ONE NATIONAL CIRCUIT
FOI
BARTON
FOI/2021/111
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Trav S
DECISION BY: Peter Rush Assistant Secretary
Parliamentary and Government Branch
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email, dated 14 July 2021, in which you made a request to the Department of the
Prime Minister and Cabinet (the
Department) under the
Freedom of Information Act 1982 (the
FOI Act) in the following terms:
On 11 June 2021, we requested “a copy of all documents related to a file titled
"Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".
On 12 July 2021, Mr Peter Rush stated “I am satisfied that all reasonable steps have been
taken to find documents relevant to the FOI request, and that no documents relevant to the
FOI request exist in the Department”.
On 10 April 2012, Mr Rush received the following email “Subject: Humanitarian
Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED]”.
Under the FOI Act, please provide a copy of that email. Including all correspondence and
attached documents.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Searches for relevant documents
The Department has undertaken searches and identified 5 documents (the
requested documents)
meeting the terms of your FOI request. The documents are listed in the schedule at
Attachment A.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
Decision I have decided to exempt, in full, the five documents meeting the terms of your request under the
following provisions of the FOI Act:
• section 42,
• section 47C,
• section 47E(d), and
• section 47G(1)(a).
In making this decision, I have had regard to the following material:
• the FOI request;
• the requested documents;
• the FOI Act;
• the ‘Guidelines made by the Australian Information Commissioner issued under section
93A of the
Freedom of Information Act 1982’ (the
FOI Guidelines).
Reasons
Section 42 of the FOI Act – Legal professional privilege
Section 42 of the FOI Act relevantly provides as follows:
(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.
…
The FOI Guidelines relevantly provide as follows:
The FOI Act does not define LPP [legal professional privilege]
for the purposes of the
exemption. To determine the application of this exemption, the decision maker needs to
turn to common law concepts of LPP.1
…
LPP applies to some but not all communications between legal advisers and clients. The
underlying policy basis for LPP is to promote the full and frank disclosure between a
lawyer and client to the benefit of the effective administration of justice. It is the purpose of
the communication that is determinative. The information in a document is relevant and
may assist in determining the purpose of the communication, but the information in itself is
not determinative.2
At common law, determining whether a communication is privileged requires a
consideration of:
•
whether there is a legal adviser-client relationship
1 FOI Guidelines, [5.127].
2 FOI Guidelines, [5.128] (footnotes omitted).
2
•
whether the communication was for the purpose of giving or receiving legal advice, or
use in connection with actual or anticipated litigation
•
whether the advice given is independent
•
whether the advice given is confidential.3
I am satisfied the documents meet the common law requirements for establishing a claim of legal
professional privilege. Further, the Department, as the entity entitled to claim legal professional
privilege, has not waived that claim.
I am therefore satisfied that the documents are exempt under section 42 of the FOI Act.
Section 47C of the FOI Act – Deliberative process
Section 47C of the FOI Act provides as follows:
(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.
Section 47C(2)(b) of the FOI Act provides that ‘deliberative matter' does not include ‘purely
factual material’.
The FOI Guidelines relevantly provide as follows:
A deliberative process involves the exercise of judgement in developing and making a
selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing
upon one’s course of action. In short, the deliberative processes involved in the
functions of an agency are its thinking processes – the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
‘Deliberative process’ generally refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.
4
…
‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’ and
‘consultation and deliberation’ that is recorded or reflected in a document. There is no
3 FOI Guidelines, [5.129] (footnotes omitted).
4 FOI Guidelines, [6.58] – [6.59] (footnotes omitted).
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reason generally to limit the ordinary meanings given to the words ‘opinion, advice or
recommendation, consultation or deliberation’.5
The FOI Guidelines provide that ‘purely factual material’ does not extend to factual material that
is an integral part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.
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I am satisfied that the documents contain deliberative matter prepared or recorded in the course of
or for the purposes of, the deliberative processes involved in the functions of the Department. I am
further satisfied that the documents contain no ‘purely factual’ material.
I am therefore satisfied that the documents are conditionally exempt from release under section
47C of the FOI Act.
