OFFICIAL
Freedom of Information (FOI) request
Notice of Revised Decision under s 55G of the FOI Act
Reference: FOI/2021/267IC
To: Mr Trav S
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Cc: Office of the Australian Information Commissioner
xxxxx@xxxx.xxx.xx

Dear Mr Trav S
I refer to your request under the Freedom of Information Act 1982 (the FOI Act) to the Department of
the Prime Minister and Cabinet (the Department) on 18 October 2021, for the following:
On 19 March 2012, your department emailed AusAID (DFAT) stating ‘further to your recent
discussion with Peter, here’s draft text for your consideration that we propose to brief the new
PSPM Senator Jan McLucas with soon’. Titled ‘amendment of humanitarian overseas service
medal (iraq) declaration 2004 to extend to specified commercial contractors’ the document
recommended the PSPM:
‘1. Sign the letter to the Governor-General recommending she makes a declaration
under HOSM Regulations 2011, extending eligibility for the ‘Iraq’ clasp to the medal, to
specified commercial contractors (Attachment A).
2. Sign the proposed Humanitarian Overseas Service Medal (Iraq) Declaration 2011
(Attachment B).'
On 11 April 2012 your department emailed AusAID (DFAT) providing a written agreement to
‘settle the declaration … and brief the PSPM next week’. However FOI investigations reveal your
department evidently withheld the documents from PSPM McLucas.

Please provide a copy of your department's subsequent correspondence to AusAID regarding
this matter. Please limit the search to subsequent correspondence occurring between 11 April
and 5 December 2012.
On 16 November 2021, the Department notified you of its decision regarding one document identified
within scope of your request (the requested document). The primary decision-maker refused access
on the grounds that the requested document contains material that was exempt under section 42
(legal professional privilege), section 47C (deliberative material), section 47E(d) (operations of an
agency) and section 47G (business information) of the FOI Act, and that relevant public interest
factors weighed against disclosure of the documents. You sought internal review of this decision.
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

1

link to page 2 OFFICIAL
On 13 December 2021, the Department notified you of its internal review decision which affirmed the
primary decision. On 11 August 2023, the Office of the Australian Information Commissioner (OAIC)
notified the Department that you have applied for an Information Commissioner (IC) review of the
Department’s internal review decision. The purpose of this letter is to provide you, under section 55G
of the FOI Act, with a revised decision on your request for access.
Section 55G of the FOI Act
Section 55G(1)(a) of the FOI Act provides that after an application is made to the IC for review, an
agency or Minister may (at any time during IC review) revoke or vary an access refusal decision to
favour the applicant by giving access to a document in accordance with the request.
Section 55G(2) of the FOI Act provides that an agency must notify the IC of the new decision (section
55G(2)(a)) and the revised decision wil  be the decision under review (section 55G(2)(b)).
Authorised decision-maker
I am authorised to make this revised decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
I have reviewed the requested document and consider I am now in a position to grant part access to
the document in accordance with your request. Accordingly, I have decided to make this revised
decision under section 55G of the FOI Act.
Material taken into account
In reaching my decision, I referred to the fol owing:
•  your FOI request;
•  the primary decision;
•  the requested document;
•  the internal review decision;
•  your request for IC review;
•  consultation comments from another agency;
•  the FOI Act; and
•  the Guidelines issued by the Information Commissioner under section 93A of the FOI Act (the
FOI Guidelines).1
Documents in scope of request
I am satisfied that the requested document meets the terms of your request.

1 FOI Guidelines.

2

link to page 3 link to page 3 OFFICIAL
Revised decision and reasons
I have considered al  the information available to me, including the fresh consultation comments
received from another agency. Due to the passage of time and the decreased sensitivity of the
material contained within the document, I have decided to grant access in part to the document,
while maintaining the exemptions over parts that contain legal y privileged material (section 42) and
business information of a third party (section 47G). Irrelevant material has been deleted under section
22(1)(a)(i ) of the FOI Act.
My findings of fact and reasons for deciding that certain information is exempt or irrelevant is set out
below.
1.  Legal Professional Privilege (section 42 of the FOI Act)
Section 42(1) 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.
The FOI Guidelines provide that to determine the application of the exemption, the decision maker
must have regard to the common law concept of legal professional privilege.2 The FOI Guidelines also
provide that at common law, determining whether a communication is privileged requires a
consideration of:
•  whether there is a legal adviser-client relationship;
•  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; and
•  whether the advice given is confidential.3
I am satisfied that parts of the requested document meet the common law requirements for
establishing a claim of legal professional privilege. I also note that the Department is the holder of the
privilege, and has not waived that privilege. Accordingly, I am satisfied that those parts of the
requested document are exempt under section 42 of the FOI Act.
2.  Business information (section 47G of the FOI Act)
Section 47G(1)(a) of the FOI Act conditional y exempts documents where disclosure 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 (business information),
where the disclosure of the information would, or could reasonably be expected to, unreasonably

