Decision letter final signed PDF.pdf

Our ref: FOI‐2022‐10020

31 October 2022

Via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear D
I refer to request for internal review dated 3 May 2022 for internal review of Mr Gregory Parkhurst’s
decision of 7 April 2022 to grant you access in part to 5 documents under the Freedom of Information
act (the FOI Act).
I note the relevant documents were forwarded to you on 23 May 2022.
I sincerely apologise for the delay in forwarding the documents to you and in processing the internal
review.
Decision and Reasons
I am an officer authorised under s. 23(1) of the FOI Act to make FOI interview decisions on behalf o the
Office of the Commonwealth Ombudsman (the Office).
I have decided to uphold the original decision, albeit for slightly different reasons.
As a result, I will not provide a new schedule of documents.
My decision is to:


Grant access in part to 5 documents; and refuse access to parts of the documents which
constitute:
• the full 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;
• commercially valuable information of a supplier under s 45 and s 47 of the FOI Act,
and in the alternative under s 47G(1)(a) of the FOI Act.

Scope of FOI Request
I note the terms of your request, relevantly, were:
“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
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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.”
Material taken into account
In making my decision in ternal review decision I had regard to the following:
  the terms of your request
  the content of the documents to which you sought access
  consultation responses from a third party
  relevant provisions of the FOI Act
  the Australian Information Commissioner’s Guidelines on FOI, available at www.oaic.gov.au
(the Guidelines).

Relevant documents

I have reviewed the searches made in our electronic file management system and am satisfied those
searches have captured all the relevant documents and that the 5 documents referred to in the
original decision were the only relevant documents.

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 note the original decision considered whether the information exempted under s. 47 had a
commercial value that would be diminished by the release of the information.

I have examined the information and agree that it is material that the supplier has expended resources
and carried out substantial research and inquiry in developing, and that it has a commercial value that
would be diminished if it were released. This is because if the information came to a competitor, the
competitor may obtain the benefit of the supplier’s know‐how, as well as an awareness of the
supplier’s pricing structure, providing the competitor an advantage if the event of a tender process.

Looking at it another way, I am satisfied that another commercial entity would be prepared to pay for
the information.

On that basis I agree with the original decision that the information is exempt under s. 47.

Conditional Exemption s. 47G – business Affairs

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Alternatively, I have considered s. 47G. This section exempts documents, disclosure of which would
adversely affect a person or organisation in the conduct of their lawful business, commercial or
financial affairs.

I consider the release of the information would adversely affect the supplier in their lawful business
affairs in that it would release details of the supplier’s know‐how and could provide information to
other organisations providing those other organisations a competitive advantage in being able to
compete with the supplier.

Disclosure not in the public interest

Subsection 11A(5) of the FOI Act provides that, if a document is conditionally 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 appropriate details of contracts entered, and the total value of
the contracts are publicly available on Austedner.

I consider that disclosure could disrupt the competitive neutrality requirements of tender processes,
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 commercial arrangements to deliver services and carry out their 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 reconsidered the decision to refuse access to the full 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

I note that Section 4(1) of the FOI Act provides that ‘personal information’ has the same meaning as in
the Privacy Act 1988 (the Privacy Act), and essentially means information about an identified (or
reasonably identifiable) individual.

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.

Disclosure unreasonable

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I note the original decision maker correctly set out the relevant matters to consider under s. 47F(2) of
the FOI and the FOI Guidelines.

I have considered these factors. I note that details are current, are not otherwise well known, but that
the disclosure of the names are unlikely to advance the public interest as the relevant details of the
contract are on Austender.  I consider the names of the staff involved is not germane to the subject
matter of the request.

In addition, as the Office has a complaint handling function, there is a risk that persons seeking to
circumvent to established communication protocols with the office could attempt to contact the
person directly, adding an additional burden on them to redirect the enquiries to the proper channels.

Disclosure not in the public interest

Subsection 11A(5) of the FOI Act provides that, if a document is conditionally 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  I accept it is in the public interest to promote effective oversight of public expenditure and
inform the public on the operations of this Office, I do not consider that the provision of a email
address gas that character.  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.

Accordingly, I uphold the original decision to refuse access under s. 47F.

Public Interest Conditional Exemption – certain operations of agencies – section 47E of the FOI Act

I have decided to uphold the decision 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 conditionally 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, addressing an 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.
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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 conditionally exempt, it must be
disclosed ‘unless release of the document at that time would, on balance, be contrary to the public
interest'.

I do not consider that disclosure would promote the objects of the FOI Act as it is simply an email
address and provides no insight into the operations of the Office.

In my view, disclosure of the relevant email address could be reasonably expected to prejudice the
operations of this Office.  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.

I also note that FOI requests are publications to all the world (this is particularly so in relation to this
request which was made through the Right to Know website, which is publicly accessible.)

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 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 information relates to the people vis‐s‐vis the contract and not in their personal
capacitoies
• 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 website6 I consider that
release would result in immediate dissemination of the personal information into the public
domain
• 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.

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For these reasons, I consider that release of the personal information of the relevant individuals would
be unreasonable in the circumstances.


Review rights
Internal review
Under s 54 of the FOI Act, you may apply in writing to our Office for an internal review of my decision.
The internal review application must be made within 30 days of the date on which you were notified of
my decision.
Where possible, please attach reasons for why you believe review of the decision is necessary. The
internal review will be carried out by another Ombudsman officer within 30 days.
Review by the Australian Information Commissioner
Under s 54L of the FOI Act, you may apply to the Australian Information Commissioner to review my
decision. An application for review by the Information Commissioner must be made in writing within
60 days of the date of this letter, and be lodged in one of the following ways:

online at https://www.oaic.gov.au/freedom‐of‐information/reviews‐and‐
complaints/information‐commissioner‐review/

via email to xxxxx@xxxx.xxx.xx

by overland mail to GPO Box 5218 SYDNEY NSW 2001
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go to https://www.oaic.gov.au/freedom‐of‐information/reviews‐
and‐complaints/information‐commissioner‐review/
Complaints to the Information Commissioner
You may complain to the Information Commissioner about action taken by the Ombudsman in relation
to your FOI request.
While there is no particular form required to make a complaint, the complaint should be in writing and
set out the reasons for why you are dissatisfied with the way in which your request was processed. It
should also identify the Ombudsman’s Office as the agency about which you are complaining.
You may lodge your complaint in one of the following ways
  online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1
  by overland mail to GPO Box 5218 SYDNEY NSW 2001
  by email to xxxxx@xxxx.xxx.xx.

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Contacts
If you require clarification of any of the matters discussed in this letter you should contact the FOI
team by email xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or calling 1300 362 072.

Yours sincerely

Polly Porteous
Director, Legal
Commonwealth Ombudsman

Influencing systemic improvement in public administration
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