Our ref: FOI-2022-50003

19 April 2022

D

Emailed to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Anonymous
I refer to your email dated 17 February 2022 in which you requested access to certain documents
under the Freedom of Information Act 1982 (the FOI Act). Your request was framed in the fol owing
way:
a)     any and all contract notices prepared pursuant to procurement arrangements
for the “computer system [developed] … for the purpose of managing complaint and
investigation work performed by the Commonwealth Ombudsman”, including
contract notifications prepared for publication on the AusTender website; and

b)     any and al  tender notices prepared pursuant to procurement arrangements for
the “computer system [developed] … for the purpose of managing complaint and
investigation work performed by the Commonwealth Ombudsman”, including tender
notifications prepared for publication on the AusTender website; and

c)     any and al  approaches to market pursuant to procurement arrangements for
the “computer system [developed] … for the purpose of managing complaint and
investigation work performed by the Commonwealth Ombudsman”; and

d)     any purchase orders associated with the contract notice for the “computer
system [developed] … for the purpose of managing complaint and investigation work
performed by the Commonwealth Ombudsman”; and

e)    any invoices issued by the supplier in relation to the “computer system
[developed] … for the purpose of managing complaint and investigation work
performed by the Commonwealth Ombudsman”; and

f)     any and al  “request documentation”, as that term is defined in the
Commonwealth Procurement Rules, associated with the “computer system
[developed] … for the purpose of managing complaint and investigation work
performed by the Commonwealth Ombudsman”.
This letter constitutes notice of my decision on your request for access.  I am authorised to make
decisions on behalf of the Ombudsman’s Office under s 23 of the FOI Act.

GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au

Decision
Our Office identified 95 documents relevant to your request. I have exempted al  95 documents in
ful  from disclosure. My reasons for this decision are set out at Attachment A to this letter.
A schedule setting out the relevant documents is at Attachment B.
Our Office identified the documents by searching the Ombudsman’s electronic record keeping
systems.
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 fol owing 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.
2

Contacts
If you require clarification of any of the matters discussed in this letter you should contact me using
the contact information set out at the foot of the first page of this letter.
Yours sincerely

Gregory Parkhurst
Senior Legal Officer
3

ATTACHMENT A – Reasons for decision
Material taken into account
In making my decision I had regard to the fol owing:
•
the terms of your request
•
the content of the documents to which you sought access
•
consultation responses from third parties approached in accordance with the FOI Act
•
relevant provisions of the FOI Act
•
the Australian Information Commissioner’s Guidelines on FOI, available at
www.oaic.gov.au  (the Guidelines).
Findings of fact and reasons for decision
Where the schedule of documents at Attachment B indicates that an exemption has been applied to
a document, or part of a document, my findings of fact and reasons for deciding that the exemption
provision applies to that document, or part of that document, are set out below.
Exemption – information obtained in confidence: s 45
Section 45 exempts a document if its disclosure would found an action by a person for breach of
confidence.
To found an action for breach of confidence a person must be able to:
1.  specifically identify the information in question
2.  show that the information has the necessary quality of confidentiality (and is not, for
example, common or public knowledge)
3.  show that the information was communicated in a mutual understanding that the
receiver was to keep the information confidential
4.  show that there is actual or threatened misuse of that information.
I am satisfied that that disclosure of the documents which fal  within the scope of your request
would found an action for breach of confidence.
Identified with specificity
The documents fal ing within the scope of your request contain details about certain computer
software, including, among other things, its technical capabilities, functions and features. The
documents contain informational and graphical depiction of the relevant software and very detailed
explanations about the way that the software works, as well as its specific outputs. The documents
contain project methodologies and pricing. I am satisfied that it would be very easy for a competitor
organisation to use this information in tenders or to duplicate the operation of the software
functions if they were to obtain this information.
Confidential in nature
The information contained within the documents is known only to the provider and its clients. It is
not otherwise publicly available. The provider and the Commonwealth Ombudsman remain under
contractual obligations of confidentiality in relation to the requested documents.
4

