Our reference: FOI 2122-108
Decision date: 11 April 2022
Applicant name: Karen
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Karen,
Freedom of Information request FOI 2122-108
I refer to correspondence received by the Department of Social Services
(the Department) on 14 February 2022, in which you requested access to:
‘documents that outline the terms of the ILC transfer from NDIA to DSS.’
Your request was made pursuant to the
Freedom of Information Act 1982 (FOI Act).
Decision
The Department has undertaken a reasonable search of its records and has identified
six (6) documents relevant to your request.
I have made a decision to grant full access to one (1) document, and grant access in
part to five (5) documents. These documents are listed in
Appendix 1.
Where I have decided to grant access to a document in part, I have listed the
exemption provisions I rely upon in
Appendix 1 and, if applicable, have annotated the
edited copies of those documents so that you can identify the specific section of the
FOI Act that I rely upon for each redaction.
Authority to make decision
I 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.
Page 1 of 13
Material taken into account
When making my decision I considered the following:
• the terms of your request;
• the types of information and documents that are in the Department’s
possession; and
• the content of the documents that fall within the scope of your request.
I also particularly considered the following provisions of the FOI Act:
• sections 11 and 11A which give the Australian community a legally enforceable
right to access information held by the Government of the Commonwealth;
• section 3 which outlines the objects underpinning that right of access;
• sections 42 ,47C and 47E(d) insofar as they are relevant to each of the
redactions that have been made in documents that have not been released in
full;
• section 11B to assess whether release of a conditionally exempt document was
contrary to the public interest;
• section 22 which requires the release of exempt documents in an edited form
in certain circumstances; and
• section 93A which requires that I have regard to the guidelines issued by the
Information Commissioner.
Full extracts of provisions of the FOI Act that I have relied on are in
Attachment A.
Summary of reasons for decision
I have decided to
grant access in part to five (5) documents within the scope of your
request. The reasons for my decision can be found at
Appendix 2.
My decision to grant access in part is made on the basis of the following exemptions
in accordance with the FOI Act:
Documents subject to legal professional privilege (section 42)
Section 42 of the FOI Act provides that a document is an exempt document if it is of
such a nature that it would be privileged from production in legal proceedings on the
ground of legal professional privilege (LPP).
Page 2 of 13
One of the documents identified as relevant to the terms of your request includes
information that falls into this category, being advice provided to the Commonwealth
by an independent legal advisor concerning an aspect of the proposed transfer. The
privilege in this advice has not been waived and so I consider that the subject
document, document one (1), is an exempt document for the purposes of the FOI Act.
Public interest conditional exemption - Deliberative processes (section 47C)
Section 47C of the FOI Act provides that a document is conditionally exempt if
disclosure would reveal information that had been prepared for the deliberative
processes involved in the functions of a Minister or the Department.
Unfortunately, the searches undertaken by the Department did not identify any one
document that fully outlined the terms of the transfer of the Information, Linkages and
Capacity Building (ILC) program from the National Disability Insurance Agency (NDIA)
to the Department of Social Services. Those terms appear to be contained in a number
of documents that also record other information. In some instances, that was
information that was being relayed to inform active consideration of issues relating to
and decisions about that transfer that had yet to be settled.
Having considered the nature of the information described above, and having had
regard to the various factors favouring disclosure and those against, I am satisfied that
disclosure of the information is not in the public interest and that documents one (1),
three (3), five (5) and six (6) are exempt documents.
Public interest conditional exemption - certain operations of agencies (section
47E)
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of a
n agency. Documents one (1) and three (3) contain the mobile phone numbers of senior
executives. These phone numbers are not publicly available and I am satisfied that
release of these contact details could reasonably be expected to have a substantial
adverse effect on the proper and efficient conduct of the operations of the agency.
Page 3 of 13
There are well-established mechanisms through which the public can contact the
Department and this reflects the need to and benefits of having only certain portals for
such contact. I am satisfied that it is not the public interest to disclose this information.
Access to edited copies with exempt or irrelevant matter deleted (section 22)
As identified above, in a number of instances I have decided to grant access to
documents in part. Consistent with my obligation under section 22 of the FOI Act, I
considered whether I would be required to provide access to edited copies of exempt
and conditionally exempt documents, and have done so where possible.
You wil also note that I have made redactions in some documents on the basis that
information has been identified that I consider would reasonably be regarded as
irrelevant to your request. More specifically, it is information that is not about or related
to the terms of the ILC transfer. Where I have identified such information I have also
redacted it from the documents.
Access to documents
The documents released to you in accordance with the FOI Act are enclosed.
Publication of information
The FOI Act outlines at Section 11C that agencies must publish information to
members of the public, except in specified circumstances.
