FOI 47338
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Derek (Position Number 62255248), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
24 January 2022
FOI reference number:
FOI 47338
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Verity Pane
Freedom of Information Request: FOI 47338
Decision
1.
The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified three (3) documents relevant to your request. Additionally, in
accordance with section 17 of the Freedom of Information Act 1982 (
FOI Act), I have made a
decision to create and grant access to one (1) document that also meets the scope of your
request.
2.
Of the four (4) documents falling within scope of your request, I have made a decision to
grant full access to 2 documents and part access to 2 documents.
3.
The documents that I have chosen to grant access to are set out in
Schedule 1, together with
applicable exemption provisions. Where I have decided to grant access in part, I have
provided access to an edited copy of the documents, modified by deletions in accordance
with section 22(2) of the FOI Act.
Authority to make decision
4.
I,
Derek (Position Number
62255248), Information Access Officer, Information Law Section,
am an officer authorised by the Secretary of the Department to make decisions about access
1
to documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
Summary
5.
On 23 December 2021 you made a request for access to documents in the possession of the
Department. Your request was made in the following terms:
‘
I've heard DVA has a DVA Royal Commission Legal Team of about 25 people
working in DVA's General Counsel Division.
There is interest in the community as to what the purpose of this DVA Royal
Commission Legal Team is, what it does, what law firms have seconded their staff to
it, and how much this is all costing the taxpayer.
I seek copy of the following documents (it is likely to be easier for DVA to do as a
table rather than provide copy of the source documents as it will mean a lot less
work for DVA in redaction/consideration):
* the cost of all contractors employed within the DVA Royal Commission Legal
Team, broken down by law firm/personnel agency seconded from (with number of
contractors from that law firm/personnel agency) - cost may be at fortnightly,
monthly, or yearly basis as suits DVA
* the cost of all APS staff employed within the DVA Royal Commission Legal Team,
broken down by classification - cost may be at fortnightly, monthly, or yearly basis
as suits DVA
* copy of any position/duty statement for the positions within the DVA Royal
Commission Legal Team
* any other document directly relevant to what the purpose of this DVA Royal
Commission Legal Team is, what it does, what law firms have seconded their staff to
it, and how much this is all costing the taxpayer, that DVA reasonably believes gives
such context’
6.
As no extensions of time have been applied to process your request, a decision on your
request is due by 24 January 2022.
2
7.
I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the
Freedom of Information (Charges) Regulations 2019.
Material taken into account
8.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the document follows.
9.
I have taken the following material into account in making my decision:
the terms of your request;
the types of information and documents that are in the Department’s possession;
the content of the documents that fall within the scope of your request;
the availability of information relevant to your request, insofar as it determines the
practicality and ease in which the Department can create a document under section 17
of the FOI Act;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access
- Section 17 Requests involving use of computers etc (e.g. request for the
Department to create a document)
- Section 22 Access to edited copies with exempt or irrelevant material deleted
- Section 47 Documents disclosing trade secrets or commercially valuable
information
- Section 47E Public interest conditional exemptions--certain operations of agencies
- Section 47F Public interest conditional exemptions--personal privacy
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines); and
3
10. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
11. I have decided to
grant full access to 2 documents within the scope of your request and
part
access to 2 documents, subject to the following provisions in accordance with the FOI Act:
Creation of a document in response to your FOI request (section 17)
12. Part of your request sought access to
“the cost of all contractors employed within the DVA
Royal Commission Legal Team, broken down by law firm/personnel agency seconded from
(with number of contractors from that law firm/personnel agency) - cost may be at
fortnightly, monthly, or yearly basis as suits DVA”.
13. So that you can be provided with access to the information you have requested, the relevant
business area, the General Counsel Division, was required to extract the relevant data and
create a document in response to your request. This document is listed at
Schedule 1. This
document was created in accordance with section 17 of the FOI Act. The majority of the
information requested in this section 17 document is, or is scheduled to be, publicly
available on Aus Tender, an Australian government website which provides centralised
publication of Australian Government business opportunities, annual procurement plans and
contracts awarded
(https://www.tenders.gov.au/).