The contract and invoice documents, for example, were created on a confidential basis, as part of
confidential business transacted between the Commonwealth Ombudsman and the provider. The
Guideline Documents are only provided to customers of the provider (who are under confidentiality
provisions in relevant contracts). Access to certain Guideline material is restricted to users with
authorised access under secured logins.
The provider maintains the confidentiality of the documents by only providing them to customers
under obligations of confidentiality. The documents relate to contracts between the provider and
the Commonwealth Ombudsman which contain mutual y agreed confidentiality provisions, and
terms under Commonwealth procurement arrangements that provide for confidentiality of pricing
and commercially sensitive information.
Communicated in confidence
I am satisfied that the documents which fal  within the scope of this request contain information
which was communicated between the provider and the Commonwealth Ombudsman in
confidence. Evidence of the relevant mutual confidentiality is set out in the express provision in
relevant contracts which state that a party cannot provide confidential information to a third party
without consent. Confidential Information is defined as being information that is expressly
prescribed as being so, or a party knows or ought to know it is confidential. Al  quotes, emails and
Guideline Documents are specifical y designated as being commercial in confidence and others are
of a nature that a party ought to also understand to be confidential.
Disclosure a misuse
The provider has advised the Ombudsman that it is aware of attempts by competitor organisations
to gain access to, and misuse the provider’s commercially valuable information. For this reason, the
provider does not consent to disclosure of the documents which fal  within the scope of this request.
Disclosure would be an unauthorised , breach of the confidentiality obligations of the Ombudsman’s
contract with the provider. I am satisfied that such a disclosure would, under the circumstances,
amount to a misuse.
Detriment
The documents which fal  within the scope of this request have significant commercial value. They
include the proprietary intellectual property that the provider has developed over a number of
years. They are used as a reference basis for the provider’s tender submissions and the provision of
services to customers.
The documents include material that forms a significant component of the provider’s saleable
services and is ‘sold’ from the provider to its customers for valuable consideration. Among other
things, the documents contain graphic step-by-step depictions of the provider’s software. I am
satisfied that this information could be used by a competitor organisation to the detriment of the
provider, to develop a similar product or to draw attention to any weaknesses in the provider’s
products and services. The commercial value in the documents could reasonably be expected to be
diminished if they were disclosed. The provision of software in the particular market is highly
competitive. The provider has made considerable investment in tendering for projects with its
product. The documents contain confidential project scoping, pricing and the final negotiated
position of the Commonwealth Ombudsman and the provider in relation their business
engagements. I am satisfied that disclosure of the documents would enable a competitor
organisation to understand the confidential contracting methodology and negotiations between the
provider and the Commonwealth Ombudsman.
5

The provider operates in a competitive marketplace of providing software solutions for government
and certain industries. The relevant software primarily concerns complaints, misconduct,
investigations, citizen support services and FOI. I understand that the provider regularly responds to
tenders for multi-million dollar contracts. I am satisfied that if the requested documents were
disclosed, there is genuine a risk that competitor organisations could affect the ability of the
provider to continue to compete in the market, thereby causing cause significant detriment to the
provider.
For the reasons set out in this decision, I am satisfied that the documents which fal within the scope
of this request are exempt from disclosure under s 45 of the FOI Act.
Exemption – information that has commercial value: s 47
Section 47 exempts a document if it would disclose information having a commercial value that
would be, or could reasonably be expected to be, destroyed or diminished if the information were
disclosed.
Information has commercial value if it is valuable for the purposes of carrying on a commercial
activity. For example, if it is essential to the profitability of a business’s operation, or if a genuine
buyer is prepared to pay to obtain that information. Information may have no remaining commercial
value if it is out of date or publicly available.
Commercial value
The documents falling within the scope of this request form the commercial package that the
provider uses to conduct business. In this way, they contain information which is commercial y
valuable to the provider. They give the provider a competitive advantage over other similar
providers, as the information within the documents is general y unknown. I am satisfied that the
documents form part of the trade and business that the provider conducts in the sale of its services
to customers; that the information contained within the documents is known only to the provider
and its customers and is not publicly available, and that if the documents were disclosed to a
competitor, their disclosure would likely cause genuine harm to the provider and adversely affect its
ability to compete in the relevant software market.
The information contained in the requested documents is only accessible to the Commonwealth
Ombudsman and the provider’s project-based employees who are under obligations of
confidentiality in their employment agreements.
Destroyed or diminished
The implementation of a software package from the provider can cost anywhere between $10,000
and $500,000 and its development may take months or years. This is a significant investment for the
provider and the relevant customer. As the documents include detailed depiction of the both the
commercial offering and the operation of the provider’s product, I am satisfied that their disclosure
would enable a competitor organisation to use this information to significantly disadvantage the
provider.
I am satisfied that the documents fal ing within the scope of this request contain commercially
valuable information, and that the value of this information could reasonably be expected to be
destroyed or diminished if the relevant documents were disclosed.
6

