Our reference: FOIREQ21/00277
D Forker
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Freedom of Information Request – FOIREQ21/00277
Dear Mr Forker
I refer to your request for access to documents made under the
Freedom of Information
Act 1982 (Cth) (FOI Act) and received by the Office of the Australian Information
Commissioner (OAIC) on 27 November 2021.
Scope of your request
In your request you seek access to the following:
I note the Guardian newspaper recently reported, on 17 November 2021, on
contraventions of the FOI Act engaged in by the Department of the Prime Minister and
Cabinet here:
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.theguardi
an.com%2Faustralia-news%2F2021%2Fnov%2F17%2Fprime-ministers-department-
breached-foi-laws-over-release-of-brittany-higgins-
documents&data=04%7C01%7Clegal%40oaic.gov.au%7Cbbe72c13823046ac6290
08d9b14f0c08%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7C0%7C637735775934
834946%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJB
TiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=2pyJpNPYc2wySmdo5V9%2BWB
XqezlzYloDoM5H5IK5lI8%3D&reserved=0
Under the FOI Act, I seek a copy of any document contained within the OAIC email
accounts of Angelene Falk and/or Elizabeth Hampton that relates or refers to the above
article.
On 3 December 2021, the OAIC acknowledged receipt of your request and sought
your advice as follows:
In order to process your request as efficiently as possible, I will exclude duplicates and
early parts of email streams that are captured in later email streams from the scope of
this request, unless you advise me otherwise.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
As you have not advised us otherwise with regard to the scope of your request, we
continued to process your request as stated in our acknowledgement letter of 3
December 2021.
I have interpreted the terms of your request broadly to include any document
contained within the OAIC email accounts of Ms Falk and/or Ms Hampton that relates
or refers to the article
and refers to the two FOI complaints about the Department of
Prime Minister and Cabinet (the Department), that are the subjects of the
investigations referred to in the linked article.
On 13 December 2021, Ms Emma Liddle wrote to you to advise that the OAIC was
required to conduct third party consultation pursuant to s 27A of the FOI Act in
relation to documents which we have identified to contain personal information of
third parties.
On 14 and 17 January 2022, the OAIC conducted third party consultation with two
third party individuals and the Department respectively in relation to documents
which we have identified to fall within the scope of your request. I have taken their
responses and submissions into consideration.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified 39 documents comprising 251 pages falling within the scope of your
request. They include email correspondence involving the Information
Commissioner and Deputy Commissioner in two FOI complaints about the
Department, CP21/01673 and CP18/01243, that are the subjects of the article linked
in your request.
I have decided to give you access to:
• 10 documents in full, and
• 29 documents in part.
Please refer to the schedule of documents attached to the decision.
Reasons for decision
Materials taken into account
In making my decision, I have had regard to the following:
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• your freedom of information request of 27 November 2021
• searches conducted by the relevant line area
• the documents in issue
• the FOI Act
• the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act to which regard must be had in performing a function or
exercising a power under the FOI Act (FOI Guidelines)
Irrelevant material – s 22
Section 22(1)(a)(ii) of the FOI Act provides that an agency may prepare an edited
copy of a document by deleting information ‘that would reasonably be regarded as
irrelevant to the request for access’.
I have examined the documents at issue. I have identified the following categories of
irrelevant material:
• Duplicates and early parts of email streams that are captured in later email
streams
• Any material relating to FOI complaints files other than CP21/01673 and
CP18/01243
• Any material relating to FOI requests that are not the subjects of CP21/01673
and CP18/01243
• Media articles that are not related to the linked article referred to in your FOI
request
• Email correspondence relating to third party consultations between third
parties and the Department for the FOI request that was the subject of
CP18/012343
Having regard to the terms of your request, I am satisfied that the material listed
above fall outside the scope of your request and is therefore redacted under
s 22(1)(a)(i) of the FOI Act. Please refer to the schedule of documents where the
irrelevant material is identified.
Documents subject to deliberative processes – s 47C
I have decided that material in 1 document is exempt in part under s 47C of the FOI
Act.
The material that I have found to be exempt under s 47C can be described as a
deliberation and advice provided during an internal consultation as part of the
OAIC’s investigation in CP18/012343.