I am of the view that the documents released to you 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 within 10 days of release. The Department’s
FOI Disclosure Log can be accessed at https://www.dss.gov.au/about-the-
department/freedom-of-information/disclosure-log.
Your rights of review
Information about your rights to seek a review of this decision are at
Attachment B.
Page 4 of 13
Should you have any enquiries concerning this matter please do not hesitate to contact
the FOI team by email at
xxx@xxx.xxx.xx.
Yours sincerely,
E. Scott
Director
Freedom of Information section
Legal Services Branch
11 April 2022
Page 5 of 13
Appendix 1
Schedule of documents
FOI 2122-108
Document Date of
Document description
Pages Decision Applicable
reference
document
Exemptions
1
28 May
Brief on transfer of ILC to 6
Part
s 42
2020
DSS* - Minister Ruston
Access
s 47C
signed
s 47E(d)
s 22
2
1 June
(Signature page only)
1
Part
s 22
2020
Brief on transfer of ILC to
Access
DSS - Minister Robert
signed
3
3 June
Letter to Martin Hoffman
2
Part
s 47C
2020
from Kathryn Campbell
Access
s 47E(d)
s 22
4
15 June
ILC transition committee - 2
Full
N/A
2020
Terms of Reference
Access
5
11
Letter to Prime Minister
3
Part
s 47C
September regarding transfer of
Access
s 22
2020
appropriation for program
6
30
Response from Prime
3
Part
s 22
September Minister with endorsement
Access
2020
of transfer of program
*Department of Social Services
Page 6 of 13
Appendix 2
Statement of Reasons
FOI 2122-108
I have decided to
grant access in part to five (5) documents within the scope of your
request on the basis of the above outlined exemptions in accordance with the FOI Act.
My reasons for that decision follow:
Documents subject to legal professional privilege (section 42)
Section 42(1) of the FOI Act provides:
A document is an exempt document if it is of such a nature that it would
be privileged from production in legal proceedings on the ground of legal
professional privilege.
Legal professional privilege (LPP) is a concept that underpins the right of an
organisation or individual to obtain confidential information about its legal obligations
and position. It protects that information from unwarranted disclosure that would
damage the interests of justice and of the individual/ organisation.
The FOI Guidelines issued by the Information Commissioner pursuant to section 93A
of the FOI Act identify that, at common law, determining whether a communication is
privileged requires a consideration of:
•
whether there is a legal adviser-client relationship;
•
whether the communication was for the purpose of giving or receiving
legal advice or for use or in connection with actual or anticipated litigation;
•
whether the advice given is independent; and
•
whether the advice given is confidential.
Document one (1) of your request contains legal advice, provided by an independent
external legal services provider listed on the authorised list of panel firms. I am
therefore satisfied that a legal adviser-client relationship exists, and that the advice is
independent.
Page 7 of 13
The legal advice contained within the document is an extract of the legal advice
provided by that firm, created for the specific purpose of providing the Department with
advice on aspects of its position in relation to the transition.
The information has not, so far as I am aware, been made public nor is there any other
evidence that legal privilege has been waived. I therefore consider the advice to be
confidential in nature and not for further disclosure.
As section 42 of the FOI Act is not a conditional exemption, I am not required to
consider a public interest test.
Public interest conditional exemption - Deliberative processes (section 47C)
Section 47C of the FOI Act provides that a document in conditionally exempt it:
…if its disclosure under this Act would disclose matter (deliberative
matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has
taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth.
Of note, material which is operational or purely factual information is not deliberative.
The deliberative exemption also does not apply to reports of scientific or technical
experts, reports of a body or organisation prescribed by the regulations, or a formal
statement of reasons.
Documents one (1), three (3), five (5) and six (6) contain information that I have judged
to be deliberative in nature.
Unfortunately, the searches undertaken by the Department did not identify any one
document that fully outlined the terms of the transfer of the ILC program from the NDIA
to DSS. Those terms appear to be contained in a number of documents that also
record other information. In some instances, that was information that was being
relayed to inform active consideration of issues relating to and decisions about that
transfer that had yet to be settled.
Page 8 of 13
The nature of some of these documents indicates that they are likely to contain
deliberative material. Document one (1) particularly, was a briefing document seeking
Ministerial agreement to the transfer at a time when the precise terms had not been
finalised. It necessarily contained deliberative material about those decisions.
It is not necessary for me to identify that any particular harm wil flow from disclosure
of these documents, although that is a factor I wil consider when applying the public
interest test below.
Application of the public interest test
Section 11A(5) provides that an agency must give the person access to the document
if it is conditionally exempt at a particular time unless (in the circumstances) access to
the document would, on balance, be contrary to the public interest.
