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FOI-2022-10020
7 April 2022
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear D
Freedom of Information request – access decision
I refer to your request received on 5 February 2022 for access to documents held by the Office of the
Commonwealth Ombudsman (the Office) under the
Freedom of Information Act 1982 (the FOI Act).
Decision and reasons
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to FOI
requests on behalf of the Office.
I have decided to grant access in part to 5 documents; and refuse access to parts of the documents
which constitute:
• the ful names, position titles and signatures of third parties under s 47F of the FOI Act;
• the surnames and signatures of staff within this Office under s 47F of the FOI Act;
• an internal email address of this Office under s 47E(d) of the FOI Act;
• commercial y valuable information of a supplier under s 47 of the FOI Act, and in the
alternative under s 47G(1)(a) of the FOI Act.
In making my decision I had regard to the terms of your request, the contents of the requested
documents, submissions from a third party, relevant provisions of the FOI Act, and Guidelines issued
by the Office of the Australian Information Commissioner under s 93A of the FOI Act
1 (the FOI
Guidelines).
A schedule of documents is available below at
Attachment A.
Information about your complaint and review rights is at
Attachment B.
FOI request
In your request dated 7 February 2022 you requested access to the following:
“…A
I refer to Contract Notice CN3831540 on the AusTender website. The supplier is Technology
One Limited (ABN: 84 010 487 180). The procurement was the subject of an open tender
process. A level of documentation commensurate with the scale, scope and risk of the
procurement must be maintained. I request access to the following documents:
a) the written document (or documents) setting out the contract associated with
CN3831540; and
b) any purchase orders associated with CN3831540; and
1 https://www.oaic.gov.au/freedom-of-information/foi-guidelines.
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c) any “request documentation”, as that term is defined in the Commonwealth
Procurement Rules, associated with CN3831540.
B
I refer to Contract Notice CN3761420 on the AusTender website. The supplier is Technology
One Limited (ABN: 84 010 487 180). The procurement was the subject of an limited tender
process. A level of documentation commensurate with the scale, scope and risk of the
procurement must be maintained. I request access to the following documents:
a) the written document (or documents) setting out the contract associated with
CN3761420; and
b) any purchase orders associated with CN3761420; and
c) any “request documentation”, as that term is defined in the Commonwealth
Procurement Rules, associated with CN3761420; and
d) a rule 10.5 report setting out i) the value and type of goods and services procured, and
ii) a statement indicating the circumstances and conditions that justified the use of limited
tender, and iii) a record demonstrating how the procurement represented value for money in
the circumstances.
Third party consultation
During the processing of your request, we consulted a third party that would potential y be affected
by the release of the documents falling within the scope of your request and that third party has
made a submission in support of an exemption contention.
As I have decided to grant access to parts of the documents, I cannot provide the released
documents until after al the opportunities for review or appeal by the supplier in relation to my
decision have run out
2.
Steps taken to locate documents
To locate the requested documents, we have searched our electronic file management system using
the information provided in your request (contract notice reference numbers) and consulted with
relevant internal staff to retrieve records. I am satisfied that this search was appropriate and all
documents relevant to your request have been identified where possible.
Our searches identified 5 documents within the scope of your request.
Exemption - Documents disclosing trade secrets or commercially valuable information – Section 47
I have decided to exempt from release information concerning the pricing, fees, services, technical
specifications, and products (‘commercial information’) of a supplier under s 47 of the FOI Act.
Under s 47(1)(b) of the FOI Act, a document must satisfy two criteria to be exempt from disclosure:
• the document must contain information that has a commercial value either to an agency or
to another person or body, and
• the commercial value of the information would be, or could reasonably be expected to be,
destroyed or diminished if it were disclosed
I will deal with each of these criteria in turn.
2 FOI Guidelines, [3.202] available at https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-3-
processing-and-deciding-on-requests-for-access.
2
Commercial value
In order to determine whether the requested material contains information that has a commercial
value, I have considered the following factors outlined in the FOI Guidelines:
• whether the information is known only to the agency or person for whom it has value or, if it
is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom
it relates
• whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that information
• whether the information is stil current or out of date (out of date information may no longer
have any value)
• whether disclosing the information would reduce the value of a business operation or
commercial activity
Having regard to the submissions of the supplier and the terms of the Head Agreement to which the
commercial information relates; I am satisfied that the commercial information is known only to a
limited number of Government entities and the supplier, and this limited disclosure does not detract
from its intrinsic commercial value.