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The FOI Guidelines and previous IC review decisions1 provide that the main
requirements of s 47C conditional exemption are that a document:
• contains or relates to ‘deliberative matter’ that was prepared for a
‘deliberative purpose’ (s 47C(1))
• the material is not ‘purely factual’ or non-deliberative (s 47C(2)), and
• it would be ‘contrary to the public interest’ to give access at this time (s
11A(5))
Deliberative matter
The term ‘deliberative matter’ is a shorthand term for opinion, advice,
recommendation, consultation and deliberation that is recorded or reflected in a
document.2
The FOI Guidelines at [6.66] provides a non-exhaustive list of material that is not
deliberative matter, where not already excluded as operational information, purely
factual or a scientific report:
• content that is merely descriptive
• incidental administrative content
• procedural or day to day content
• the decision or conclusion reached at the end of the deliberative process
• matter that was not obtained, prepared or recorded in the course of, or for
the purposes of, a deliberative process
In the Administrative Appeals Tribunal decision of
Wood; Secretary, Department of
Prime Minister and Cabinet and (Freedom of information) [2015] AATA 945 (Wood),
Deputy President Forgie explains that the meaning of the words ‘opinion’, ‘advice’
and ‘recommendation’ all involve consideration, followed by the formation of a view
either about a certain subject or about a course of action and the subsequent
transmission of that view.3
In this case, the relevant material includes internal consultation and feedback
provided by the Deputy Commissioner to the case officer in CP18/012343. It reflects
1 FOI Guidelines [6.52]-[6.88];
William Summers and Department of the Prime Minister and Cabinet (Freedom
of information) [2018] AICmr 9;
Dan Conifer and Department of the Prime Minister and Cabinet (No. 2)
(Freedom of information) [2017] AICmr 117;
Allister McCaffrey and Australian National University
(Freedom of information) [2017] AICmr 77;
‘KV’ and Indigenous Land Corporation (Freedom of
Information) [2017] AICmr 17 and
John Quinn and Australian Taxation Office [2016] AICmr 94.
2
Parnell and Attorney-General’s Department [2014] AICmr 71 [38].
3
Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of information) [2015] AATA 945
[39].
4
early thinking and consideration the Department’s submissions and
recommendations to the OAIC, the weighing of options and subsequent changes in
the OAIC’s investigative approach in CP18/012343.
Furthermore, I am satisfied that the material is neither operational information nor
purely factual materials and amounts to more than merely procedural or day to day
content. It is material that comprises deliberations that inform the OAIC’s conducts
in investigating FOI complaints. Therefore, I am satisfied that the relevant material is
deliberative and is conditionally exempt under s 47C 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:4
… 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.
In this case, I must consider whether disclosure of the deliberative material at this
time would be contrary to the public interest.
Section 11B(3) of the FOI Act lists factors that favour disclosure 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 factor favouring
disclosure in this case is that disclosure would promote the objects of the FOI Act.
The public interest factor favouring disclosure must be balanced against any public
interest factors against disclosure. The FOI Act does not specify any factors against
disclosure, however the FOI Guidelines at [6.22] provide a non-exhaustive list of
factors against disclosure.
4
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
5
In
Rovere and Secretary, Department of Education and Training [2015] AATA 462,5 the
AAT said that in relation to pre-decisional communications, a frankness and candour
claim cannot be a public interest factor against access. The Information
Commissioner reads Rovere as authority that a confidentiality or candour claim
carries no weight by itself but must be related to some particular practice, process,
policy or program in government.
The FOI Guidelines at [6.82] further provide:
The Information Commissioner considers that frankness and candour in
relation to the s 47C conditional exemption may have some application as
one public interest factor against disclosure in combination with other
factors, and possibly as the sole factor where the public interest is clearly,
heavily weighted against disclosure of a document of a minister, or a
document that would affect the effective and efficient functioning of
government.
In this case, I consider that disclosure of the deliberative material, which involves
internal deliberations of the Department’s submissions and recommendations,
would have an adverse impact on the OAIC’s engagement with other government
departments and its ability to carry out its investigative functions under the FOI Act.
