FEDERAL COURT OF AUSTRALIA
PRINCIPAL REGISTRY
HARRY GIBBS COMMONWEALTH LAW COURTS
119 NORTH QUAY
BRISBANE QLD 4000
24 March 2022
Shaun
Right to Know
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Shaun,
Request under the Freedom of Information Act
I refer to your email to the Federal Court of Australia (
Court) of 22 February 2022 requesting
access to documents under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Specifically, you have requested the following:
On the 27th of October 2021, Rohan Muscat in the position of National Registrar, responded
to a FOI communication "A Court of Law" dated 22 October 2021 and can be viewed at the
following URL:
https://www.righttoknow.org.au/request/a_court_of_law
Rohan's Response:
https://www.righttoknow.org.au/request/a_court_of_law#incoming-22951
In Rohan's response, Rohan either deliberately or from oversight re-styled the scope of the
documents sought by changing "a man (or woman)" to "person" (a legal entity) as the part
response below shows:
Documents that cannot be found or do not exist – subsection 24A(1)
The second part of your email says that you “require the internal policy or directive or law or
rule (or other)” that would be relied upon by public servants including to deny a person right
to justice and access to the Court. To the extent that your request – or at least this part of your
request – does seek access to “a document of an agency”, I am unable to provide you with any
such documents, because those documents cannot be found or do not exist.
I require any internal emails or documents that relate to the response to the original FOI
communication; and an explanation from Rohan why the scope was changed; and a qualified
employee to correctly carry out a search of said documents from said FOI communication.
Authorised decision-maker
I am authorised under section 23 of the FOI Act to make decisions on behalf of the Court in
relation to requests made under the FOI Act.
Searches undertaken
Searches were undertaken by staff of the Court to identify documents falling within the scope
of your request. These searches included discussions with the relevant staff and searches of
their email inboxes. I am satisfied that, by conducting these searches, the Court has taken all
reasonable steps to identify the documents captured by your request.
As a result of the searches undertaken, one document was identified as falling within the scope
of your FOI request.
Decision
I have decided, pursuant to subsection 47C(1)(a) of the FOI Act, to refuse your request for
access to documents as I am satisfied that the document identified is conditionally exempt as
its disclosure under the FOI Act would disclose a deliberative matter and would also, on
balance, be contrary to the public interest under subsection 11A(5).
I have also decided to refuse your request on the basis that the document contains personal
information, and that information is exempt from disclosure under subsections 47F(1) and
11A(5) of the FOI Act.
I have taken the following into account in making my decision:
• the terms of your request;
• the content of the documents that fall within the scope of your request;
• the relevant provisions of the FOI Act and case law considering those provisions;
• the
Freedom of Information (Charges) Regulations 2019; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(
FOI Guidelines).
Reasons for Decision
Conditional exemption under section 47C of the FOI Act – Deliberative processes
I have considered whether the document is conditionally exempt from disclosure under
subsection 47C(1) of the FOI Act.
Subsection 47C(1) prescribes that:
A document is conditionally exempt 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
2
link to page 3 link to page 3 link to page 3
(c) the Government of the Commonwealth.
In relation to requests that concern conditionally exempt documents containing deliberative
matter, the FOI Guidelines provides the following at 6.52:
… Deliberative matter is content that is in the nature of, or relating to either:
•
an opinion, advice or recommendation that has been obtained, prepared or recorded,
or
•
a consultation or deliberation that has taken place, in the course of, or for the purposes
of, a deliberative process of the government, an agency or minister (s 47C(1)).
Relevantly, the FOI Guidelines also provide:
6.55 The deliberative processes exemption differs from other conditional exemptions in that no
type of harm is required to result from disclosure. The only consideration is whether the
document includes content of a specific type, namely deliberative matter. If a document does
not contain deliberative matter, it cannot be conditionally exempt under this provision,
regardless of any harm that may result from disclosure.
6.58 A deliberative process involves the exercise of judgement in developing and making a
selection from different options:
The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing upon
one's course of action. In short, the deliberative processes involved in the functions of
an agency are its thinking processes – the processes of reflection, for example, upon
the wisdom and expediency of a proposal, a particular decision or a course of action.1
6.59 'Deliberative process’ generally refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.2
6.60 The deliberative process must relate to the functions of an agency, minister or the
government of the Commonwealth. The functions of an agency are usually found in the
Administrative Arrangements Orders or the instrument or Act that established the agency. For
the purposes of the FOI Act, the functions include both policy making and the processes
undertaken in administering or implementing a policy. The functions also extend to the
development of policies in respect of matters that arise in the course of administering a
program. The non-policy decision making processes required when carrying out agency,
ministerial or governmental functions, such as code of conduct investigations, may also be
deliberative processes.3
6.61 A deliberative process may include the recording or exchange of:
•
opinions
•
advice
•
recommendations
1 See
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See
British American Tobacco
Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19, [15]–[22]. See also
Carver and Fair Work Ombudsman [2011] AICmr 5 in relation to code of conduct investigations.
