ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2021/266
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
(Name redacted at request of applicant)
DECISION BY: Ms Petra Gartmann
Assistant Secretary
Legal Policy Branch
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear (Name redacted at request of applicant)
I refer to your email of 19 October 2021 in which you made a request under the
Freedom of
Information Act 1982 (the
FOI Act) to the Department of the Prime Minister and Cabinet (the
Department) in the following relevant terms:
On 28 July 2021, your department served notice of intent to consider a vexatious
declaration application on a member of the public engaged in scrutinising your
department’s administrative decision-making regarding the Humanitarian Overseas
Service Medal. On 1 August 2021, the member of the public replied refuting your
department’s allegations and implications. The reply informed your department of
significant errors in their administrative processes associated with the HOSM that
were revealed through FOI. The response respectfully asked your department to take
a number of actions.
Please provide a copy of:
1. the 28 July 2021 and 1 August 2021 letters
2. all departmental correspondence between 1 August and 19 October 2021 related to
this matter
3. draft and final documents created by the department in response to the 1 August
2021 letter.
On 1 November 2021, the Department advised you that you were seeking correspondence
relating to another individual, and that you would need to provide the Department with proof
that you are the same individual as the individual to which that correspondence relates.
In response, on 2 November 2021, you advised:
Thank you. I am happy to provide proof again. Please note, I do not consent to my name,
email, address or phone number being disclosed. Regarding your statement ‘Your request is
for a letter to the Department dated 28 July 2021 and the Department's correspondence in
response dated 1 August 2021. As that correspondence, and related documents’. To amend
and clarify our request, we would like to ask for copies of:
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. PMC's 28 July 2021 letter serving notice of intent to consider a vexatious declaration
application with the Information Comissioner
2. The 1st August 2021 letter ‘Response to PMC notice of intent to consider vexatious
declaration applicaiton proceedings’
3. All departmental (as in PMC) correspondence occuring from 1 Aug to 19 Oct 2021 related
to this vexatious declaration matter
4. The department’s draft and final responses to the 1st August 2021 letter ‘Response to
PMC notice of intent to consider vexatious declaration applicaiton proceedings’
On 4 November 2021, the Department responded to your email as follows:
Based on a number of factors, including
-
your use of email address (Email redacted at request of applicant)
when responding to
our identification enquiry and cross-referencing of the FOI request made under
pseudonym (Name redacted at request of applicant)
through the Right to Know
platform,
-
your history of FOI requests with the Department under both (Names redacted at
request of applicant)
, and
-
your detailed knowledge of the Department’s letter serving notice of intent to a FOI
applicant regarding our consideration of a vexatious applicant declaration with the
Information Commissioner,
the Department is satisfied of your identity for the purpose of this FOI request and does not
require further proof of identification. However, in light of the content of that original
correspondence, and your related response, we recommend that communications relating to
this FOI request be processed from now on using your personal email address … and not
disseminated via the Right to Know email address.
On 8 November 2021, you replied that
With the exception of my name, postal address, email address and phone number which I
respectfully ask the department to redact. I consent to the department releasing all other
information. Please send the documents (with my name, postal address, email address and
phone number redacted) to the originating email on Right to Know.
Steps taken to find the documents
Having regard to the terms of your request, 11 documents (the
requested documents) were
identified as meeting the terms of your FOI request.
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.
Decision I have decided to partially release the requested documents on the basis that they contain
information that is conditionally exempt under section 47F, section 47C (deliberative
material) and section 47E(d) (operations of an agency) of the FOI Act.
Copies of the documents that are released to you in accordance with my decision are
attached.
2
link to page 3 link to page 3 link to page 3 link to page 3
In making this decision, I have had regard to the following material:
• the FOI request;
• the requested documents;
• the FOI Act; and
• the ‘Guidelines issued by the Australian Information Commissioner under s 93A of
the
Freedom of Information Act 1982’
1 (the
FOI Guidelines).
Reasons
Section 47C of the FOI Act
Section 47C(1) of the FOI Act provides that:
A document is conditionally exempt if its disclosure 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 an agency, a Minister, or the Government of the
Commonwealth.
The FOI Guidelines provide that ‘deliberative matter’ is a shorthand term for ‘opinion, advice
and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a
document.
2 The FOI Guidelines further provide that ‘deliberative process’ generally refers to
the process of weighing up or evaluating competing arguments or considerations or the
thinking processes – the process of reflection, for example, upon the wisdom and expediency
of a proposal, a particular decision or a course of action.
3 Parts of the requested documents contain internal departmental advice or recommendations
recorded in the course of, or for the purpose of, the deliberative processes involved in the
functions of the Department. This includes draft material. I am therefore satisfied that this
material is conditionally exempt under section 47C of the FOI Act.
