- the investigation al uding to a practice whereby FOI administrative decision-
makers at DPMC are acting under dictation from political parties – an illegal practice
that would constitute a contravention of the APS Code of Conduct; and
- paragraph 6.19 of the FOI Guidelines providing that release of the documents the
subject of my request would be in the public interest including because they will
“inform debate on a matter of public importance, including to: i. al ow or assist inquiry
into possible deficiencies in the conduct or administration of an agency or official ii.
reveal or substantiate that an agency or official has engaged in misconduct or
negligent, improper or unlawful conduct and ii . reveal deficiencies in privacy or access
to information legislation.”
On 25 November 2021, Ms Elena Elagina of the OAIC wrote to you, acknowledging
receipt of your FOI request.
On 17 December 2021, Ms Elagina wrote to you to advise that the OAIC was required
to engage in third party consultation pursuant to s 27A of the FOI Act in relation to
the documents, as the OAIC had identified documents relevant to the personal
information of third parties.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
Searches were conducted by the Director of the Investigations and Compliance Team
in the FOI Regulatory Group to locate documents within the scope of your request
and by the Legal Services Team.
I have identified 7 documents falling within the scope of your FOI request, that is, any
and all documents given to the Department of Prime Minister and Cabinet pursuant
to s 86(2) of the FOI Act in relation to the investigations referred to in the article
linked in your FOI request.
I have decided to:
- grant you access in full to 5 documents
1
- grant you access in part to 2 documents.
2
1 Documents 1, 2, 3, 4 and 7.
2 Documents 5 and 6.
2
Please refer to the schedule of documents attached.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information application
• the FOI Act, in particular s 47F and
• the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines).
Personal privacy exemption (s 47F)
I have decided that two documents are exempt in part under s 47F of the FOI Act.
The material that I have found to be conditionally exempt under s 47F can be
described as the name and contact details of a third-party individual.
Section 47F of the FOI Act conditionally exempts documents where disclosure would
involve the unreasonable disclosure of personal information of any person. This
exemption is intended to protect the personal privacy of individuals.
In the FOI Act, personal information has the same meaning as in the
Privacy Act 1988 (Cth) (Privacy Act). Under s 6 of the Privacy Act, personal information means:
… 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
I am satisfied that the name and contact details of individuals is personal
information for the purposes of the FOI Act.
In determining whether disclosure of personal information would be unreasonable,
s 47F(2) of the FOI Act requires me to have regard to the following matters:
• the extent to which the information is well known
• whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document
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• the availability of the information from publicly accessible sources
• any other matters I consider relevant.
The document contains the names and contact details of individual who lodged an
FOI complaint about the Department of Prime Minister and Cabinet.
Based on internet searches I have conducted, I am satisfied that the individual to
whom the information relates is not known to be associated with the matters dealt
with in the documents and the information is not available from publicly accessible
sources or well known.
I also note that the third-party individual objected to the disclosure of their personal
information in response to formal consultation in an earlier FOI request for the same
material.
I am satisfied that disclosure of this material would be an unreasonable disclosure of
personal information.
Therefore, I am satisfied that the name and contact details of the third-party
individual who lodged an FOI complaint with the OAIC, and who has objected to the
disclosure of their personal information, is conditionally exempt under s 47F of the
FOI Act.
The public interest test – s 11A(5)
An agency cannot refuse access to conditionally exempt documents unless giving
access would, on balance, be contrary to the public interest (s 11A(5)).
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, Deputy President
Forgie explained that
3:
… the time at which I make my decision for s 11A(5) requires access to be
given to a conditionally exempt document “at a particular time” unless doing
so is, on balance, contrary to the public interest. Where the balance lies may
vary from time to time for it is affected not only by factors peculiar to the
particular information in the documents but by factors external to them.
3
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
4
In this case, I must consider whether disclosure of the information at this time would
be contrary to the public interest.
Section 11B(3) of the FOI Act lists factors that favour access when applying the public
interest test. The FOI Guidelines at [5.138] include a non-exhaustive list of further
factors that favour disclosure. I consider the public interest factors favouring
disclosure in this case is that disclosure would promote the objects of the FOI Act.
Against these factors I must balance the factors against disclosure. The FOI Act does
not specify any factors against disclosure, however the FOI Guidelines provide a non-
exhaustive list of factors against disclosure.
This includes factors such as when disclosure of personal information could be
reasonably be expected to harm the interests of an individual or group of individuals
and to impede the administration of justice by affecting individuals’ willingness to
lodge complaints with the OAIC. In this case, I am satisfied that the public interest
factors against disclosure outweigh the public interest factors in favour of disclosure.
I have decided that at this time, giving you access to the material, which I have found
to be conditionally exempt under s 47F of the FOI Act, would, on balance, be contrary
to the public interest.
Conclusion
Please refer to the schedule of documents attached which provides a link for access
to documents 5-7, which were subject to a previous FOI request and are already
published on the OAIC’s disclosure log. Documents 1-4 are attached to this decision
in a PDF document.
Please be advised that a summary of the investigations are also available on the OAIC
website at https://www.oaic.gov.au/freedom-of-information/information-
commissioner-decisions/freedom-of-information-investigation-outcomes/.
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Margaret Sui
Senior Lawyer
14 January 2022
5
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision
(IC review). If you wish to apply for IC review, you must do so in writing within
60 days. Your application must provide an address (which can be an email address or
fax number) that we can send notices to, and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
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Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact xxxxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 of release, except if they contain personal or
business information that it would be unreasonable to publish.
Where the third party objected to the disclosure of their personal information, an
edited version of the documents with the personal information removed will be
published on the OAIC’s disclosure log within 10 working days.
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