2
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].
3 See
Re Murtagh and Commissioner of Taxation [1984] AATA 249
, Re Reith and Attorney-General’s
Department [1986] AATA 437
, Re Zacek and Australian Postal Corporation [2002] AATA 473.
3
link to page 4 link to page 4 link to page 4
•
a collection of facts or opinions, including the pattern of facts or opinions
considered4
•
interim decisions or deliberations.
I am required to assess the material to decide if it relates to a deliberative matter or is in the
nature of the deliberative processes.
5 Upon assessment, I am satisfied that the document that
falls within the scope of your request includes content of a deliberative matter, as it records an
exchange about the decision-making process regarding the FOI request in question.
Specifically, it contains a discussion between colleagues prior to the making of a final decision.
Therefore, it is conditionally exempt under subsection 47C(1) of the FOI Act.
Conditional exemption under section 47F of the FOI Act – Personal privacy
I have also considered whether the documents are conditionally exempt from disclosure under
subsection 47F(1) of the FOI Act.
Subsection 47F(1) prescribes that:
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
The term “personal information” is defined in subsection 4(1) of the FOI Act to have the same
meaning as in section 6 of the
Privacy Act 1988 (Cth), that is:
. .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 material form or not.
The document found, includes names, email addresses, and direct telephone numbers, which is
clearly “personal information” as defined in subsection 4(1) of the FOI Act.
6 The document
also contains other personal information that bears no relevance to your request for example,
reference to an employee taking leave.
To determine whether this personal information is conditionally exempt under subsection
47F(1), I am required to consider whether disclosure of that personal information would be
unreasonable.
In considering what is unreasonable, the AAT in
Re Chandra and Minister for Immigration
and Ethnic Affairs [1984] AATA 437 at 259 stated that:
…whether a disclosure is ‘unreasonable’ requires … a consideration of all the circumstances,
including the nature of the information that would be disclosed, the circumstances in which the
information was obtained, the likelihood of the information being information that the person
concerned would not wish to have disclosed without consent, and whether the information has
any current relevance…it is also necessary in my view to take into consideration the public
4 See
Chapman and Chapman and Minister for Aboriginal and Torres Strait Islander Affairs [1996] AATA
210.
5
Secretary, Department of Employment, Workplace Relations v Small Business and Staff Development and
Training Centre Pty Ltd (2001) 114 FCR 301.
6 FOI Guidelines, paragraph 6.152.
4
link to page 5 link to page 5
interest recognised by the Act in the disclosure of information … and to weigh that interest in
the balance against the public interest in protecting the personal privacy of a third party…
In relation to the matters that ought to be taken into account in determining whether disclosure
would be unreasonable, subsection 47F(2) of the FOI Act prescribes that:
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
In relation to requests for documents that contain personal information about public servants,
the FOI Guidelines stipulate the following:
6.156 A document may, however be exempt for another reason, for example, where disclosure
would, or could reasonably be expected to, endanger the life or physical safety of any person
(s 37(1)(c)). In addition, where an individual has a propensity to pursue matters obsessively
and there is no need for them to contact a particular public servant in the future, disclosure of
the public servant’s name may be unreasonable.
It is recognised that the publication of the names and titles of public servants is relatively
uncontroversial. However, direct contact numbers and email addresses are, for the most part,
not well-known nor available from publicly accessible sources. Further, as mentioned above,
the other personal information contained in the document is not relevant to your FOI request.
The disclosure of any of this information would not make any positive contribution to
increasing public participation in Government processes or in increasing scrutiny, discussion,
comment and review of the Government’s activities.
7 For instance, members of the public still
have access to the general enquiry number of the Court, where matters are considered in the
ordinary course.
For these reasons, I consider that disclosure of the direct telephone number and work email
addresses of these public servants in their place of employment, and the other personal
information contained in the document would constitute an “unreasonable disclosure of
personal information”. Accordingly, the documents you have requested may be conditionally
exempt under subsection 47F(1) of the FOI Act.
Public interest test
In finding that the documents might be conditionally exempt, I am required to consider whether
it would be contrary to the public interest to give you access at this time. This test is applied
in addition to any public interest considerations already discussed above, and may result in the
need to consider one or more factors twice.
8
Section 11A(5) of the FOI Act provides:
7 See
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020]
AATA 4557 (9 November 2020) at [129]-[130], per (Deputy President S A Forgie).
8 FOI Guidelines, paragraph 6.138.
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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.
