FOI 2021 111IR Internal review decision.pdf

ONE NATIONAL CIRCUIT
BARTON

FOI/2021/111IR

INTERNAL REVIEW DECISION AND REASONS
UNDER SECTION 54 OF THE FREEDOM OF INFORMATION ACT 1982
FOI

REQUEST BY:
Trav S

DECISION BY:  Mr John Reid PSM
First Assistant Secretary
Government Division

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Trav S

I refer to your email dated 9 September 2021 in which you requested internal review of the
decision (the primary decision) dated 13 August 2021 by Mr Peter Rush, Assistant
Secretary, Parliamentary and Government Branch, Department of the Prime Minister and
Cabinet (the Department) under the Freedom of Information Act 1982 (the FOI Act).

Under section 54(2) of the FOI Act, an applicant is entitled to apply for an internal review of a
decision refusing to give access to a document in accordance with a request.

Authorised decision maker

Section 54C(2) of the FOI Act provides that an agency must arrange for a person (other than
the person who made the original decision) to review the decision. I am authorised to make
this decision in accordance with arrangements approved by the Department’s Secretary under
section 23 of the FOI Act.

Internal review decision

I have decided to affirm the primary decision to exempt, in full, the five documents within the
scope of your FOI request under section 42, section 47C, section 47E(d) and section
47G(1)(a) of the FOI Act.

In reaching my decision I have had regard to:
•  your FOI request of 14 July 2021;
•  the primary decision;
•  the five documents within the scope of your FOI request;
•  your request for internal review;
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

•  the FOI Act;
•  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act’ (the FOI Guidelines).

Background

The FOI request

On 14 July 2021, you made a request under the FOI Act to the Department 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.

The primary decision

On 13 August 2021, the Department notified you of the primary decision on your FOI
request. There were five documents identified as relevant to the FOI request and the decision
maker found that the documents were exempt in full under section 42, section 47C, section
47E(d), and section 47G(1)(a), for the reasons given in the primary decision.

The internal review request

On 9 September 2021, your requested internal review in the following terms:

… after careful consideration of all relevant factors, we consider the public interest
for disclosure outweighs the public interest against disclosure. We therefore request
an internal review.

As a minimum please release the documents with material that is not the substantive
content of privileged information i.e. the email subject line, address block, salutation,
classification, closing words and signature block. Relevantly in Taggart and Civil
Aviation Safety Authority (FOI) [2016] AATA 327 Forgie DP decided that such
information was not privileged and therefore not exempt under section 42 of the FOI
Act.

Within the email chain, please refer to PMC’s 11 April 2012 email providing the
department's written agreement to AusAID to ‘settle the declaration on the basis of
that advice, and brief PSPM next week. Fingers crossed!’.

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FOI Act section 42(2) confirms a document is not exempt if the person entitled to
claim the LPP waives the privilege. AusAID was one of the stakeholders entitled to
claim LPP. AusAID decided to release documents to the pubic in 2012. A DFAT
official unfamiliar with this case advised 'they do not waive LPP in this matter’
however that advice came seven years after AusAID's disclosure.

FOI Act Guidelines section 5.129 states at common law, determining whether a
communication is privileged includes consideration of ‘whether the communication
was for the purpose of giving or receiving legal advice’. Section 5.142 states ‘LPP
does not apply to a communication that is not confidential’. Section 5.1462 states
’The High Court has held that waiver of LPP will occur where the earlier disclosure
is inconsistent with the confidentiality protected by the privilege… It is immaterial that
the client did not intend to waive privilege.’ Section 5.146 states that LPP ‘may be
waived in circumstances where the communication in question has been widely
distributed’

The 11 April 2012 email communicates no explicit or implicit legal advice or legal
question. An independent statutory government agency decided to release the
documents to the public in 2012. Since that time the documents were widely
distributed to persons including, but not limited to, Federal Members of Parliament
and their staff; government officials from various departments, international
academics, corporate executives, lawyers, journalists, public stakeholders and
members of the public.

