Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Mr Philip Sweeney
Fax: +61 1300 729 000
www.asic.gov.au
By Email only: foi+request-7292-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference: FOI 070-2021
1 July 2021
Dear Mr Sweeney
Freedom of Information Request No. 070 - 2021
Notice of third-party consultation
I refer to your request dated 2 May 2021 under the
Freedom of Information Act
1982 (
FOI Act) in which you seek access to documents in the possession of the
Australian Securities and Investments Commission (
ASIC).
Your request seeks access to the following documents:
“copies of any documents provided by John Hempton to ASIC as part
of this "schooling" engagement”
I have taken your request to be for any documents provided by Mr Hempton
to ASIC as notes, papers or presentations to assist him in the communication
of his perspective on the detection of frauds.
Decision
I am the authorised decision-maker for the purposes of section 23 of the FOI
Act in respect of your request.
I have identified the
two documents that are captured by the terms of your
request. These documents are PowerPoint documents provided to ASIC by Mr
Hempton as part of the presentations he delivered.
I advise that I have decided to refuse access in full to these two documents
under section 47G of the FOI Act.
I have taken the following material into account in making my decision:
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• the content of the documents that fall within the scope of your request
and the circumstances under which they were provided to ASIC.
• the FOI Act (specifically section 47G).
• the submissions from the parties consulted under section 27 and 27A of
the FOI Act; and
• the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (
the FOI Guidelines).
Exemptions
Section 47G - Public interest conditional exemptions - business
Section 47G(1) provides that:
(1) A document is conditionally exempt if its disclosure under this 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;
The documents I have identified are the PowerPoint documents used by
guest trainer Mr Hempton as part of the presentations he gave to ASIC staff
on two occasions in 2020. The documents are expressly marked as not for
distribution outside of ASIC or Bronte Capital.
I note that the FOI Guidelines at 6.190 suggest that the exemption under s
47G is more likely to protect documents obtained from third party businesses.
The material exempted under s 47G was information provided to ASIC by Mr
Hempton in advance of the presentations he provided to ASIC staff
members. The information contain details of the commercial affairs of Mr
Hempton and Bronte Capital. The release of this material has the potential to
adversely impact upon this business should it be made available to the public
at large.
I have considered the submissions of the consulted third party and I am
satisfied that the release of this material would unreasonably impact upon the
affairs of Mr Hempton and Bronte Capital.
For the above reasons I am satisfied that this material is conditionally exempt
under section 47G(1)(a) of the FOI Act.
As conditionally exempt material is subject to a further public interest test, I wil
consider the public interest below.
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Public Interest Test
The FOI Act provides that access must be given to a conditionally exempt
document unless access would be contrary to the public interest.
As required by s 11A of the FOI Act I have considered whether release of the
conditionally exempt material in the Report would, on balance, be contrary
to the public interest. In particular, I have had regard to the following factors
outlined in s 11B(3) as being factors favouring access to the documents in the
public interest:
1. Access to the documents would promote the objects of the FOI Act
(including all matters set out in sections 3 and 3A).
2. Access to the documents would inform debate on a matter of public
importance.
3. Access to the documents would promote effective oversight of public
expenditure.
4. Access to the documents would allow a person to access his or her
personal information
Of the above factors I find factor 1 to be relevant to the identified material in
each of the documents. The objects of the FOI Act include providing for a
right of access to information in the possession of Commonwealth
government agencies and promoting accountability and transparency in
government decision making. In this case, the release of the conditionally
exempt material would support the objects of the FOI Act by making
available information which is held by ASIC.
Against the above factors must be balanced the factors against disclosure.
The FOI Act does not specify any factors against disclosure in the public
interest however the FOI Guidelines at 6.22 include a non-exhaustive list of
thirteen such factors. Of these factors one is relevant to this decision; that is
that disclosure:
• could reasonably be expected to harm the interests of an individual or
group of individuals (47G)
Determining whether disclosure would be contrary to the public interest
requires that I weigh the relevant factors to determine where the public
interest lies.
I have not taken into account the factors outlined in s 11B(4) of the FOI Act as
factors that are irrelevant in deciding whether access to the documents
would be contrary to the public interest.
Release of the material exempted under section 47G in full would promote
the objects of the FOI Act by making information held by ASIC available to
the public, however, release also has the potential to unreasonably impact
upon the business affairs of the individuals and organisations to whom the
information relates.
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The information is not otherwise publicly available and was originally provided
to ASIC for the specific purpose of facilitating two presentations by Mr
Hempton at ASIC. I believe that the public interest in this instance is more
heavily weighted toward upholding the confidentiality of information that
relates to the private commercial dealings of third parties, particularly in the
circumstances where the material was provided to ASIC with an expectation
of confidentiality.
I am therefore satisfied that the public interest favours the protection of the
commercial interests of these individuals and entities. I therefore consider that
this material is exempt under section 47G of the FOI act.
Review Rights
I provide you with the following information as required by section 26 of the
FOI Act. In the event that you are dissatisfied with my decision:
1. You may, within 30 days after the day on which you have been
notified of this decision, apply in writing to ASIC for an internal review of
my decision under section 54B of the FOI Act. This review is an
independent process conducted by a Senior Freedom of Information
Officer at ASIC. This request should be addressed to me or to the Senior
Manager, Freedom of Information, GPO Box 9827, Brisbane QLD 4001
or by email to xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified
of this decision, apply in writing to the Office of the Australian
Information Commissioner (OAIC) for a review of my decision under
section 54N of the FOI Act. You may contact the OAIC by post at GPO
Box 5218 Sydney NSW 2001, by email at xxxxx@xxxx.xxx.xx or by
telephone on 1300 363 992.
Right to complain
You may lodge a complaint with the OAIC in relation to the conduct of ASIC
in the handling of this request. You may contact the OAIC as set out above.
Yours sincerely
Justin Frank
(Authorised decision maker under section 23(1) of the FOI Act)