2 FOI Guidelines [5.127].
3 FOI Guidelines [5.129].

3

link to page 4 link to page 4 link to page 4 link to page 4 OFFICIAL
affect the 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.
Parts of the requested document contain the business information of an organisation. I consider that
such business information is conditional y exempt from release, as its disclosure would, or could
reasonably be expected to involve the unreasonable disclosure of business information of a third
party. Accordingly, I am satisfied that those parts of the requested document are conditionally exempt
under section 47G(1)(a) of the FOI Act.
3.  Public interest
The FOI Act provides that a conditional y exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest.4 In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
As I have decided that some material is conditional y exempt, I am now required to consider the
public interest factors. In doing so, I have not taken into account the irrelevant factors as set out in
section 11B(4) of the FOI Act, this includes:
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
d)  access to the document could result in confusion or unnecessary debate

In applying the public interest, I have noted the objects of the FOI Act5 and the factors favouring
access as listed in section 11B(3) of the FOI Act. Having regard to the material before me and the
circumstances of the documents found to be conditional y exempt I am satisfied that access would
promote the objects of the FOI Act.6
The FOI Act does not set out any public interest factors against disclosure and require agencies to
have regard to the FOI Guidelines in order to work out if disclosure would, on balance, be contrary to
the public interest.7 The FOI Guidelines contain a non-exhaustive list of factors that, depending on the
circumstances of the documents found to be conditional y exempt, may weigh against disclosure.

4 FOI Act, s 11A(5).
5 FOI Act, s 3.
6 FOI Act, s 11B(3)(a).
7 FOI Act, s 11B(5).

4

link to page 5 link to page 5 OFFICIAL
In my view, the factors against disclosure of the conditional y exempt material is that disclosure of the
information could reasonably be expected to adversely affect the business interests of the relevant
third party, given the subject matter discussed within the document.
After careful consideration of al  relevant factors, I have decided that, on balance, the factors against
disclosure outweigh those favouring disclosure. Accordingly, I am of the view that disclosure of the
conditional y exempt material would be contrary to the public interest.
4.  Deletion of irrelevant matter
Section 22 of the FOI Act provides that if giving access to a document would disclose information that
would be reasonably regarded as irrelevant to the request, it is possible for the Department to
prepare an edited copy of the document, modified by deletions, ensuring that the edited copy would
not disclose any information that would reasonable be regarded as irrelevant to the request.
On 29 October 2021, the Department advised you of its policy to exclude personal and direct contact
details of officers not in the Senior Executive Service (SES) and any Ministerial staff, as wel  as any
person’s signature, and the mobile or direct numbers of SES officers, which are contained in the
documents that fal  within the terms of an FOI request. This category of information is identified as
irrelevant and I am satisfied that those parts of the document may be deleted under section 22(1)(a)(i )
of the FOI Act.
The remainder of the document has been released to you (to the extent that it is not exempt) as it is
relevant to your request. A copy of the document for release is attached to this decision.
Publication of documents
Under section 11C of the FOI Act, the Department wil  make arrangements to publish the documents
released to you on the Department’s FOI Disclosure Log.8
Review Rights
The FOI Guidelines state that:
A revised decision does not automatically conclude the IC review. The revised decision will be the
decision under review (s 55G(2)(b)). The OAIC will generally consult the applicant as to whether
they wish to continue the IC review on the basis of the revised decision.9
Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. If you are not satisfied with our response, you can make a complaint to the

8 https://www.pmc.gov.au/about-us/accountability-and-reporting/information-and-privacy/foi-disclosure-logs
9 FOI Guidelines [10.70].

5

link to page 6

OFFICIAL
Australian Information Commissioner. A complaint to the IC must be made in writing. More
information about complaints is available here.10
If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx.

Yours sincerely

David Belgrove
Acting Assistant Secretary
Parliamentary and Government Branch
Department of the Prime Minister and Cabinet

27 October 2023

10 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-complaints

6

Document Outline