While section 47C(2)(b) of the FOI Act provides that ‘deliberative matter' does not include
‘purely factual material’, the FOI Guidelines provide that ‘purely factual material’ does not
include 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.
4 I am satisfied that the factual material contained in the draft documents is an integral part of
the deliberative content and purpose of those documents, or is embedded in or intertwined
with the deliberative content, such that it is impractical to excise it.
I am therefore satisfied that the relevant parts of the requested documents contain
conditionally exempt material under section 47C(1) of the FOI Act.
1 FOI Guidelines combined June 2019 published on the web site of the Office of the Australian Information
Commissioner at https://www.oaic.gov.au/freedom-of-information/foi-guidelines/.
2 FOI Guidelines, [6.63].
3 FOI Guidelines, [6.59].
4 FOI Guidelines, [6.73].
3
link to page 4
Section 47E(d) of the FOI Act
Section 47E(d) of the FOI Act provides that:
A document is conditionally exempt if its disclosure would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
Parts of the requested documents are draft documents. The proper and efficient conduct of the
Department’s operations requires that officers prepare draft material subject to settlement
before being made final. The process of settling material is an iterative process and material
may change in the light of new information or further consideration or reflection.
I consider that the disclosure of the material in the draft documents would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of the Department by:
• inhibiting the exchange of written views between officers and 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,
• limiting the quality and detail of internal advice and recommended action by officers if
draft documents, that do not constitute final agreed positions, are released.
Accordingly, I find that this material is conditionally exempt under section 47E(d) of the FOI
Act.
Would disclosure be contrary to the public interest?
Section 11A(5) of the FOI Act provides that access must generally be given to a conditionally
exempt document unless it 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.
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:
• access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss in confidence in the Commonwealth Government;
• access to the document could result in any person misinterpreting or misunderstanding
the document;
• 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
• 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.
Public interest factors favouring disclosure
The FOI Act sets out four factors favouring disclosure which must be considered if relevant,
namely:
5 5 See section 11B(3) of the FOI Act and FOI Guidelines, [6.17].
4
link to page 5
• promoting the objects of the FOI Act
• informing debate on a matter of public importance
• promoting effective oversight of public expenditure
• allowing a person to access his or her personal information.
Having regard to the nature of the conditionally exempt information, I am satisfied that
disclosure would promote the objects of the FOI Act and allow a person to access his personal
information.
Public interest factors favouring non-disclosure
I consider that public interest factors weighing against disclosure for parts of the requested
documents are:
• disclosure would or could reasonably be expected to reduce the quality, clarity and
detailed nature of written internal deliberations if there is a risk that internal
deliberations including draft documents are publicly released,
• disclosure would have a substantial adverse effect on the proper and efficient conduct
of the operations of the Department. Officers would be inhibited in the recording
opinion, advice and recommendations and preparing draft material. The iterative
process of settling such material in the light of new information or further
consideration or reflection would be adversely affected.
Balancing the public interest
In weighing the public interest factors for and against disclosure, I note the FOI Guidelines
provide that the pro-disclosure principle declared in the objects of the FOI Act is given
specific effect in the public interest test, as the test is weighted towards disclosure.
6 Notwithstanding the weighting towards disclosure, in this case, I attach more weight to the
public interest factors against disclosure. In weighing the factors, I consider the public interest
against disclosure outweighs the public interest for disclosure.
I am satisfied that disclosing the conditionally exempt information would, on balance, be
contrary to the public interest.
Section 47F of the FOI Act – personal information
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
(including a deceased person).
‘Personal information’ is defined as:
… information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
6 FOI Guidelines, [6.8].
5
As you have requested the exemption of your personal information, I am satisfied that it is
reasonable in this case to exempt all your personal information from the requested documents
and that the public interest would be against the disclosure of your personal information..
Deletion of exempt or irrelevant matter
Section 22 of the FOI Act provides that exempt or irrelevant information may be deleted from
a copy of a document, and access granted to such an amended copy where it is reasonably
practicable to do so, unless it is apparent that the applicant would not wish to have access to
such a copy.
For documents that fall within scope of the request, it is the Department’s policy to withhold:
• any person’s signature;
• the names and contact details of Australian Public Service officers not in the Senior
Executive Service (SES);
• the mobile or direct numbers of SES officers;
• the names and contact details of Ministerial staff at a level below Chief of Staff.
I have also removed duplicate information in the requested documents, wherever relevant, to
facilitate the processing of your request.
Publication of the documents
Section 11C of the FOI Act requires an agency to publish on its web site information released
to an applicant under the FOI Act.
Processing and access charges
I have decided not to impose processing charges in respect of your request.
Review rights
Information about your rights of review 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 request. 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
Petra Gartmann
Assistant Secretary
Legal Policy Branch
25 November 2021
6
Document Outline