Based on my examination of the commercial information I am satisfied that the supplier has
expended significant resources and carried out substantial research and development to provide the
services to which the commercial information relates. For this reason, I consider that the information
confers a competitive advantage on the supplier and a genuine arm’s length buyer would be
prepared to pay to obtain that information.
The commercial information is still current as it relates to an ongoing contract for service which has
not expired or been terminated.
In my view, release of the information would reveal how such products are developed and therefore
would reduce the value of the commercial activity of the supplier.
For these reasons, I am satisfied that the commercial information has commercial value.
Disclosure would, or could reasonably, destroy or diminish commercial value
I have had regard to the market in which the supplier operates being the supply of enterprise
solutions (integrated information sharing systems) and the highly technical nature of the commercial
information.
Based on my examination of the commercial information, I consider that disclosure would reveal:
• confidential pricing information about the services provided by the supplier
• detail about the products and service offerings of the supplier, including information about
how those products are implemented and ongoing support services
In my view, maintaining confidentiality in respect of the pricing information of a supplier is critical to
the commercial viability of that business.
If competitors or potential customers became aware of the pricing information of the supplier, it
could reasonably be expected to affect the ability of the supplier to competitively enter into future
commercial arrangements or negotiations.
I have considered that the commercial information is highly technical in nature, as the information
describes in detail the functionality of the relevant products. Release of this information would
diminish its commercial value by making this information available to competitors without significant
investment.
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I am satisfied that the commercial value of this information could reasonably be diminished if the
information was disclosed.
Public Interest Conditional Exemption – business – Section 47G of the FOI Act
In the alternative, I have decided to refuse access to the commercial information under s 47G(1)(a) of
the FOI Act.
Section 47G conditionally exempts documents where disclosure would disclose information
concerning a person in respect of his or her business or professional affairs, or concerning the
business, commercial or financial affairs of an organisation or undertaking (business information),
where the disclosure of the information:
• would, or could reasonably be expected to, unreasonably affect the person adversely in
respect of his or her lawful business or professional affairs of that organisation or
undertaking in respect of its lawful business, commercial or financial affairs (s 47G(1)(a)).
The FOI Guidelines explain that the business information exemption is intended to protect the
interests of third parties dealing with the Government. The operation of s 47G depends on the effect
of disclosure rather than the precise nature of the information itself
3. Business information
I am satisfied that the commercial information in the documents relates to the money-making affairs
of the supplier as opposed to its private or internal affairs. As the material directly relates to the
services provided as part of a commercial transaction, I consider the information is business
information for the purpose of s 47G of the FOI Act.
Disclosure would unreasonably affect business, commercial or financial affairs
In deciding whether disclosure of a document containing business information would be
unreasonable for the purpose of s 47G(1)(a), a decision maker must balance the public interest and
the private interests of the business.
I consider that as the commercial information relates to the expenditure of public funds by this Office
there is a moderate public interest in ensuring service providers are properly performing contractual
obligations and the Office is appropriately procuring services. However, I note that information about
the contract is already publicly available on the Austender website
4. I have considered that the commercial information was obtained from the supplier for the purpose of
giving effect to the contractual arrangement for services, and this information has been expressly
protected by confidentiality in the relevant head agreement. There is a strong private interest in the
supplier being able to preserve the confidentiality of their commercial information to enable the
supplier to maintain and carry on a profitable business.
In my view, as the commercial information is not otherwise publicly available, and considering the
detrimental effect disclosure would have on the supplier, disclosure would be unreasonable in these
circumstances.
Disclosure not in the public interest
Subsection 11A(5) of the FOI Act provides that, if a document is conditional y exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest'.
I consider that disclosure would promote the objects of the FOI Act, including to inform the
community of the operations of this Office, in particular the expenditure of public monies. I have
afforded minor weight to this factor as the total value of the contracts are publicly available.
3 FOI Guidelines, [6.184] – [6.185].
4 AusTender Homepage: AusTender (tenders.gov.au).
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I consider that disclosure would prejudice the commercial operations of a private business and could
reasonably be expected to prejudice the ability of this Office to obtain confidential information in the
future. I have given significant weight to these factors as I believe there is a strong public interest in
ensuring government agencies are able to enter into commercial arrangements to deliver services
and carry out legislative functions.