In making my decision, I have also taken into account the age of the information contained in the
requested documents. The content of the documents demonstrates that the Commonwealth
Ombudsman has had a business relationship with the provider over a period of more than 10 years,
and, significantly, it is a continuous ongoing business relationship. Having regard to the ongoing
business relationship between the Ombudsman and the provider, I am satisfied that the information
contained in the requested documents continues to have commercial value and that this
information remains relevant to the provider’s ongoing commercial affairs.
For the reasons set out in this decision, I have refused access to the requested documents under
s 47(1)(b) of the FOI Act.
Conditional exemption - Public interest test – business information: s 47G
In the alternative, the documents which fal  within the scope of this request are conditionally
exempt from disclosure under s 47G of the FOI Act.
Under s 47G(1) of the FOI Act a document is conditional y exempt if its disclosure would involve
releasing information about the business, commercial or financial affairs of a person/an organisation
in circumstances which:
(a)  would, or could reasonably be expected to, adversely affect the relevant
person/organisation, in an unreasonable way, with regard to its business, commercial
or financial affairs; or
(b)  could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of administration of a law of the
Commonwealth or a Territory or the administration of matters administered by an
agency.
Section 11A of the FOI Act provides that while an agency must give a person access to a document if
it is conditionally exempt, access may be refused if the document’s disclosure would, on balance, be
contrary to the public interest.
Information in respect of business affairs (s 47G(1)(a))
The Australian Information Commissioner’s 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 of the FOI Act depends on the effect of disclosure, rather than the precise nature
of the information itself. However, the information must have some relevance to a person in respect
of their business or professional affairs, or the business, commercial and financial affairs of an
organisation.
I have careful y considered the content of the documents which fal  within the scope of this request.
Al  of the documents have been created to support certain business activities performed under a
contract to provide services for the Commonwealth Ombudsman. I am satisfied that the relevant
documents can be categorised as business information for the purposes of s 47G, as they relate to
the business affairs of a provider of computer software products and services in its dealings with the
Commonwealth Ombudsman.
7

Unreasonable adverse effect
In deciding whether disclosure of a document containing business information would be
unreasonable for the purposes of s 47G(1) of the FOI Act, I am required to balance the public
interest and the private interests of the relevant business. Relevantly, paragraph 6.187 of the
Guidelines provides that a decision maker must balance the public and private interest factors to
decide whether disclosure is unreasonable for the purposes of s 47G(1)(a) but this does not amount
to the public interest test of s 11A(5) which fol ows later in the decision making process.
Paragraph 6.188 of the FOI Guidelines further explain that the test of reasonableness applies not to
the claim of harm but to the objective assessment of the expected adverse effect.
In assessing whether disclosure would have an unreasonable adverse effect on the business affairs
of relevant provider, I have taken into account that the information contained in the requested
documents is commercially sensitive and relates to confidential contracts for the provision of
products and services to the Commonwealth Ombudsman. The relevant information is not publicly
available. The relevant information contains, among other things, intellectual property of the
provider. The provider has entered into certain contractual arrangements with the Commonwealth
Ombudsman under agreement that the contents of the relevant documents would remain known
only to the provider and the Commonwealth Ombudsman. Disclosure of the information contained
in the requested documents would disclose to the provider’s competitors the intel ectual property of
the provider contained in the relevant documents. The documents contain material which reflects
the expertise and knowledge the provider has developed over an extended period of time in
undertaking projects for certain government and private sector organisations. Disclosure would
enable the provider’s competitors to adopt the techniques implemented by the provider in working
on other similar projects. Under these circumstances the provider would lose the commercial
advantage which it previously developed through the design of the relevant projects with the
Commonwealth Ombudsman.
I have not identified any public interest grounds which would make it reasonable to disclose the
requested documents. There is no evidence, for example, that disclosure of the relevant documents
would reveal that the provider’s business activities pose a threat to public safety or that the provider
would damage the natural environment or that the documents contain evidence of unlawful
conduct.
Accordingly, having considered the public and private interests of the provider in relation to the
contents of the requested documents, I am satisfied that disclosure of those documents would have
an unreasonable adverse effect on the business affairs of the provider.
Disclosure not in the public interest
In deciding whether or not access should be given to the information contained in the requested
documents on the basis of public interest I have taken a number of matters into account. These
matters include the public interest factors for and against disclosure as outlined in the Guidelines.
I acknowledge that there is a public interest in ensuring that projects undertaken by the
Commonwealth are meaningful, properly administered and a reasonable expenditure of public
money. I accept that disclosure of the relevant documents would promote transparency of the work
of the government, and accountability in relation to public administration.
8

