Reference: PIAT-4097
6 January 2022
Akintunde Jimoh Oyetunde
Sent by email to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Akintunde Jimoh Oyetunde
Freedom of Information Request Decision
The Australian Transaction Reports and Analysis Centre (AUSTRAC) refers to your Freedom
of Information request (FOI request) that was received on 7 December 2021, in which you,
sought access to documents under the provisions of the
Freedom of Information Act 1982
(FOI Act), that you understood to be held by AUSTRAC.
The documents you requested are:
“I write to request for Contact Number and/or email address of InvestbyBit Pty Ltd (ABN 98
621 652 579).
I relied on the fact that this entity is regulated by AUSTRAC and it has become imperative to
contact them concerning an issue I have with dealings with them.”
I examined the scope of your request and have decided to exempt, in full, documents
relating to InvestbyBit Pty Ltd. The exemption is based upon section 47G(1) of the FOI Act.
Section 26 of the FOI Act requires AUSTRAC to provide a statement of reasons in support of
a decision. My reason for this decision is set out in
Attachment A.
The FOI Act provides a number of avenues for review if you are dissatisfied with any aspect
of this decision. Your review rights are set out in
Attachment B.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
If you have any questions or require further information, please contact the decision maker
via ema
il xxxxxxxxxxx@xxxxxxx.xxx.xx
Yours sincerely
Ashley Smith
Authorised Decision Maker
AUSTRAC
Enclosures Attachment A – Statement of Reasons
Attachment B – Review Rights
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
ATTACHMENT A
Statement of Reasons
I, Ashley Smith, am an officer authorised under s 23 of the FOI Act to make a decision in
relation to your request. The following is my decision and the reasons for that decision.
Overview
The documents sought by you in this request raise in my mind the question of whether an
exemption exists in relation to the unreasonable disclosure of business information
contained in the documents sought, in particular, information relating to InvestbyBit Pty Ltd
(the third party).
In matters where unreasonable disclosure of business information is an issue, there is a
two-step process that I am required by the FOI Act to follow in determining whether to
release the documents requested. That process comprises:
Firstly, determining whether the documents requested are conditionally exempt
under s 47G of the FOI Act; and
Secondly, determining whether giving access to the documents would be contrary
to the public interest for the purposes of s 11A(5) of the FOI Act.
Step One: Conditional Exemption under s 47G(1)
I am required to consider whether the release of the third party’s contact details would be
unreasonable.
The FOI Act sets out the following:
Section 47G - Public interest conditional exemptions--business
(1) A document is conditionally exempt if its disclosure under this Act 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, in
a case in which the disclosure of the information:
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F: 02 9950 0054
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(a) would, or could reasonably be expected to, unreasonably affect that 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; or
(b) could reasonably be expected to prejudice the future supply of information to
the Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an
agency.
(2) Subsection (1) does not apply to trade secrets or other information to which
section 47 applies.
(3) Subsection (1) does not have effect in relation to a request by a person for access
to a document:
(a) by reason only of the inclusion in the document of information concerning
that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an undertaking where the person making the
request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an organisation where the person making the
request is the organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an
undertaking that is carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
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(5) For the purposes of subsection (1), information is not taken to concern a person in
respect of the person's professional affairs merely because it is information concerning the
person's status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).
Consideration of Section 47G
Section 47G(1)(a)
I note in relation to the information under consideration the following facts:
• The information relates to the third party, which is an “organisation” pursuant to
the legislation;
This brings the information into consideration under s 47G of the FOI Act. The question,
therefore, for consideration is whether disclosure of the information “w
ould, or could
reasonably be expected to, unreasonably affect […] that organisation or undertaking in
respect of its lawful business, commercial or financial affairs”.
AUSTRAC holds high value on information received by third parties who provide certain
information to AUSTRAC to fulfill their reporting entity obligations. This includes information
of the kind sought. With that in mind, AUSTRAC is reasonably expected to protect the
information it holds, including the information sought.
Although consent is not a prerequisite for release of government held information captured
within a FOI request, consent holds considerable weight in determining the reasonableness
of releasing third party information not directly relating to you.
The evidence before me does not indicate a relationship exists between yourself and the
third party that would persuade me release of particular contact details would be
reasonable despite the lack of consent. I am satisfied that to reveal any detail concerning
particular contact details provided directly to AUSTRAC in confidence, would be an
unreasonable disclosure of third party business information in the circumstances.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
Despite these factors, AUSTRAC have gone to some length to assist your desire to contact
the Third Party. AUSTRAC invested time and effort on your behalf to identify potential
contact details of the third party that may be of assistance to you.
Our research of the company revealed a range of information we happily provided you to
assist your endeavors to contact the third party. AUSTRAC provided you the results of an
ABN search, as well as the fact we determined Investbit trades as Binance. AUSTRAC
identified Binance’s website for you and provided a direct weblink which identified a range
of contact details. All of this information was provided to you in our email dated 16
December 2021 in the hope AUSTRAC’s efforts was of some assistance for you as a member
of the community.
I’m satisfied that the third party has an identified and appropriate channel of
communication open to the public which could reasonably be utilised. This leads me to be
of the view that in light of the fact the third party has a designated channel of
communication, any release of the third party’s details provided directly to AUSTRAC in
confidence would not be appropriate in the circumstances.
Section 47G conclusion
For the reasons set out above, I have decided that the documents sought are conditionally
exempt under s 47G(1) of the FOI Act.
Step two: whether giving access to the documents would be contrary to the
public interest
Having determined above that the documents sought contain information concerning
a business, and that the documents are conditionally exempt under s 47G of the FOI Act, I
am required to determine under s 11A(5) of the FOI Act whether access to the document
would, on balance, be contrary to the public interest.