On balance, I am satisfied that the commercial information is contrary to the public interest to
disclose at this time.
Public Interest Conditional Exemption – Personal privacy – Section 47F of the FOI Act
I have decided to refuse access to the ful names, position titles and signatures of third parties and
the surnames and signatures of staff in this Office under s 47F of the FOI Act.
Section 47F conditionally exempts a document to the extent that its disclosure would involve the
unreasonable disclosure of personal information about a person.
Personal information
Section 4(1) of the FOI Act provides that ‘personal information’ has the same meaning as in the
Privacy Act 1988 (the Privacy Act). Section 6(1) of the Privacy Act provides:
‘personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable:
(a)
whether the information or opinion is true or not; and
(b)
whether the information or opinion is recorded in a material form or not’
The identity of the relevant individuals is reasonably ascertainable from the inclusion of their full
names and their signatures. I am therefore satisfied that the relevant information constitutes
personal information under the definition set out in section 4 of the FOI Act.
Disclosure unreasonable
If information is personal information, it wil be conditional y exempt if its disclosure would be
'unreasonable'. In considering whether disclosure would be unreasonable, subsection 47F(2) of the
FOI Act requires me to take into account:
• the extent to which the information is well known
• whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document
• the availability of the information from publicly accessible sources,
• any other matters that I consider relevant.
The FOI Guidelines set out further information to which decision makers must have regard when
determining whether disclosure would be unreasonable, including
5:
• the nature, age, and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency’s col ection and use of the information
5 FOI Guidelines, [6.143].
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• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
• whether disclosure of the information might advance the public interest in government
transparency and integrity.
As per the factors set out in the FOI Guidelines, and s 47F of the FOI Act, I have turned my mind to
whether disclosure would be unreasonable in this particular case.
In respect of the personal information of third-party individuals I have considered the following
factors:
• the personal information which appears in the documents relates to agreements which are
current and therefore the information remains relevant
• the personal information is not otherwise publicly available or otherwise well known
• there is a limited number of people who are aware that the individuals are known to be
associated with the matters dealt with in the documents
• disclosure is not likely to advance the public interest in government and transparency,
particularly noting relevant details about the contracts are publicly available on Austender.
In respect of the personal information of staff in this Office:
• the information is included on documentation for the purpose of a commercial arrangement
and for this reason the information is not well known or otherwise publicly available
• As this FOI request has been made through the Right to Know website
6 I consider that
release would result in immediate dissemination of the personal information into the public
domain
• the information remains current and accurate
• the ordinary duties of the relevant staff do not involve public facing contact or complaint
handling functions. For this reason, I do not believe that disclosure would advance the ability
of the public to raise complaints with the Ombudsman about public administration.
For these reasons, I consider that release of the personal information of the relevant individuals
would be unreasonable in the circumstances.
Disclosure not in the public interest
Subsection 11A(5) of the FOI Act provides that, if a document is conditional y exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest'.
While it is in the public interest to promote effective oversight of public expenditure and inform the
public on the operations of this Office I have afforded minor weight to these factors as the
information about the relevant contract is publicly available.
In my opinion, the public interest is best served by withholding this information on the ground that
release of this information could reasonably be expected to prejudice the protection of a person's
right to safety and privacy.
I have concluded that the relevant material is not required to be disclosed because disclosure at this
time would be, on balance, contrary to the public interest.
6 https://www.righttoknow.org.au/request/documents_pertaining_to_procurem#outgoing-17098.
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Public Interest Conditional Exemption – certain operations of agencies – section 47E of the FOI Act
I have decided to refuse access to an internal operational email address of this Office under s 47E(d)
of the FOI Act.
Section 47E(d) relevantly provides:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
…
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of the agency.
For a document to be conditional y exempt under s 47E(d) of the FOI Act, it would need to be shown
that disclosure would, or could reasonably expected to, have a substantial adverse effect on the
proper and efficient conduct of the operations of an agency.
The relevant email address is not publicly available, and it generally only used for internal
correspondence between staff within this Office. As a result, there is a limited number of staff who
are responsible for managing incoming correspondence to this email address.
The relevant email address is generally only used for matters which relate to the financial activities of
the Ombudsman’s Office. In my view, any increase in unrelated communications to this email
address would amount to a substantial increase in workload on staff performing work concerning the
financial activities of the Ombudsman, and would directly impact on their ability to carry on their
expected duties.