However, I give greater weight to the fact that disclosure of the requested documents would deny
the provider the protection of the intel ectual property and commercially valuable information
contained in the relevant documents.
I give greater weight to the fact that under the terms of the provider’s engagement with the
Commonwealth Ombudsman, the work of the provider was performed on a confidential basis.
Release of the requested documents would disclose commercially valuable information to the
provider’s competitors, which would have a negative effect on the business affairs of the provider in
circumstances where the relevant material was intended to remain confidential. In reaching this
view, I have taken into account that the provider has applied considerable expertise, developed over
a long-standing period to design and implement a tailored product for delivery of the work
performed by the Ombudsman. In my view, the unreasonable adverse effect on the provider of
disclosure of the relevant documents outweighs the public interest in disclosure of the relevant
documents.
I have also taken into account that disclosure of the relevant documents would not al ow you access
to your own personal information.
Accordingly, I am satisfied that the requested documents are conditional y exempt under
subparagraph 47G(1)(a) and, further, that they should not be disclosed.
Section 47G(1)(b) – Prejudice the future supply of information
In relation to s 47G(1)(b) of the FOI Act, the Guidelines explain that there must be a reasonable
likelihood that disclosure would result in a reduction in both the quality and quantity of business
information flowing to the government.
Upon examination of the requested documents, I am satisfied that their disclosure could reasonably
be expected to prejudice the future supply of information to the government.
In the circumstances of this matter, I have taken into account that the information provided to the
Ombudsman could not be obtained compulsorily, nor was it required for the payment of a particular
benefit or grant. In reaching my conclusion, I have taken into account that under the terms of its
engagement with the Commonwealth Ombudsman, the work of the provider is expected to remain
confidential.
In my view, business organisations should have the confidence to engage with government on the
understanding that agencies wil  fol ow and fulfil their obligations under the terms of their
engagement. Further, where business organisations provide services on the basis that they wil
remain confidential, I am of the view that if such confidential information was disclosed, the
willingness of business organisations to provide services based on the application of commercially
valuable methodologies or other similar intellectual property, could reasonably be expected to be
reduced.
Disclosure not in the public interest
There is a strong public interest in the willingness of business organisations to provide services for
government. In many circumstances, business organisations outside government are better placed
to provide specialist expertise, particularly where the government has adopted a policy position of
not participating in certain sectors of the economy. Private sector organisations wil  be better placed
than the government to undertake work in areas where the government has minimal resources or
may lack the necessary expertise.
9

In my view, the public interest in the wil ingness of independent organisations to provide services to
the government is essential to the effective operation of public administration. The inability of the
government to effectively perform a range of functions set out under legislation and to administer
government programs would be contrary to the public interest. If business organisations were
unwil ing to provide their services to government, this would result in government uncertainty about
the appropriate ways to manage and administer certain functions, resulting in delays and errors to
the detriment of the public. Further, it would likely result in additional public expenditure, which is
also contrary to the public interest. The wil ingness of business organisations outside government to
contribute to the public good is, in my view, a factor strongly in the public interest.
In reaching my conclusion, I have also taken the view that disclosure of the relevant documents
would not allow you access to your own personal information.
Accordingly, I am satisfied that the documents which fal within the scope of this request are
conditional y exempt under subparagraph 47G(1)(b) and, further, that they should not be disclosed.