The FOI Act sets out the following in relation to release of documents.
Section 11A – Access to documents on request
Scope
(1) This section applies if:
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(a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister
for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has been
paid.
(2) This section applies subject to this Act
Note: Other provisions of this Act are relevant to decisions about access to documents, for
example the following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access – general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act,
subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a
particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not
in response to a request (see section 3A (objects – information or documents otherwise
accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt
at a particular time unless (in the circumstances) access to the document at that time would, on
balance, be contrary to the public interest.
Note 1:
Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:
A conditionally exempt document is an exempt document if access to the document
would, on balance, be contrary to the public interest (see section 31B (exempt
documents for the purposes of Part IV)).
Note 3:
Section 11B deals with when it is contrary to the public interest to give a person
access to the document
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a
particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in
subsection 4(1).
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
Section 11B of the FOI Act sets out factors that are relevant to the determination of
whether access to the document would, on balance, be contrary to the public interest for
the purposes of s 11A(5) of the FOI Act. It sets out as follows.
Section 11B – Public interest exemption – factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt
document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the documents in the public include whether access to the document
would do any of the following:
(a) promote the objects of the Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document
would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government,
or cause a loss of 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 document 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.
Guidelines
In working out whether access to the document would, on balance, be contrary to the public interest,
an agency or Minister must have regard to any guidelines issued by the Information Commissioner
for the purposes of this subsection under section 93A.
In relation to the matters the FOI Act sets out as favouring access (set out above), I note the
following:
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P: 02 9950 0055
F: 02 9950 0054
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The release of the document is nominally in line with the objects of the FOI Act set
out in s 3. That is, the documents do constitute information held by the Government.
However, the information has nothing to do with government decision making and
therefore has no capacity to advance public participation in government processes,
or otherwise subject the Government to increased scrutiny.
The document in question is not likely to inform public debate, therefore this
consideration is not applicable.
The document in question does not relate to public expenditure, therefore this
consideration is not applicable.
Access to the third party information would not provide the applicant with access to
their own personal information.
I also note the following factors that do not favour access:
Disclosure could reasonably be expected to prejudice the third party’s ongoing
business affairs in respect to community contact, as set out in the consideration of
s 47G. I have discussed this at length above.
The evidence before me does not indicate that there is a relationship between you
and the third party such that they would contemplate or approve of me giving you
their personal information.
Disclosure of the information is reasonably capable of having serious consequences
for the third party, including alterations and changes to the contact details provided
directly to AUSTRAC for the purposes of direct contact, rather than community
contact.
Weighing up the competing interests
After weighing up all the relevant factors, I consider that access to the document would be
contrary to the public interest. I consider that the factors in favour of the disclosure, i.e. that
the release is nominally in line with the objects of the FOI Act, are not strong enough to
support a release. I consider that considerably more weight should be applied to the factors
against the release of the requested documents.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
Decision
I have decided that the information requested is conditionally exempt under s 47G(1) of the
FOI Act and that disclosing that information would be contrary to the public interest for the
purposes of s 11A(5) of the FOI Act. As such I do not propose to release the requested
information. I note that as I do not propose to release the requested information, I am not
required to consult the third party for the purposes of s 27(4) of the FOI Act.
Evidence/Material on which my findings are based
In reaching my decision to release or exempt the documents in full or in part, I relied on the
following documentary evidence:
Freedom of Information Act 1982;
Guidelines issued by the Australian Information Commissioner;
the scope of the request received by AUSTRAC from you on 7 December 2021;
our email correspondence dated 16 December 2021.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
ATTACHMENT B
Review Rights
The following review rights apply.
Section 54 of the FOI Act gives you the right to apply for an internal review of the decision
refusing to grant access to documents. An application for a review of the decision must be
made in writing within 30 days of receipt of this letter. No particular form is required;
however, it would assist the decision maker if the application grounds on which it is
considered that the decision should be reviewed were set out.
Under s 53A of the FOI Act you may have ground for review under s 54 if you can establish
that there are other documents held by AUSTRAC which have not been released.
Applications for review of the decision should be addressed t
o xxxxxxxxxxx@xxxxxxx.xxx.xx
or via mail to:
Australian Transaction Reports and Analysis Centre
Freedom of Information
PO BOX 5516
WEST CHATSWOOD NSW 1515
It is preferred you seek internal review before seeking review of the decision by the
Australian Information Commissioner.
Office of the Australian Information Commissioner
One of the three primary functions of the Office of the Australian Information Commissioner
is the oversight of the Freedom of Information Act 1982 and review of decisions made by
agencies and ministers under that Act. If you are dissatisfied with the result of an FOI
request, you may seek an Information Commissioner (IC) review.
IC review applications can be made t
o xxxxxxxxx@xxxx.xxx.xx or via mail to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
For further information about IC reviews please refer to the OAIC website.
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
www.austrac.gov.au
Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal (AAT) after the OAIC has
made a decision. The AAT may also review a decision by the OAIC not to undertake a review.
An application must be submitted to the AAT within 28 days of being notified of the decision
by the OAIC. The AAT can be contacted on 1300 366 700.
Complaints
If you are not satisfied with the way AUSTRAC has processed your Freedom of Information
request, you can complain to the OAIC. A complaint must be made in writing and must
identify AUSTRAC as the agency that made the decision. There is no particular form required
to make a request, however, the complaint should set out the grounds on which it is
considered the action taken in relation to the FOI request should be investigated.
Complaints can be made to the OAIC at the address listed above.
For up to date information please visit the OAIC website at
https://www.oaic.gov.au
Correspondence: PO Box 5516, West Chatswood NSW 1515
P: 02 9950 0055
F: 02 9950 0054
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