LEX 47465
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Joanna (Position Number 62329542) Information
Access Officer, Information Access Unit, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
16 March 2022
FOI reference number:
LEX 47465
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Verity Pane,
Freedom of Information Request: LEX 47465
Decision
1.
The Department of Veterans’ Affairs (the
department) has undertaken a reasonable search of its
records and has identified forty five (45) documents relevant to your request.
2.
I have made a decision to refuse access to the documents pursuant to section 34 of the
Freedom of
Information Act 1982 (Cth) (
FOI Act).
3.
The documents that I have chosen to refuse access to, are set out in
Schedule 1, together with
applicable exemption provisions.
Authority to make decision
4.
I, Joanna (Position Number 62329542), Information Access Officer, Information Access Unit, 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.
Summary
5.
On 14 January 2022, you made a request for access to documents in the possession of the department.
Your request was as follows:
1
On 22 November 2021 the Department issued a FOI decision and statement of reasons for
FOI reference number LEX 45443.
Paragraph 21 of that decision stated that the FOI had captured 238 documents, which the
Department had already taken 25 hours to search and col ate ("Searching and col ating
documents has taken 25 hours"), and that it would take 10 hours to prepare a schedule of
documents listing those 238 documents.
…
As a FOI is for documents I apply for the first page of each of those 238 documents, but
exclude any of the 238 documents that is just an email or draft or duplicate as irrelevant to
the scope of this FOI.
6.
In your application, you also stated the following:
Now the Department could consider and assess each first page of these less than 238
individual documents already col ated by the Department, but as I only desire the document
schedule itself, the Department could significantly reduce the time required to process this
FOI by producing such a document schedule under s 17, and it would not be necessary to
assess and consider anything but the title/subject of these less than 238 individual documents
(given emails and drafts and duplicates are excluded). That saves everyone time and effort.
7.
As an extension of time was applied to process your request in accordance with section 15AB of the
FOI Act, a decision on your request is due by 16 March 2022.
8.
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
9.
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 refuse access to the
documents follows.
10. 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 document that fal 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;
2
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 34 Cabinet documents; and
the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI
Act (
FOI Guidelines).
11. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Searches undertaken
12. In your request you identified the documents that come within the scope of your application as being
the 238 documents referred to in paragraph 21 of a decision dated 22 November 2021, which has the
reference LEX 45443. I have considered the content of that decision general y and paragraph 21
specifically. The documents referred to in paragraph 21 of the decision are stored on the department’s
Protected Network database, Fortress. Fortress is a secure ICT environment and is deliberately
separate and isolated from the department’s other databases, because it stores documents which
contain “Protected” information (such as Cabinet material).
13. Searches were undertaken on Fortress to identify the documents within the scope of your application.
240 pages were identified as the first page of the documents that were considered in LEX 45443.
However, one hundred and eighty four (184) of these pages were emails. Further, eleven (11) of these
pages were documents in a draft version or were marked as a ‘draft’. As you have indicated that emails
and draft documents are not within the scope of the request, these documents are not considered to
be within the scope of your request.
14. As such, I have located forty five (45) documents that come within the scope of your request.
Reasons for decision
15. I have decided to
refuse access to the documents within the scope of your request in accordance with
the fol owing exemptions in the FOI Act:
Cabinet documents (section 34)
16. Section 34 of the FOI Act states the following
(1)
A document is an exempt document if:
(a)
both of the following are satisfied:
3
link to page 4
(i)
it has been submitted to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted;
(ii)
it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet; or
(b)
it is an official record of the Cabinet; or
(c)
it was brought into existence for the dominant purpose of briefing a Minister on a
document to which paragraph (a) applies; or
(d)
it is a draft of a document to which paragraph (a), (b) or (c) applies.
…
(3)
A document is an exempt document to the extent that it contains information the disclosure
of which would reveal a Cabinet deliberation or decision, unless the existence of the
deliberation or decision has been officially disclosed.
17. The information within the scope of your request is information that was brought into existence for
the dominant purpose of briefing a Minister on a document to which section 34(1)(a) applies, namely
a document that has been submitted to or was bought into existence for a Cabinet submission.
18. In these circumstances, I have considered the context of the documents and the purpose of their
creation. The documents considered in your application are documents which were prepared by the
department in preparation of a New Policy Proposal (
NPP).
19. Ministerial briefings on proposed NPPs are intrinsically linked to in the Cabinet process. NPPs are
proposals that intent to change a current policy position or decision, or introduces a new policy
position or decision, and are either adopted or rejected by Cabinet. NPPs must be:
a. Approved by the relevant responsible portfolio Minister, and
b. Brought to the Expenditure Review Committee, which is a committee of the Cabinet, and the
Cabinet for Budget approval, and are considered part of the Cabinet process.
1
20. The sensitive, Cabinet nature of the documents is also supported by the fact that the documents are
marked with a “Sensitive: Cabinet” marker. Whilst this marker does not, on its own, reflect the
sensitivity of the material, it supports the Cabinet nature of the document.