In order to assess whether release of the exempt material would be contrary to the
public interest, I considered the following factors which favour disclosure:
• disclosure would promote the objects of the FOI Act because it reveals
contextual information related to a machinery of government change; and
• disclosure would inform debate on a matter of public interest, being the
operation of the ILC program and its administration within the Department.
I also considered the following factors which do not favour disclosure:
• disclosure would reveal the thinking, opinions and deliberations associated with
this transfer;
• disclosure could reasonably be expected to harm the interests of an individual
or group being stakeholders in the decision-making process undertaken to
effect the transfer; and
• disclosure could reasonably be expected to prejudice the management function
of an agency.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4)
of the FOI Act.
Page 9 of 13
On balance, I consider the public interest factors against disclosure to be more
persuasive than the public interest factors favouring disclosure and so I have
concluded that it is not in the public interest to release the information.
Public interest conditional exemption - certain operations of agencies (section
47E)
Section 47E of the FOI Act provides that a document is conditionally exempt if its
disclosure would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct
of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests,
examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment
of personnel by the Commonwealth, by Norfolk Island or by an
agency;
(d) have a substantial adverse effect on the proper and efficient conduct
of the operations of an agency.
Parts of document one (1) and three (3) contain the mobile phone numbers of senior
executives in the Department. These phone numbers are not publicly available, and I
am satisfied that release of these contact details could reasonably be expected to
have a substantial adverse effect on the proper and efficient conduct of the operations
of the agency.
The subject matter contained within the documents is of broad public interest.
Information about the ILC program is, rightly so, of particular import to individuals who
are personally involved in the delivery or receipt of the relevant services and to interest
and advocacy groups. The program has been the subject of correspondence to the
Department from those interested parties.
Consequently, if the personal contact details of the senior executives involved in the
administration of this program were released into the public domain, there is a real
chance that members of the public would freely use those contact details to engage
with them directly.
Page 10 of 13
The Department has established lines of communication with the public to ensure that
resources and personnel are managed efficiently and effectively and that public
enquiries are appropriately dealt with and answered. Information can be, and is,
directed to senior executives in the Department using these lines of communication
and publicly available channels. Disclosure of the direct contact numbers for senior
executive staff is unnecessary in this respect.
It is critical to the operations of the Department that senior executives be able to
properly discharge their duties in a timely and effectual manner. There is also an
expectation that they wil provide well-considered and authoritative advice on matters
within their remit on behalf of the Department.
If, as a general prospect, these senior executives were able to be contacted by the
public directly, there is a real risk that their time and attention would be not be able to
be directed as required by the organisation. They would also be put in a position that
unjustifiably compromised their ability to provide services to the Department along with
quality, well-informed counsel. This would significantly and adversely interfere with the
proper operations of the Department.
Accordingly, I have decided that these documents meet the criteria for this conditional
exemption.
However, where a document is assessed as conditionally exempt, access must be
given subject to the public interest test in accordance with section 11A(5) of the FOI
Act.
Application of the public interest test
Section 11A(5) provides that an agency must give the person access to the document
if it is conditionally exempt at a particular time unless (in the circumstances) access to
the document would, on balance, be contrary to the public interest.
In order to assess whether release of the exempt material would be contrary to the
public interest, I considered the following factors which favour disclosure:
• disclosure would promote the objects of the FOI Act.
I also considered the following factors which do not favour disclosure:
Page 11 of 13
• 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;
• disclosure could reasonably be expected to harm the interests of an individual
or group of individuals; and
• disclosure could reasonably be expected to prejudice the management function
of an agency.
I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4)
of the FOI Act.
On balance, I consider the public interest factors against disclosure to be more
persuasive than the public interest factors favouring disclosure and so I have
concluded that it is not in the public interest to release the information.
Delete exempt or irrelevant material from documents and provide access to
edited copies (section 22)
Section 22 of the FOI Act effectively provides that, where:
a. I intend to refuse to give access to a document, OR
b. I decide to give access to a document that contains material that would
reasonably be regarded as irrelevant to your request,
I must consider whether I can provide an edited copy of the document.
In relation to documents that fall within the scope of your request, both of the above
considerations apply.
Insofar as I have identified that some documents are conditionally exempt from release
pursuant to sections 42, 47C and 47E(d) of the FOI Act, I consider that I can prepare
versions of those documents with the exempt material redacted and that I would be
required to give access to those edited documents.
In addition, I have identified information in some documents that I consider would
reasonably be regarded as irrelevant to your request and I have also redacted that
information from those documents. The information in question does not go to the
Page 12 of 13
terms of the transfer of the ILC program but is incidental to that correspondence, such
as signatures.
I have decided to provide access to these edited versions of the document, as outlined
above at
Appendix 1.
Page 13 of 13