Additionally, I find that disclosure of the deliberative material would have an adverse
impact on the frank and open discussion of deliberative material between OAIC’s
officers, particularly where that reflects early thinking and consideration of other
Department’s submissions, weighing up options and subsequent changes to the
OAIC’s investigative approach.
On balance, in this case, I am satisfied that the public interest factors against
disclosure outweigh the public interest factor in favour of disclosure.
As a result, I have decided that, at this time, giving you access to the deliberative
material would, on balance, be contrary to the public interest. Please refer to the
schedule of documents where the exempted material is identified.
Certain operations of agencies – s 47E(d)
I have decided that material in 17 documents are exempt in part under s 47E(d) of
the FOI Act.
5 As per Popple SM in
Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [42]
and [48]-[53]. In
Dreyfus and Secretary Attorney-General’s Department (Freedom of Information) [2015]
AATA 962 at [100] Bennett J appears to give her approval to the position taken by Popple SM in Rovere.
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The material that I have found exempt under s 47E(d) can be described as the work
mobile telephone numbers of various senior officers of the FOI Regulatory Group and
Strategic Communications of the OAIC.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure
could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
Section 47E(d) of the FOI Act states:
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 at [6.101] provides:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is
explained in greater detail in Part 5. There must be more than merely an
assumption or allegation that damage may occur if the document were to be
released.
Additionally, at [6.103] the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following
disclosure. The particulars of the predicted effect should be identified during
the decision making process, including whether the effect could reasonably
be expected to occur. Where the conditional exemption is relied upon, the
relevant particulars and reasons should form part of the decision maker’s
statement of reasons, if they can be included without disclosing exempt
material (s 26, see Part 3).
Functions and powers of the OAIC
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC, I have taken into consideration the functions and activities of
the OAIC.
Due to the nature of the relevant material, I have had regard to:
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• the Australian Information Commissioner’s freedom of information powers
and regulatory powers, under the Australian Information Commissioner Act
2010 (Cth) (AIC Act) and the FOI Act, and
• the OAIC’s FOI complaint handling processes
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under the AIC Act. The OAIC comprises the Australian Information
Commissioner and the Privacy Commissioner (both offices currently held by
Angelene Falk), the FOI Commissioner (office currently vacant), and the staff of the
OAIC.
The OAIC is established under s 5 of the AIC Act. Section 5 also provides that the
Information Commissioner is the Head of the OAIC for the purposes of the
Public
Service Act 1999 (Cth). Section 5 further provides that for the purposes of the
Public
Governance, Performance and Accountability Act 2019 (Cth) the Information
Commissioner is the accountable authority of the OAIC.
Under the AIC Act and the FOI Act, the Information Commissioner has a range of
freedom of information functions and powers, including assessing and managing
vexatious declaration applications made by Commonwealth agencies, making
decisions on Information Commissioner reviews, and investigating and reporting on
freedom of information complaints.
The OAIC has a dedicated FOI complaints service platform that operates through our
website, mail and telephone systems in an integrated manner to ensure all FOI
complaints are received and managed holistically in an efficient and effective
manner. Each FOI complaint is allocated to a specific officer in the OAIC’s FOI Dispute
Resolution team who will communicate with each complainant via their own contact
details or to the FOI Dispute Resolution email address. However, the work mobile
telephone numbers of the officer is not provided to complainants to be contacted
directly.
Consideration
In
‘WN’ and Inspector General of Taxation [2020] AICmr 70, the Information
Commissioner accepted that:
…
unsolicited calls to IGT employees’ direct telephone numbers and work
mobile telephone numbers will fall outside will fall outside the integrated
service platform and would not be electronically recorded, adversely affecting
accountability, transparency, quality assurance and the provision of support to
employees in relation to those calls. While I have taken into account the
applicant’s submissions in this regard, on balance I find that this circumstance
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could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the IGT’s operations.
In this case, I am satisfied that the work mobile telephone numbers of the relevant
senior officers are not public information and are not known to be associated with
the OAIC’s FOI complaints handling process. Furthermore, given the seniority of the
relevant officers, I find that disclosure of their work mobile telephone numbers
would enable FOI complainants or the general public to contact officers who are not
responsible for their complaint matters and expose the officers to work, health and
safety issues by way of unsolicited and vexatious phone calls that could include
threats to their health and safety. Additionally, unsolicited calls to senior officers’
work mobile telephone numbers that fall outside the integrated service platform will
impede communication between senior officers and, thereby, adversely affect the
performance of their official duties and responsibilities.