10

Attachment B – Schedule of documents

Schedule of documents for: Applicant D

Ombudsman's reference: FOI 2022-50003
Item no.  Description
Date
Decision
1  Ombudsman's internal email (plus attachments 2 pages)
04-Jun-19
Exempt s 45, s 47 or s 47G
2  Email received by Ombudsman (plus 1 page attachment)
23-May-19
Exempt s 45, s 47 or s 47G
3  Ombudsman's internal email (plus attachments 30 pages)
22-Jan-19
Exempt s 45, s 47 or s 47G
4  Ombudsman's internal email
22-Jan-19
Exempt s 45, s 47 or s 47G
5  Email from Ombudsman (plus 1 page attachment)
16-Feb-17
Exempt s 45, s 47 or s 47G
6  Email received by Ombudsman (plus 1 page attachment)
15-Feb-17
Exempt s 45, s 47 or s 47G
7  Section 23 procurement approval
16-Feb-17
Exempt s 45, s 47 or s 47G
8  Licence quotation
17-Feb-22
Exempt s 45, s 47 or s 47G
9  Email received by Ombudsman (plus 2 page attachment)
24-Feb-22
Exempt s 45, s 47 or s 47G
10  Email from Ombudsman to Shared Services (plus attachment 1 page)
21-Feb-22
Exempt s 45, s 47 or s 47G
11  Email received by Ombudsman (plus 2 page attachment)
17-Feb-22
Exempt s 45, s 47 or s 47G
12  Email from Shared Services to Ombudsman (plus attachment 1 page)
16-Jul-21
Exempt s 45, s 47 or s 47G
13  Email received by Ombudsman (plus attachment 1 page)
2-Jul-21
Exempt s 45, s 47 or s 47G
11

14  Email from Shared Services to Ombudsman (plus attachment 1 page)
27-Apr-21
Exempt s 45, s 47 or s 47G
15  Ombudsman's internal email (plus attachments 5 pages)
23-Apr-21
Exempt s 45, s 47 or s 47G
16  Tax invoice
3-Mar-21
Exempt s 45, s 47 or s 47G
17  Ombudsman's internal Minute
19-Apr-21
Exempt s 45, s 47 or s 47G
18  Section 23 procurement approval
23-Apr-21
Exempt s 45, s 47 or s 47G
19  Email received by Ombudsman (plus 1 page attachment)
30-Mar-21
Exempt s 45, s 47 or s 47G
20  Email received by Ombudsman
16-Jun-20
Exempt s 45, s 47 or s 47G
21  Section 23 procurement approval
18-Feb-22
Exempt s 45, s 47 or s 47G
22  Email received by Ombudsman (plus 2 page attachment)
19-Jun-20
Exempt s 45, s 47 or s 47G
23  Ombudsman's internal email (plus 1 page attachment)
4-Jun-20
Exempt s 45, s 47 or s 47G
24  Ombudsman's internal email
3-Jun-20
Exempt s 45, s 47 or s 47G
25  Ombudsman's internal email
2-Jun-20
Exempt s 45, s 47 or s 47G
26  Email from Ombudsman (plus 10 page attachment)
2-Jun-20
Exempt s 45, s 47 or s 47G
27  Ombudsman's internal email
2-Jun-20
Exempt s 45, s 47 or s 47G
12

28  Ombudsman's internal email
27-Apr-20
Exempt s 45, s 47 or s 47G
29  Ombudsman's internal email
24-Apr-20
Exempt s 45, s 47 or s 47G
30  Ombudsman's internal email (plus attachments 13 pages)
2-Jun-20
Exempt s 45, s 47 or s 47G
31  Ombudsman's internal email
2-Jun-20
Exempt s 45, s 47 or s 47G
32  Ombudsman's internal email
24-Apr-20
Exempt s 45, s 47 or s 47G
33  Ombudsman's internal email
2-Jun-20
Exempt s 45, s 47 or s 47G
34  Tax invoice from provider
4-Oct-18
Exempt s 45, s 47 or s 47G
35  Tax invoice from provider
8-Feb-19
Exempt s 45, s 47 or s 47G
36  Tax invoice from provider
26-Apr-19
Exempt s 45, s 47 or s 47G
37  Tax invoice from provider
28-Nov-18
Exempt s 45, s 47 or s 47G
38  Tax invoice from provider
10-Aug-18
Exempt s 45, s 47 or s 47G