Section 47E(d) of the FOI Act – Certain operations of agencies
Section 47E(d) of the FOI Act provides as follows:
A document is conditionally exempt if 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.
The FOI Guidelines relevantly provide as follows:
An agency’s operations may not be substantially adversely affected if the disclosure would,
or could reasonably be expected to lead to a change in the agency’s processes that would
enable those processes to be more efficient.
…
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is,
the agency is undertaking its expected activities in an expected manner. Where disclosure
of the documents reveals unlawful activities or inefficiencies, this element of the
conditional exemption will not be met and the conditional exemption will not apply.7
In relation to the test ‘would or could reasonably be expected to’, the FOI Guidelines provide as
follows:
The test requires the decision maker to assess the likelihood of the predicted or forecast
event, effect or damage occurring after disclosure of a document.
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires
analysis of the reasonable expectation rather than certainty of an event, effect or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.
5 FOI Guidelines, [6.63] (footnotes omitted).
6 FOI Guidelines, [6.73] (footnotes omitted).
7 FOI Guidelines, [6.120] – [6.123] (footnotes omitted).
4
The mere risk, possibility or chance of prejudice does not qualify as a reasonable
expectation. There must, based on reasonable grounds, be at least a real, significant or
material possibility of prejudice.8
The FOI Guidelines provide that the term ‘substantial adverse effect’ broadly means
… ‘an adverse effect which is sufficiently serious or significant to cause concern to a
properly concerned reasonable person’. The word ‘substantial’, taken in the context of
substantial loss or damage, has been interpreted as ‘loss or damage that is, in the
circumstances, real or of substance and not insubstantial or nominal’.9
I am satisfied that the documents could reasonably be expected to have a substantial adverse effect
on the proper and efficient administration of the Department by inhibiting officers in inhibiting
officers in the recording, or exchanging, opinions, advice and recommendations.
I am therefore satisfied that the documents are conditionally exempt under section 47E(d) of the
FOI Act.
Section 47G of the FOI Act – Business information
Section 47G(1)(a) of the FOI Act provides as follows:
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
In relation to the term ‘business or professional affairs’, the FOI Guidelines relevantly provide as
follows:
The use of the term ‘business or professional affairs’ distinguishes an individual’s
personal or private affairs and an organisation’s internal affairs. The term ‘business
affairs’ has been interpreted to mean ‘the totality of the money-making affairs of an
organisation or undertaking as distinct from its private or internal affairs’.
The internal affairs of an organisation include its governance processes, the processes by
which organisations are directed and controlled. For example, documents relating to
member voting processes are not exempt under s 47G, because member voting forms part
of the governance affairs of an organisation.10
In relation to the concept of unreasonable adverse effect of disclosure, the FOI Guidelines provide
as follows:
The presence of ‘unreasonably’ in s 47G(1) implies a need to balance public and private
interests. The public interest, or some aspect of it, will be one of the factors in determining
whether the adverse effect of disclosure on a person in respect of his or her business
8 FOI Guidelines, [5.16] – [5.18] (footnotes omitted).
9 FOI Guidelines, [5.20] (footnotes omitted).
10 FOI Guidelines, [6.192] – [6.193] (footnotes omitted).
5
affairs is unreasonable. A decision maker must balance the public and private interest
factors to decide whether disclosure is unreasonable for the purposes of s 47G(1)(a); but
this does not amount to the public interest test of s 11A(5) which follows later in the
decision process. It is possible that the decision maker may need to consider one or more
factors twice, once to determine if a projected effect is unreasonable and again in
assessing the public interest balance. Where disclosure is not unreasonable, the decision
maker will need to apply the public interest test in s 11A(5). This is inherent in the
structure of the business information exemption.
The test of reasonableness applies not to the claim of harm but to the objective assessment
of the expected adverse effect. For example, the disclosure of information that a business’
activities pose a threat to public safety, damage the natural environment; or that a service
provider has made false claims for government money may have a substantial adverse
effect on that business but may be reasonable in the circumstances to disclose. Similarly, it
would not be unreasonable to disclose information about a business that revealed serious
criminality. These considerations require a weighing of a public interest against a private
interest, preserving the profitability of a business, but at this stage it bears only on the
threshold question of whether the disclosure would be unreasonable.
