at considerable risk to their personal
safety. The recipients of ACC communications are placed in a similar risk category, therefore
the special circumstances also extend to those receiving ACC information. In addition to
names being considered personal information, any information that would allow for the
person to be identified, such as phone numbers and email addresses, is also an
unreasonable disclosure of personal information.
I have had regard to the factors in section 47F(2). In relation to the matters listed in that
section, I consider that:
a) the personal information is not well known;
b) the persons to whom the information relates are not known to have been associated
with the matters dealt with in the documents; and
c) the information is not readily available from publicly accessible sources.
This exemption is subject to the public interest test, details of which are set out below.
Public Interest Considerations Section 11A(5) of the FOI Act requires that the ACC must give access to documents that are
conditionally exempt unless such access would, on balance, be contrary to the public
interest. The public interest test for the conditional exemptions referred to above requires the
ACC to weigh the competing public interests and decide where the balance lies.
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
There are a number of public interest factors favoring access. They are that disclosure
would:
a) Promote the objects of the FOI Act
b) Inform debate on a matter of public importance
c) Provide the Australian community with access to information held by the ACC;
d) Increase the scrutiny, discussion, comment and review of the ACC’s activities;
e) Allow the public to scrutinise the ACC's operations and make its own judgment as to
whether the agency is discharging its functions properly; and
f) Enhance the accountability and scrutiny of ACC decision making.
There are a number of other factors that would render the release of this information as
contrary to the public interest. These are:
a) release could compromise the effectiveness of the ACC’s law enforcement and
intelligence gathering activities;
b) release of the information could prejudice the ACC’s ability to obtain confidential
information;
c) Could reasonably be expected to prejudice the protection of an individual’s right to
privacy; and
d) release could prejudice the ACC’s ability to take part in similar procedures in future.
On balance, I consider that the public interest factors against the disclosure of the redacted
portions of the documents outweigh the public interest factors in favor of disclosure. I have
reached this conclusion because of the sensitivity of the information, the potential to
prejudice investigations being conducted by stakeholder agencies and the importance of
preserving the privacy of individuals.
Disclosure Log Section 11C of the FOI Act provides that information about any documents released under
that Act must be published on the ACC’s website within 10 days of release, subject to the
exemptions set out in section 11C(1)(a)-(d). In this instance, no information released under
this application will be posted on the disclosure log.
Your review rights
If you are dissatisfied with this decision you can apply for internal review or review by the
Information Commissioner. You do not have to apply for internal review before seeking the
Information Commissioner’s review.
Internal review You may seek internal review by making an application in writing to the ACC within 30 days
of being notified of this decision. A written application for a review should be sent to the FOI
Coordinator at xxx@xxxxxxxxxxxxxxx.xxx.xx, or by post to:
FOI Coordinator
Australian Crime Commission
GPO Box 1936
Canberra ACT 2601
Information Commissioner review Alternatively, you may apply in writing for review by the Information Commissioner. In
making your application you need to provide:
- an address for notices to be sent (this can be an email address)
- a copy of this decision.
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
It would also help if you set out the reasons for review in your application. Requests for
review must be in writing and can be made via the website (www.oaic.gov.au), by email at
xxxxxxxxx@xxxx.xxx.xx, or by post at:
Office of the Australian Information Commissioner
GPO Box 2999
Canberra ACT 2601
If you are objecting to a decision to refuse access to documents you must apply to the
Information Commissioner within 60 days of being given notice of the decision. You can
contact the Information Commissioner by phone on 1300 363 992.
Right to complain
You may make a complaint to the Information Commissioner about action taken by the ACC
in relation to your application. The complaint needs to be in writing and identify the agency
against which the complaint is made.
The Information Commissioner may be contacted on 1300 363 992. There is no particular
form required to make a complaint, but the complaint should set out the grounds on which
you consider the action should be investigated.
Yours sincerely,
Amy Dyde
FOI Delegate
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
Annexure A- Schedule of documents
No.
Date
Pag Document
Decision
Exemption(s)
e
claimed
s
1
11/1/2013
4
Email
Partially
S47C & 47F
exempt
2
11/1/2013
2
Email
Partially
S47C & 47F
exempt
3
24/1/2013
3
Email
Partially
S47F
exempt
4
25/1/2013
2
Email
Partially
S47F
exempt
5
25/1/2013
3
Email
Partially
S47F
exempt
6
25/1/2013
2
Email
Partially
S47F
exempt
7
31/1/2013
1
Email
Partially
S42 & 47F
exempt
8
1/2/2013
1
Email
Partially
S42 & 47F
exempt
9
4/2/2013
1
Email
Partially
S42 &47F
exempt
10
4/2/2013
1
Email
Partially
S42 & 47F
exempt
11
Undated
33
Talking points & QA’s
Partially
S47C
exempt
12
6/2/2013
1
Email
Partially
S47F
exempt
13
6/2/2013
1
Email
Partially
S47F
exempt
14
6/2/2013
1
Email
Partially
S47F
exempt
15
14/2/2013
2
Email
Partially
S22, 47F
exempt
16
18/1/2013
3
Letter
Partially
S47C
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
exempt
17
Undated
3
Media protocols -
Exempt
S 47C
draft
18
7/2/13
2
Media conference
Exempt
S 47C
Statement – draft
19
7/2/13
3
Media Release –
Exempt
S 47C
Draft
20
Undated
17
Talking points
Exempt
S 47C
and Q&As - draft
21
7/2/13
4
Media release -
Exempt
S 47C
draft
22
Undated
2
Media statement –
Exempt
S 47C
draft
23
Undated
2
Media strategy –
Exempt
S 47C
draft
24
Undated
1
Media release –
Exempt
S 47C
draft
25
Undated
1
Media statement –
Exempt
S 47C
draft
26
Undated
17
Media protocols
Exempt
S 47C
Consolidated talking
Points and Q&As –
draft
27
Undated
1
Contingency
Exempt
S 47C
Talking points - draft
28
7/2/13
4
Media release –
Exempt
S 47C
Draft
29
02,2013
2
Media release –
Exempt
S 47C
Draft
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
Annexure B – Extracts of the FOI Act
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an
edited copy) of
the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under
section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited
copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt
matter because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse
access to the whole document unless the applicant requests the agency or Minister to give
the applicant a notice in writing in accordance with that section.
42 Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the document in
legal proceedings waives that claim.
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
(3) A document is not an exempt document under subsection (1) by reason only
that:
(a) the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Note: For
operational information, see section 8A.
47C Public interest conditional exemptions—deliberative processes
General rule
(1) 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; or
(d) the Government of Norfolk Island.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an agency or not, including
reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given
in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).
47F Public interest conditional exemptions—personal privacy
General rule
(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;
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au
(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.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a
request by a person for access to a document by reason only of the inclusion in the
document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the
agency, or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or her
capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the
case may be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5) The principal officer or Minister may, if access to the document would otherwise
be given to the applicant, direct that access to the document, so far as it contains that
information, is not to be given to the applicant but is to be given instead to a qualified person
who:
(a) carries on the same occupation, of a kind mentioned in the definition of
qualified person in subsection (7), as the first-mentioned qualified person; and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section
may be exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7) In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their well-
being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
Note: Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).
ACC MELBOURNE: GPO Box 238 Melbourne VIC 3001
T: (03) 8636 7111
F: (03) 8636 7399
W: www.crimecommission.gov.au