Documents disclosing trade secrets or commercially valuable information (section 47)
14. Section 47 of the FOI Act provides that a document is an exempt document if its disclosure
would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
15. Document 1 contains the number of contractors from each law firm/personnel agency
employed within the DVA Royal Commission Legal Team. I consider that this information has
a commercial value as disclosure would likely reveal the charge-out rates of the contractors
from those companies. It is generally accepted that fees and invoicing information is
4
information which has commercial value under section 47(1)(b).
16. In respect to the second limb of section 47(1)(b) and whether disclosure could reasonably be
expected to destroy or diminish that commercial value, the relevant information is known
only to the Department and its contractual providers and is not otherwise well known.
Revealing this information publicly would give other a competitive advantage to other
providers, thereby diminishing the commercial value of this information.
17. As section 47 of the FOI Act is not a conditional exemption, I am not required to consider a
public interest test.
Public interest conditional exemptions--certain operations of agencies (section 47E)
18. Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to, do any of the following:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an
agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an
agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an
agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an
agency.
19. I have redacted the names, individual salary information and other identifying details of non-
Senior Executive staff members contained within Document 4 to give effect to this
conditional exemption.
20. The Department’s role is to provide support and information to veterans and
their dependents and other categories of people. It is important that the Department is able
to continue to provide these services and to carry out the other legislative functions and
administrative and operational processes required of them. Certain processes and specific
channels of communication have been implemented which enable clients and other relevant
stakeholders to contact the Department in a way that ensures all Departmental resources
5
are managed as efficiently as possible.
21. I consider that release of the exempt information in these circumstances would adversely
affect the Department as the established lines of communication could then be bypassed. It
is reasonable to expect that this would disrupt and adversely affect the operations of the
Department.
22. Further, the release of this information could have a substantial adverse effect on the
management or assessment of personnel as well as an adverse effect on the proper and
efficient conduct of the operations of the agency including the inability of the Department to
retain staff or effectively manage the wellbeing and safety of our staff. Relevantly, some
staff have been targeted, insulted or harassed based on disclosure of their details. This
presents challenges in managing the welfare of staff and can affect the ongoing
management and retention of personnel by the Department. Consequently, in these
circumstances, it would not be in the public interest to release this information.
23. Accordingly, I have decided that parts of the document listed as exempt in accordance with
this provision in Schedule 1, meet the criteria for this conditional exemption. Where a
document is assessed as conditionally exempt, access must be given subject to the public
interest test in accordance with section 11A(5) of the FOI Act.
24. Where the document contains information exempt under section 47E of the FOI Act, an
edited copy has been prepared (pursuant to section 22 of the FOI Act) with these details
redacted.
Application of the public interest test:
25. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
26. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act, including:
(i)
inform the community of the Government’s operations, including, in
particular, the policies, rules, guidelines, practices and codes of conduct
6
followed by the Government in its dealings with members of the
community;
(ii)
enhance the scrutiny of government decision making.
27. I also considered the following factors which do not favour disclosure:
(a)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the management of an agency;
(b)
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.
28. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
29. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Public interest conditional exemptions--personal privacy (section 47F)
30. 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).
31. Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Privacy Act). Personal information is defined in section 6 of the Privacy Act
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;
(b)
whether the information or opinion is recorded in a material form or not.
32. The elements of ‘personal information’ are:
(a)
it relates only to a natural person (not, for example, a company);
7
(b)
it says something about the individual;
(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database;
(d)
the individual’s identity is known or is reasonably ascertainable using the
information in the document.
33. If information is personal information, it will be conditionally exempt if disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:
(a)
the extent to which the information is well known;
(b)
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;
(c)
the availability of the information from publicly accessible sources; and
(d)
any other matter I consider relevant.
34. Document 4 contains the individual salary information of non-Senior Executive staff
members. I consider that release of this individual salary information would or could
reasonably be expected to identify these individual staff members, due to the relatively
small number of staff members assigned to this team within the Department. I therefore
consider that this information meets the definition of personal information.