The AAT has said, for example, that there is a strong public interest in knowing whether
public money was accounted for at the appropriate time and in the manner required; and
in ensuring that public programmes are properly administered.
The AAT has distinguished between ‘truly government documents’ and other business
information collected under statutory authority. The first category includes documents that
have been created by government or that form part of a flow of correspondence and other
documents between the government and business. The AAT concluded that such documents
inclined more to arguments favouring scrutiny of government activities when considering
whether disclosure would be unreasonable. By implication, the exemption is more likely to
protect documents obtained from third party businesses.
Where disclosure would result in the release of facts already in the public domain, that
disclosure would not amount to an unreasonable adverse effect on business affairs.11
I am satisfied that disclosure of the documents would disclose the business affairs of an
organisation and disclosure would, or could reasonably be expected to, unreasonably affect that
organisation adversely in respect of its lawful business, commercial or financial affairs.
I am therefore satisfied that the documents are conditionally exempt under section 47G(1)(a) of
the FOI Act.
Section 11A(5) of the FOI Act – the public interest test
Section 11A(5) of the FOI Act provides that a conditionally exempt document must nevertheless
be disclosed to the applicant unless its disclosure would, on balance, be contrary to the public
interest.
In determining whether disclosure would be contrary to the public interest, the FOI Act requires a
decision-maker to balance the public interest factors in favour of disclosure against the factors
against disclosure.
11 FOI Guidelines, [6.187] – [6.191] (footnotes omitted).
6
Section 11B(4) of the FOI Act sets out the following factors that the decision-maker must not take
into account when deciding whether access to the document would be contrary to the public
interest:
a) access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in 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 documents was (or is) of high seniority in the agency to which the
request for access to the document was made; or
d) access to the document could result in confusion or unnecessary debate.
I have not taken any of the above factors into account in making my decision.
Factors in favour of disclosure
The FOI Act sets out four factors favouring disclosure which must be considered if relevant,
namely:
12
• promote the objects of the FOI Act;
• inform debate on a matter of public importance;
• promote effective oversight of public expenditure; or
• allow a person to access his or her personal information.
I am satisfied that disclosure of the conditionally exempt information may promote the objects of
the FOI Act. The FOI Guidelines contain a non-exhaustive list of public interest factors favouring
disclosure that may also be relevant in particular circumstances.
13 However, the list in the FOI
Guidelines contains no additional relevant public interest factors to those that I have already taken
account of as described above.
Factors against disclosure
The FOI Act does not provide for any public interest factors against disclosure that decision
makers may consider. The FOI Guidelines contain a non-exhaustive list of public interest factors
against disclosure that may also be relevant in particular circumstances,
14 to which
I have had regard.
I consider that disclosure of the conditionally exempt information could reasonably be expected
to: • reduce the quality, clarity or frankness of written advice;
• inhibit officers in the recording, or exchanging, opinion, advice and recommendation;
• inhibit the preparation of draft material and thereby adversely affecting the iterative
process of settling such material in the light of new information or further consideration or
reflection;
• inhibit the proper and efficient administration of the Humanitarian Overseas Service Medal
by the Department; and
• harm the interests of an organisation in respect of its lawful business affairs.
12 See section 11B(3) of the FOI Act and FOI Guidelines, [6.17].
13 FOI Guidelines, [6.19].
14 FOI Guidelines, [6.22].
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Balancing the public interest
After careful consideration of all relevant factors, I consider the public interest against disclosure
outweighs the public interest for disclosure.
I am therefore satisfied that disclosing the conditionally exempt information in the documents
would, on balance, be contrary to the public interest.
Processing and access charges
I have decided not to impose charges in respect of your request.
Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions in
relation to this decision. Making a complaint about the way the Department has handled an FOI
request is a separate process to seeking review of the Department’s decision. Further information
about how to make a complaint is available at https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/make-an-foi-complaint/.
Yours sincerely
Peter Rush
Assistant Secretary
Parliamentary and Government Branch
13 August 2021
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