On 22 April 2013 for an example, the Deputy Leader of the Australian Greens wrote
to PSPM Leigh referring to the documents. Around this time DFAT and PMC also
received public correspondence citing direct quotes with footnoted references to the
documents. Most recently, on 15 Aug 2021, Defence reporter Charles Miranda cited
direct quotes from the documents in a Herald Sun Sunday exclusive story titled ’The
forgotten ex-SAS band of brothers hired by Australia during the Iraq War’. The story
was read by at least several tens of thousands of people in the week following its
publication thereby demonstrating the public interest.

Disclosure will achieve the FOI Act's fundamental objects. It will promote Australia’s
representative democracy by increasing public participation in government processes,
with a view to promoting better-informed decision making. It will Australia’s promote
Australia's representative democracy by increasing due public scrutiny, discussion,
comment and review of the department's administrative decision-making.

Reasons

I have considered your reasons in support of your request for internal review, however I agree
with the findings and reasons in the primary decision.

Section 42 of the FOI Act

You have submitted that, in light of the circumstances described in your request for internal
review, legal professional privilege has been waived. However, I am satisfied that the
Department, as the client agency, has not waived legal professional privilege over the
documents within the scope of your FOI request, and that the circumstances described in your
internal review request do not amount to waiver of legal professional privilege. I have noted

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your submissions that the public interest in disclosure outweighs the public interest against
disclosure, however, section 42 of the FOI Act, as an exemption in Division 2 of Part IV of
the FOI Act, is not subject to a separate public interest test, as explained in the FOI
Guidelines:

The exemptions in Division 2 of Part IV are not subject to an overriding public
interest test. If a document meets the criteria to establish a particular exemption, it is
exempt. There is no additional obligation to weigh competing public interests to
determine if the document should be released.1

I am satisfied that the primary decision was correct that relevant parts of Documents 2 and 6
are exempt under section 42 of the FOI Act.

Section 47C, section 47E(d) and section 47G(1)(a) of the FOI Act

You have contended that the public interest in disclosure outweighs the public interest against
disclosure. I have considered your submissions in support of that contention in respect of the
documents found in the primary decision to be conditionally exempt under section 47C,
section 47E(d) and section 47G(1)(a), however, I am satisfied that the conditional exemptions
continue to apply and that disclosure would, on balance, be contrary to the public interest.

Release of edited copies of the documents under section 22 of the FOI Act

You have requested that the Department ‘[a]s a minimum please release the documents with
material that is not the substantive content of privileged information i.e. the email subject line,
address block, salutation, classification, closing words and signature block’, and cite Taggart
and Civil Aviation Safety Authority2 in support of release of that information.

Section 22 of the FOI Act requires an agency to consider whether it can prepare an edited
copy of a document so that the document does not contain exempt or irrelevant content. In
determining whether an edited copy of a document can be prepared, the FOI Guidelines
relevantly provide that

… an agency or minister should take a common sense approach in considering
whether the number of deletions would be so many that the remaining document
would be of little or no value to the applicant. Similarly, the purpose of providing
access to government information under the FOI Act may not be served if extensive
editing is required that leaves only a skeleton of the former document that conveys
little of its content or substance.3

In Paul Farrell and Australian Customs and Border Protection Service4 it was stated that

… the FOI Act does not require agencies to apply section 22 of the FOI Act in a way
that achieves little more than providing access to a document that is ‘merely a
skeleton of the former document that conveys little of its content or substance’.5

1 FOI Guidelines, [5.9], and see item 1 in section 31A, and s 11A(4) of the FOI Act..
2 [2016] AATA 327.
3 FOI Guidelines, [3.98].
4 [2015] AICmr 52.
5 [2015] AICmr 52, [28], citing Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71, [77].

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An additional factor weighing against the preparation of edited copies of the documents is the
following guidance in the FOI Guidelines concerning unintentional waiver of legal
professional privilege:

The Information Commissioner suggests that agencies should take special care in
dealing with documents for which they may wish to claim LPP to avoid
unintentionally waiving that privilege.6

I am satisfied that any editing of the documents would be so extensive as to leave only a
skeleton of the former documents conveying little of the content or substance of the former
documents, and that therefore there is no requirement to prepare edited copies of the
documents under section 22 of the FOI Act.

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

John Reid PSM
First Assistant Secretary
Government Division

20 October 2021

6 FOI Guidelines, [5.149].

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