There are a number of factors that must be taken into account in considering the public interest
test, which are set out in subsection 11B(3) of the FOI Act. There are also certain factors which
must not be taken into account (see subsection 11B(4) of the FOI Act). The FOI Guidelines
provide non-exhaustive lists of other factors favouring disclosure (see paragraph 6.19), and
factors against disclosure (see paragraph 6.22), that may be relevant in certain circumstances.
Having regard to the relevant factors, I accept that the public interest factor favouring
disclosure of the document, which also includes direct contact numbers and work email
addresses, would be to promote the objects of the FOI Act. In particular, the pro-disclosure
object to “facilitate and promote public access to information, promptly and at the lowest
reasonable cost” (subsection 3(4) of the FOI Act). This factor favouring disclosure needs to
be weighed against the factors against disclosure.
Disclosure of the document could:
• reasonably be expected to prejudice the protection of the public servants’ right to
privacy, and
• may expose those staff to the risk of inappropriate and unsolicited approaches.
As I mentioned above, the direct contact numbers and email addresses of these public officials
is information that is not generally well-known nor available from publicly accessible sources.
It is difficult to see that disclosure of those numbers will contribute to scrutiny of the
Government’s activities.
The other personal information contained in the document bears no relevance whatsoever to
the FOI request. I am satisfied that the content of that information would not contribute to the
scrutiny of the Government’s activities.
The public interest test in relation to the conditional exemption of deliberative process was
discussed in
Wood; Secretary, Department of Prime Minister and Cabinet [2015] AATA 945
where Deputy President Forgie at [69] spoke of the:
“essential balance that must be struck between making information held by government
available to the public so that there can be increased public participation leading to better-
informed decision-making and increased scrutiny and review of the government’s activities and
ensuring that government may function effectively and efficiently.”
Forgie DP continued by noting:
Section 11B(2) specifically states that s 11B does not limit s 11A(5) when it provides that the
agency or Minister must give the person access to the document if, at the time, access to it
would, on balance, be contrary to the public interest. By specifying in s 11B(4) five factors that
are always irrelevant in deciding whether access would be contrary to the public interest and,
in s 11B(3), four factors that favour access but specifying none that may not favour access,
Parliament has implicitly recognised that the factors falling in that last category cannot be
captured in that way. Those factors are very dependent on the particular circumstances
attending the way in which a document came into being and attending it subsequently
[emphasis added].
6
Upon considering the document as a whole, the particular circumstances surrounding the
document, and Deputy President Forgie’s comments in
Wood, I am satisfied that disclosure
would not contribute to the scrutiny and review of the Government’s activities. In fact, its
disclosure may inhibit future deliberations, including deliberative discussions, being engaged
in between colleagues prior to formal decisions being made.
For these reasons, I give the factors against disclosure greater weight than the factor favouring
disclosure. I am satisfied that disclosure of the document would, on balance, be contrary to the
public interest.
In any event, I consider that the direct contact numbers and work email addresses of public
servants, and the further personal information in the document could reasonably be regarded
as irrelevant to your request.
Redaction appropriate under section 22 of the FOI Act – Access to edited copies with exempt
or irrelevant matter deleted
Section 22 of the FOI Act requires me to consider whether access may be granted to edited
copies of the documents, with exempt or irrelevant matter deleted.
In relation to section 22 of the FOI Act, the FOI Guidelines explain, at paragraph 3.98:
Applying those considerations, an agency or minister should take a common sense approach in
considering whether the number of deletions would be so many that the remaining document
would be of little or no value to the applicant. Similarly, the purpose of providing access to
government information under the FOI Act may not be served if extensive editing is required
that leaves only a skeleton of the former document that conveys little of its content or substance.
I consider that, under section 22, upon redacting the exempt information due to the conditional
exemptions of deliberative processes and personal information, the document retains no value
or meaning. It would therefore be futile to grant you access to redacted copies of the
documents.
Charges
You have not been charged for the processing of your request.
Your Review Rights
If you are dissatisfied with my decision, you may apply for internal review or to the Information
Commissioner for review of those decisions. I encourage you to seek internal review as a first
step as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Federal Court for an internal
review of my decision. The internal review application must be made within 30 days of the
date of this letter.
Where possible please attach reasons why you believe review of the decision is necessary. The
internal review will be carried out by another officer within 30 days.
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Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australia 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:
https://forms.business.gov.au/aba/oaic/foi-review-/
ema
il: xxxxxxxxx@xxxx.xxx.xx
post: GPO Box 2999, Canberra ACT 2601
in person: Level 3, 175 Pitt Street, Sydney NSW
More information about the Information Commissioner review is available on the Officer of
the Australian Information Commissioner website. Go t
o https://www.oaic.gov.au/freedom-
of-information/reviews-and-complaints/information-commissioner-review/.
Yours sincerely,
B Henderson
FOI Officer
8
