FOI 47368
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Sara (Position Number 62250510), Information Law
Section, Legal Services and Audit Branch, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
7 February 2022
FOI reference number:
FOI 47368
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Verity Pane,
Freedom of Information Request: FOI 47368
Decision
1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified four (4) documents relevant to your request.
2.
I have made a decision to grant access in part to 2 documents and access in ful to 2
documents.
3.
The documents that I have chosen to grant access in part are set out in Schedule 1, together
with applicable exemption provision[s]. 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 Freedom of Information Act 1982 (Cth) (FOI Act).
Authority to make decision
4.
I, Sara (Position Number 62250510), Information Access Officer, Information Law Section,
am an officer authorised by the Secretary of the Department to make decisions about access
to documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
1
Summary
5.
On 6 January 2021 you made a request for access to documents in the possession of the
Department. Your request was made in the fol owing terms:
“..fol ow-up to that FOI, which did contain a table showing the proposed age, gender,
state/territory location, and recent contact or not with CCF distribution for that telephone
only survey (page 2 of that released document), I apply for copy of the document/s that
records the demographics of the sample data obtained by that survey (what the sample
population demographics were, not what it was proposed to be).
If it is easier to access, the document may be from the most recently carried out client
satisfaction survey report.
I also seek copy of any document that records why Veterans' Affairs persists in using only
a telephone survey, which results in an over-representation of much older veterans and
war widows, given people under 50 typical y do not respond to CATI cal s (which come
from an unlisted number), especial y since CATI is far more expensive than CASI…”
6.
As no extensions of time have been applied to process your request, a decision on your
request is due by 7 February 2022.
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 documents fol ow.
9.
I have taken the fol owing 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 document that fal within the scope of your request;
2
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;
10. Sections 3, 11 and 11A of the FOI Act which give the Australian community a legal y
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the fol owing provisions of the FOI Act relevant to my
decision:
- 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);
11. A ful extract of al FOI Act provisions used to make my decision are provided in Schedule 2.
Reasons for decision
12. I have decided to grant access to the documents within the scope of your request, subject to
the fol owing exemptions in accordance with the FOI Act:
Public interest conditional exemptions--certain operations of agencies (section 47E)
13. Section 47E of the FOI Act provides that a document is conditional y exempt if its disclosure
would, or could reasonably be expected to, do any of the fol owing:
(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, or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
3
14. I have redacted the surnames and contact details of non-Senior Executive staff members
within the documents to give effect to this conditional exemption, other than the names of
those non-Senior Executive staff members whose contacts details you already have or where
they are already known to you.
15. The Department’s role is to provide support and information to Veterans and their
dependants and other categories of people. It is important that the Department is able to
continue to provide these services 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 al Departmental resources
are managed as efficiently as possible.
16. I consider that the 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.
17. Further, the release of this information could have a substantial adverse effect on the
management or assessment of personnel as wel 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 wel being and safety of staff. Relevantly, some staff
have been targeted, insulted or harassed based on disclosure of their details. This presents
chal enges 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.
18. Accordingly, I have decided that parts of the documents listed as exempt in accordance with
this provision in Schedule 1, meet the criteria for this conditional exemption. Where a
document is assessed as conditional y exempt, access must be given subject to the public
interest test in accordance with section 11A(5) of the FOI Act.
19. 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.
4
Application of the public interest test:
20. Section 11A(5) provides that an agency must give the person access to the document if it is
conditional y exempt at a particular time unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest.
21. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
22. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the management or assessment of personnel by an agency; and
(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.
23. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
24. 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)
25. Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person
(including a deceased person).
26. 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:
5
(a)
whether the information or opinion is true or not;
(b)
whether the information or opinion is recorded in a material form or not.
27. The elements of ‘personal information’ are:
(a)
it relates only to a natural person (not, for example, a company);
(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.
28. If information is personal information, it wil be conditional y 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 wel 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.
29. The documents contain the surnames, contact details and signature of non-Senior Executive
staff members. Release of this information would identify these individual staff members.
Further as noted above, some staff have been targeted, insulted or harassed based on
disclosure of their details. I therefore consider that this information meets the definition of
personal information and that it would be unreasonable to release this material.
30. Accordingly, I have decided that the parts of documents 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 conditional y exempt, access must be given subject to the
public interest test in accordance with section 11A(5).
6
Application of the public interest test:
31. Section 11A(5) provides that an agency must give the person access to the document if it is
conditional y exempt at a particular time unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest.
32. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act.
33. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy.
(b)
disclosure could reasonably be expected to prejudice the management function of
an agency.
34. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
35. 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.
Access to documents
36. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
37. 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.
38. 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 wil be published on the Department’s
FOI Disclosure Log which can be accessed at http://www.dva.gov.au/about-dva/freedom-
7
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
39. 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.
Internal review
40. 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 wil be carried out by another officer within 30
days.
41. You can make your application for Internal Review in one of the fol owing 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
42. 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 fol owing 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
8
43. 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
44. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Law, Legal Services and Audit Branch
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,
Sara (Position Number 62250510)
Information Access Officer
Information Law Section
Legal Services and Audit Branch
7 February 2022
9
FOI 47368
Schedule 1
Schedule of documents
Applicant:
Verity Pane
Decision date:
7 February 2022
FOI reference number:
FOI 47368
Document Date of
Document description
Page Decision Exemption
reference document
number
provision
1.
30/09/2021 Information Brief for First Assistant Secretary
1
Partial 47E
Access 47F
2.
Undated Action Submission for Secretary
8
Partial 47E
Access 47F
3.
28/10/2021 ‘We asked, you said, we did’ – Client Satisfaction Survey
14 Ful
N/A
2021
Access
4.
Undated Excel spreadsheet provided by a research partner to
15 Ful
N/A
capture the demographics for the Client Satisfaction
Access
Survey
10
FOI 47368
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 fol owing:
(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 legal y 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
(i )
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 fol owing:
(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).
11
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 conditional y
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 conditional y exempt.
Note 2: A conditional y 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 conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(i )
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 conditional y
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 fol owing:
(a)
promote the objects of this Act (including al 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)
al ow a person to access his or her own personal information.
Irrelevant factors
(4)
The fol owing 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
12
(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.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(i )
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
(i )
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
(i )
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.
13
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 shal cause the applicant to be given notice in writing of the decision,
and the notice shal :
(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
(aa)
in the case of a decision to refuse to give access to a conditional y exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y 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;
(i )
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(i i)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (i ); 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).
47E
Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(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, 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 general y be given to a conditional y 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 conditional y 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 fol owing
matters:
(a)
the extent to which the information is wel 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;
14
(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 wel -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
wel -being, and, without limiting the generality of the foregoing, includes any of the
fol owing:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsel or;
(e)
a social worker.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
15