For these reasons, I have concluded that release would have a direct and substantial adverse impact
on the financial operations of the Ombudsman’s Office and that the email address is conditionally
exempt under s 47E(d) of the FOI Act.
Disclosure not in the public interest
Subsection 11A(5) of the FOI Act provides that, if a document is conditional y exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest'.
I consider that disclosure would promote the objects of the FOI Act, including to inform the
community of a minor aspect of the operations of this Office. I have afforded minor weight to this
factor as disclosure would reveal very limited information about the work of the Commonwealth
Ombudsman.
In my view, disclosure of the relevant email address could be reasonably expected to prejudice the
operations of this Office. I find that moderate weight should be given to the reasonable expectation
that disclosure would divert resources of the Ombudsman’s Office from the performance of their
usual duties. It is in the public interest that government agencies are able to effectively perform their
activities, including compliance activities in accordance with Commonwealth procurement policies.
On balance, I am satisfied that disclosure of the relevant email address would be contrary to the
public interest.
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Contact
You may contact me via email to
xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx, via telephone on
1300 362 072 or by post to Commonwealth Ombudsman GPO Box 442 Canberra ACT 2601.
Yours sincerely
Gregory Parkhurst
Senior Legal Officer
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Attachment A – Schedule of documents
Freedom of Information Request FOI-2022-10020
*NOTE: where the schedule below refers to section 47 of the FOI Act as the relevant exemption – in accordance with the
reasons above, in the alternative, the documents are exempt under s 47G(1)(a).
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
1.
19 March 2021
13
Schedule 4: Order and Contract Partial Access Section 47(1)(b) - Documents disclosing commercial y
details
valuable information (commercial information)
Section 47F – Personal Privacy (ful names and position title
of third party, Ombudsman staff surnames and signature)
Section 47E(d) – Certain operations of agencies (internal
email address)
2.
7 April 2021
1
Section 23 Approval Record
Partial Access Section 47(1)(b) - Documents disclosing commercial y
valuable information (commercial information)
Section 47F – Personal Privacy (Ombudsman staff surnames)
3.
11 November 2021 1
Section 23 Approval Record
Partial Access Section 47(1)(b) - Documents disclosing commercial y
valuable information (commercial information)
Section 47F – Personal Privacy (Ombudsman staff surnames)
4.
15 November 2021 107
Change Order
Partial Access Section 47(1)(b) - Documents disclosing commercial y
valuable information (commercial information)
9
Freedom of Information Request FOI-2022-10020
*NOTE: where the schedule below refers to section 47 of the FOI Act as the relevant exemption – in accordance with the
reasons above, in the alternative, the documents are exempt under s 47G(1)(a).
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
Section 47F – Personal Privacy (names and position title of
third party, Ombudsman staff signature)
5.
31 August 2017
128** Head Agreement for the
Partial Access Section 47(1)(b) - Documents disclosing commercial y
provision of financial
valuable information (commercial information)
management information
Section 47F – Personal Privacy (names and signatures of
systems and services
third parties)
**33 pages exempt in ful
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Attachment B – FOI Review Rights
Internal review
You can request internal review within 30 days of you receiving this decision. An internal
review will be conducted by a different officer from the original decision-maker.
No particular form is required to apply for review although it wil assist your case to set out the
grounds on which you believe that the original decision should be changed. Applications for
internal review can be made:
• via email to
xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx
• by mail to Commonwealth Ombudsman GPO Box 442 Canberra ACT 2601
If you choose to seek an internal review, you will afterward have a right to apply for
Information Commissioner review (IC review) of the internal review decision.
Information Commissioner review or complaint
You also have the right to seek IC review of this decision. For FOI applicants, an application for
IC review must be made in writing within 60 days of the decision. For third parties who object
to disclosure of their information, an application for IC review must be made in writing within
30 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a
complaint with the OAIC. However, the OAIC suggests that complaints are made to the
agency in the first instance.
While there is no particular form required to make a complaint to the OAIC, the complaint
should be in writing and set out the reasons for why you are dissatisfied with the way your
request was processed. It should also identify the Ombudsman’s Office as the agency about
which you are complaining.
You can make an IC review application or make an FOI complaint in one of the following ways:
• online at https:
//www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
• via email to
xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is
available at its website
: www.oaic.gov.au/freedom-of-information/foi-review-process.
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Document Outline