Therefore, I am satisfied that the work mobile telephone numbers of senior officers
at the OAIC are conditionally exempt under s 47E(d) of the FOI Act.
The public interest test – s 11A(5)
I apply the same public interest test as described above.
In this case, I must consider whether disclosure of the work mobile telephone
numbers of OAIC’s senior officers at this time would be contrary to the public
interest.
Section 11B(3) of the FOI Act lists factors that favour disclosure 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 factor favouring
disclosure in this case is that disclosure would promote the objects of the FOI Act.
I must then balance the factor favouring disclosure against the factors against
disclosure. The FOI Act does not specify any factors against disclosure, however the
FOI Guidelines at [6.22] provide a non-exhaustive list of factors against disclosure.
In this case, I am satisfied that disclosure of work mobile telephone numbers of
senior officers could be reasonably be expected to harm the interests of those
individuals and to impede the administration of justice by adversely affecting
performance of their official duties and responsibilities.
On balance, in this case, I am satisfied that the public interest factors against
disclosure outweigh the public interest factor in favour of disclosure.
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As a result, I have decided that, at this time, giving you access to the material, which I
have found to be conditionally exempt under s 47E(d) of the FOI Act, would, on
balance, be contrary to the public interest. Please refer to the schedule of documents
where the exempted material is identified.
Personal privacy exemption – s 47F
I have decided that 14 documents are exempt in part under s 47F of the FOI Act.
The material that I have found to be exempt under s 47F can be described as the
names and contact details of two third party individuals and the mobile number of
an employee of the Department.
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.
Personal information
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.
Would disclosure involve an unreasonable disclosure of personal information?
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
• the availability of the information from publicly accessible sources
• any other matters I consider relevant.
The documents in issue contain:
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• names and contact details of an individual who lodged a FOI complaint about
the Department
• mobile number of an employee of the Department, and
• name of an individual who is not known to be associated with either
CP21/01673 or CP18/01243.
Based on internet searches I have conducted, I am satisfied that the individuals to
whom the information relates are not known to be associated with CP21/01673 or
CP18/01243 and their personal information is not available from publicly accessible
sources.
I also note that one of the third party individuals objected to the disclosure of their
personal information in response to formal consultation pursuant to s 27A of the FOI
Act on the basis that release of the individual’s personal information would cause
significant stress.6 Furthermore, given the terms of your request, I consider that no
public purpose would be achieved through the release of the personal information of
the third party individuals.7
On this basis, I consider that disclosure of this material would be an unreasonable
disclosure of personal information.
Therefore, I am satisfied that the personal information of third party individuals is
conditionally exempt under s 47F of the FOI Act.
The public interest test – s 11A(5)
I apply the same public interest test as described above.
In this case, I must consider whether disclosure of the two third-party individuals’
personal information at this time would be contrary to the public interest.
Section 11B(3) of the FOI Act lists factors that favour disclosure 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 factor favouring
disclosure in this case is that disclosure would promote the objects of the FOI Act.
I must then balance the factor favouring disclosure against the factors against
disclosure. The FOI Act does not specify any factors against disclosure, however the
FOI Guidelines at [6.22] provide a non-exhaustive list of factors against disclosure.
6 FOI Guidelines [6.142].
7
Re McCallin and Department of Immigration [2008] AATA 477.
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In this case, I am satisfied that disclosure of the third-party individuals’ personal
information could be reasonably be expected to prejudice the protection of their
right to privacy and impede the administration of justice by affecting the public’s
willingness to lodge complaints with the OAIC.
On balance, in this case, I am satisfied that the public interest factors against
disclosure outweigh the public interest factor in favour of disclosure.
As a result, 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. Please refer to the schedule of documents where
the exempted material is identified.
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Nora Truong
Legal Services
27 January 2022
12
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
xxx@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 days 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, or
where I have considered it is unreasonable to disclose personal information in my
decision, 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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