39  Contract for services
Exempt s 45, s 47 or s 47G
40  Tax invoice from provider
17-Aug-18
Exempt s 45, s 47 or s 47G
41  Tax invoice from provider
1-May-19
Exempt s 45, s 47 or s 47G
13

42  Section 23 procurement approval
4-Jun-19
Exempt s 45, s 47 or s 47G
43  Section 23 procurement approval
18-Jul-19
Exempt s 45, s 47 or s 47G
44  Tax invoice from provider
9-Jun-20
Exempt s 45, s 47 or s 47G
45  Tax invoice from provider
23-Jun-20
Exempt s 45, s 47 or s 47G
46  Tax invoice from provider
23-Jun-20
Exempt s 45, s 47 or s 47G
47  Tax invoice from provider
31-Aug-20
Exempt s 45, s 47 or s 47G
48  Project proposal
29-Nov-19
Exempt s 45, s 47 or s 47G
49  Section 23 procurement approval
24-Feb-20
Exempt s 45, s 47 or s 47G
50  Project proposal
29-Nov-19
Exempt s 45, s 47 or s 47G
51  Section 23 procurement approval
11-Mar-20
Exempt s 45, s 47 or s 47G
52  Tax invoice from provider
31-Mar-20
Exempt s 45, s 47 or s 47G
53  Section 23 procurement approval
18-Mar-20
Exempt s 45, s 47 or s 47G
54  Licence proposal
23-Apr-20
Exempt s 45, s 47 or s 47G
55  Tax invoice from provider
4-Jun-20
Exempt s 45, s 47 or s 47G
14

56  Section 23 procurement approval
29-Apr-20
Exempt s 45, s 47 or s 47G
57  Tax invoice from provider
31-Mar-21
Exempt s 45, s 47 or s 47G
58  Ombudsman's internal minute
19-Apr-21
Exempt s 45, s 47 or s 47G
59  Section 23 procurement approval
27-Apr-21
Exempt s 45, s 47 or s 47G
60  Section 23 procurement approval
23-Feb-21
Exempt s 45, s 47 or s 47G
61  Tax invoice from provider
2-Aug-19
Exempt s 45, s 47 or s 47G
62  Licence quotation
17-Feb-22
Exempt s 45, s 47 or s 47G
63  Tax invoice from provider
28-Feb-22
Exempt s 45, s 47 or s 47G
64  Tax invoice from provider
11-Sep-18
Exempt s 45, s 47 or s 47G
65  Ombudsman's internal email (plus 1 page attachment)
25-Jun-21
Exempt s 45, s 47 or s 47G
66  Email from provider to Ombudsman (plus attachments 4 pages)
31-Aug-20
Exempt s 45, s 47 or s 47G
67  Email from provider to Ombudsman (plus 1 page attachment)
23-Jun-20
Exempt s 45, s 47 or s 47G
68  Email from provider to Ombudsman (plus attachments 2 pages)
23-Jun-20
Exempt s 45, s 47 or s 47G
69  Ombudsman's internal email (plus attachments 5 pages)
23-Jun-20
Exempt s 45, s 47 or s 47G
15

70  Email from provider to Ombudsman (plus attachments 2 pages)
10-Jun-20
Exempt s 45, s 47 or s 47G
71  Email from provider to Ombudsman (plus attachment 2 pages)
9-Dec-21
Exempt s 45, s 47 or s 47G
72  Section 23 procurement approval
3-Jun-21
Exempt s 45, s 47 or s 47G
73  Email from provider to Ombudsman (plus attachments 6 pages)
25-May-21
Exempt s 45, s 47 or s 47G
74  Licensing proposal
22-Nov-18
Exempt s 45, s 47 or s 47G
75  Email from provider to Ombudsman (plus attachments 26 pages)
22-Nov-18
Exempt s 45, s 47 or s 47G
76  Email from provider to Ombudsman
6-Mar-19
Exempt s 45, s 47 or s 47G
77  Licence proposal
6-Mar-19
Exempt s 45, s 47 or s 47G
78  Section 23 procurement approval
22-Nov-19
Exempt s 45, s 47 or s 47G
79  Email from provider to Ombudsman (plus attachment 3 pages)
15-Feb-18
Exempt s 45, s 47 or s 47G
80  Email from provider to Ombudsman (plus attachment 3 pages)
26-Jul-18
Exempt s 45, s 47 or s 47G
81  Section 23 procurement approval
9-Aug-18
Exempt s 45, s 47 or s 47G
82  Section 23 procurement approval
21-Feb-17
Exempt s 45, s 47 or s 47G
83  Email from provider to Ombudsman (plus attachments 4 pages)
6-Dec-16
Exempt s 45, s 47 or s 47G
16