35. Further, I consider that the disclosure of this salary information would constitute an
unreasonable disclosure of personal information. Whilst the DVA Enterprise Agreement does
publish the Department’s salary rates, an individual’s assigned staffing level and associated
salary rate is determined as part of their personal employment contract with the
Department. The release of this information could have a substantial adverse effect on the
working arrangements and wellbeing of staff and the Department’s ability to effectively
manage the contractual arrangements, wellbeing and safety of our staff. Relevantly, some
staff have been targeted, insulted or harassed based on disclosure of their details. Disclosure
of this personal information risks exposing individuals to this treatment.
8
36. Accordingly, I have decided that the parts of Document 4 which are listed as exempt in
accordance with this provision in
Schedule 1, meet the criteria for conditional exemption.
Where a document is assessed as conditionally exempt, access must be given subject to the
public interest test in accordance with section 11A(5).
Application of the public interest test:
37. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
38. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act, including:
(i)
enhance the scrutiny of government decision making.
(b)
disclosure would promote effective oversight of public expenditure;
39. I also considered the following factors which do not favour disclosure:
(a)
disclosure could reasonably be expected to prejudice the fair treatment of
individuals;
(b)
disclosure could reasonably be expected to harm the interests of an individual or
group of individuals; and
(c)
disclosure could reasonably be expected to prejudice the management function of
an agency.
40. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
41. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
9
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
42. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
43. As explained above, some of the documents subject to your request contain exempt
information. On this basis, I have prepared the documents for release by removing that
exempt material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as well as at
Schedule 1.
Access to documents
44. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
45. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
46. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log which can be accessed at
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
47. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a more rapid
resolution of your concerns.
10
Internal review
48. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.
49. You can make your application for Internal Review in one of the following ways:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
OAIC review
50. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the following ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
51. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
52. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Law, Legal Services and Audit Branch
11
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Derek (Position Number 62255248)
Information Law Officer
Information Law Section
Legal Services and Audit Branch
24 January 2022
12
FOI 47338
Schedule 1
Schedule of documents
Applicant:
Verity Pane
Decision date:
24 January 2022
FOI reference number:
FOI 47338
Document
Date of
Document description
Page Decision
FOI Act
reference document
number
provisions
1
19/01/2022 Royal Commission Legal Team Contractors – s 17 Table
1
Part
s 17; s 47
release
2
23/06/2021 AP6 Legal Officer Position Description
1
Full
N/A
release
3
23/06/2021 EL1 Senior Legal Officer Position Description
1
Full
N/A
release
4
12/01/2022 List of APS Staff within DVA Royal Commission Legal
1
Part
s 47E; s 47F
Team
release
13
FOI 47338
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(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).
14
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).
11B
Public interest exemptions — 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 document in the public interest include whether access to
the document would do any of the following:
(a)
promote the objects of this 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
15
(5)
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.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
17
Requests involving use of computers etc
(1)
Where:
(a)
a request (including
a request in relation to which
a practical refusal reason exists)
is made in accordance with the requirements o
f subsection 15(2) to
an agency;
(b)
It appears from the
request that the desire of th
e applicant is for information that
is not available in discrete form in writt
en documents of the
agency; and
(ba)
it does not appear from th
e request that th
e applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
the agency could produce a writt
en document containing the information in
discrete form by:
(i)
the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii)
the making of a transcript from a sound recording held
in the agency;
the agency shall deal with th
e request as if it were
a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if
the agency had such
a document in its possession.
(2)
An agency is not required to comply
with subsection (1) if compliance would substantially and
unreasonably divert the resources of th
e agency from its other operations.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
16
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
17
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
47
Documents disclosing trade secrets or commercially valuable information
(1)
A document is an exempt document if its disclosure under this Act would disclose:
(a)
trade secrets; or
(b)
any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.
(2)
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.
(3)
A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
Public interest conditional exemptions
47E
Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
18
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
47F
Public interest conditional exemptions—personal privacy
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(a)
the extent to which the information is well known;
(b)
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;
(c)
the availability of the information from publicly accessible sources;
(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
19
20