21. Additional y, as mentioned above, the documents within the scope of your application were saved on
the department’s secure environment database, Fortress. Access to the database requires high-level
Commonwealth protective security clearance. The information is not located or saved in the
department’s general databases, such as TRIM, which a wider range of staff have access to. The fact
that the information is saved in this database reinforces the sensitive nature of the material and I have
taken this into consideration.
1
Re Gothe-Snap; Chief Executive Officer, Services Australia [2021] AATA 2710 at [26].
4
22. Given the above, I am satisfied that disclosure of the information could reasonably be expected to
have a detrimental effect on Cabinet processes, and therefore the information within the scope of
your application is exempt under section 34(1)(c) of the FOI Act. As section 34 of the FOI Act is not a
conditional exemption, I am not required to consider a public interest test.
Your rights of review
23. 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
24. 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.
25. You can make your application for Internal Review in one of the following ways:
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
26. 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
27. 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
5
28. If you wish to discuss this decision, please do not hesitate to contact the Information Access Unit
using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Joanna (Position Number 62329542)
Information Access Officer
Information Access Unit
16 March 2022
6
LEX 47465
Schedule 1
Schedule of documents
Applicant:
Verity Pane
Decision date:
16 March 2022
FOI reference number:
LEX 47465
7
Document
Document description
Page
Decision
Exemption
reference
number
provision
1. Cabinet document
1 Withheld
S 34
2. Cabinet document
2 Withheld
S 34
3. Cabinet document
3 Withheld
S 34
4. Cabinet submission – Attachment
4 Withheld
S 34
5. Cabinet document
5 Withheld
S 34
6. Cabinet submission – Attachment
6 Withheld
S 34
7. Cabinet submission – Attachment
7 Withheld
S 34
8. Cabinet submission – Attachment
8 Withheld
S 34
9. Cabinet submission – Attachment
9 Withheld
S 34
10. Cabinet submission – Attachment
10 Withheld
S 34
11. Cabinet submission – Attachment
11 Withheld
S 34
12. Cabinet submission – Attachment
12 Withheld
S 34
13. Cabinet submission – Attachment
13 Withheld
S 34
14. Cabinet submission
14 Withheld
S 34
15. Cabinet submission
15 Withheld
S 34
16. Cabinet submission
16 Withheld
S 34
17. Cabinet submission – Attachment
17 Withheld
S 34
18. Cabinet submission – Attachment
18 Withheld
S 34
19. Cabinet document
19 Withheld
S 34
20. Cabinet submission – Attachment
20 Withheld
S 34
21. Cabinet submission
21 Withheld
S 34
22. Cabinet submission – Attachment
22 Withheld
S 34
23. Cabinet document
23 Withheld
S 34
24. Cabinet submission – Attachment
24 Withheld
S 34
25. Cabinet submission – Attachment
25 Withheld
S 34
26. Cabinet document
26 Withheld
S 34
27. Cabinet submission – Attachment
27 Withheld
S 34
28. Cabinet submission – Other department
28 Withheld
S 34
29. Cabinet submission – Other department
29 Withheld
S 34
30. Cabinet submission – Other department
30 Withheld
S 34
31. Cabinet submission – Other department
31 Withheld
S 34
32. Cabinet submission – Other department
32 Withheld
S 34
33. Cabinet submission – Other department
33 Withheld
S 34
34. Cabinet submission – Other department
34 Withheld
S 34
35. Cabinet submission – Other department
35 Withheld
S 34
36. Cabinet submission response overview
36 Withheld
S 34
37. Cabinet submission
37 Withheld
S 34
38. Cabinet submission – Attachment
38 Withheld
S 34
39. Cabinet submission – Attachment
39 Withheld
S 34
40. Cabinet submission – Attachment
40 Withheld
S 34
41. Cabinet submission – Attachment
41 Withheld
S 34
42. Cabinet document
42 Withheld
S 34
43. Cabinet submission – Attachment
43 Withheld
S 34
44. Cabinet submission – Other department
44 Withheld
S 34
45. Cabinet document
45 Withheld
S 34
8
LEX 47465
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 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 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).
9
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 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 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 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)
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
10
(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.
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 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 conditionally 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:
11
(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).
34
Cabinet documents
General rules
(1)
A document is an exempt document if:
(a)
both of the following are satisfied:
(i)
it has been submitted to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted;
(ii)
it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet; or
(b)
it is an official record of the Cabinet; or
(c)
it was brought into existence for the dominant purpose of briefing a Minister on a
document to which paragraph (a) applies; or
(d)
it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2)
A document is an exempt document to the extent that it is a copy or part of, or contains an
extract from, a document to which subsection (1) applies.
(3)
A document is an exempt document to the extent that it contains information the
disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of
the deliberation or decision has been officially disclosed.
Exceptions
(4)
A document is not an exempt document only because it is attached to a document to which
subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5)
A document by which a decision of the Cabinet is officially published is not an exempt
document.
(6)
Information in a document to which subsection (1), (2) or (3) applies is not exempt matter
because of this section if the information consists of purely factual material, unless:
(a)
the disclosure of the information would reveal a Cabinet deliberation or decision;
and
(b)
the existence of the deliberation or decision has not been officially disclosed.
12
Document Outline