84  Email from provider to Ombudsman (plus attachments 1 page)
13-Oct-16
Exempt s 45, s 47 or s 47G
85  Section 23 procurement approval
23-Sep-16
Exempt s 45, s 47 or s 47G
86  Email from provider to Ombudsman
19-Sep-16
Exempt s 45, s 47 or s 47G
87  Email from provider to Ombudsman (plus attachments 6 pages)
15-Feb-16
Exempt s 45, s 47 or s 47G
88  Email from provider to Ombudsman (plus attachments 2 pages)
2-May-16
Exempt s 45, s 47 or s 47G
89  Section 23 procurement approval
23-Feb-16
Exempt s 45, s 47 or s 47G
90  Email from provider to Ombudsman (plus 1 page attachment)
29-Jun-11
Exempt s 45, s 47 or s 47G
91  Email from provider to Ombudsman (plus attachment 52 pages)
27-Jul-17
Exempt s 45, s 47 or s 47G

92  IT consultancy services contract 2017/2018
Exempt s 45, s 47 or s 47G
93  Licence and support contract
26-Jun-14
Exempt s 45, s 47 or s 47G
94  Email from Ombudsman to provider
6-May-20
Exempt s 45, s 47 or s 47G
95  Tax invoice from provider
11-Sep-18
Exempt s 45, s 47 or s 47G

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ATTACHMENT C – Relevant FOI Act provisions
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).
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 conditionally 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

(ii)  within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
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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;

(aa)  access to the document could result in embarrassment to the Government of
Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;

(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

(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.
45  Documents containing material obtained in confidence

(1)  A document is an exempt document if its disclosure under this Act would found an
action, by a person (other than an agency, the Commonwealth or Norfolk Island), for
breach of confidence.
19

(2)  Subsection (1) does not apply to a document to which subsection 47C(1) (deliberative
processes) applies (or would apply, but for subsection 47C(2) or (3)), that is prepared by
a Minister, a member of the staff of a Minister, or an officer or employee of an agency,
in the course of his or her duties, or by a prescribed authority or Norfolk Island authority
in the performance of its functions, for purposes relating to the affairs of an agency or a
Department of State unless the disclosure of the document would constitute a breach of
confidence owed to a person or body other than:

(a)  a person in the capacity of Minister, member of the staff of a Minister or officer of
an agency; or

(b)  an agency, the Commonwealth or Norfolk Island.
47  Documents disclosing trade secrets or commercially valuable information

(1)  A document is an exempt document if its disclosure under this Act would disclose:

(a)  trade secrets; or

(b)  any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
disclosed.

(2)  Subsection (1) does not have effect in relation to a request by a person for access to a
document:

(a)  by reason only of the inclusion in the document of information concerning that
person in respect of his or her business or professional affairs; or

(b)  by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or

(c)  by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an organisation where the person
making the request is the organisation or a person acting on behalf of the
organisation.

(3)  A reference in this section to an undertaking includes a reference to an undertaking that
is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or
by a local government authority.

47G Public interest conditional exemptions—business
(1) A document is conditional y exempt if its disclosure under this Act 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, in a case in which the
disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in
respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an agency.
20

(2) Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
(3) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in
respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an undertaking where the person making the request is the
proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business,
commercial or financial affairs of an organisation where the person making the request is the
organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is carried
on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
(5) For the purposes of subsection (1), information is not taken to concern a person in respect of the
person’s professional affairs merely because it is information concerning the person’s status as a
member of a profession.
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).

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Document Outline