Our reference: FOIREQ22/00048
Attention:
Julie
By Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request – FOIREQ22/00048
Dear Julie,
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (Cth) (the FOI Act) and received by the Office of the Australian Information Commissioner
(OAIC) on 24 February 2022.
In your request you seek access to the following:
“The OAIC has appeared (via videolink or in person) before the Legal and Constitutional
Affairs Legislative Committee (Senate Estimates) on 15 February 2022 (Angelene Falk,
Elizabeth Hampton, Melanie Drayton) and 26 October 2021 (Angelene Falk, Elizabeth
Hampton, Bruce Cooper).
As part of the appearance of the above named OAIC officials, to enable these above
named OAIC officials to address any issues or questions Committee members might
raise, the OAIC prepares a 'briefing book' or 'briefing folder' for each official appearing,
that typically consists of a 'corporate folder', a 'privacy folder', an 'FOI folder', and
other folders that contain 'Commissioner Briefs', 'Hot Topic Briefs', and other
documents.
Excluding drafts and duplicates, I seek copy of such briefing folders or briefing books
consisting of such documents provided by the OAIC to the above named OAIC officials
for their appearances before the Committee on the dates specified.
Personal information of private individuals (not Commonwealth officials) is irrelevant.”.
On 17 March 2022, we provided you with a notice under s24AB that we intended to refuse
your request on the basis that the work involved in processing your request in its current form
would substantially and unreasonably divert the resources of the OAIC. We then provided an
opportunity for you to revise your request to enable it to proceed.
On 22 March 2022, you clarified the scope of your request to include:
“the first page of each Comm Brief as listed:
1300 363 992
T +61 2 9284 9749 GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666 Sydney NSW 2001 ABN 85 249 230 937
* Feb 2022 - Corporate: Docs 1, 3-11; Privacy: Docs 1-20; FOI: All docs except 17;
Folder B: Docs 5-22
* Oct 2021 - Corporate: Docs 1, 3-11; Privacy: Docs 1-20; FOI: All docs except 17;
Folder B: Docs 5-22”.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
In relation to the first part of your request for “Feb 2022 - Corporate: Docs 1, 3-11; Privacy:
Docs 1-20; FOI: All docs except 17; Folder B: Docs 5-22”, I have identified 64 documents within
the scope of your request. I have decided to release 59 documents in full and release 5
documents to you in part.
In relation to the second part of your request for a “Oct 2021 - Corporate: Docs 1, 3-11;
Privacy: Docs 1-20; FOI: All docs except 17; Folder B: Docs 5-22
”, I have identified 65
documents within the scope of your request. I have decided to release 59 documents in full
and release 6 documents to you in part.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 24 February 2022;
• your correspondence dated 18 March 2022;
• your revised freedom of information request dated 22 March 2022;
• the FOI Act, in particular sections 11A(5), 17 and 47E(d);
• the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act (the FOI Guidelines),
Information stored in electronic form - s 17
You have requested that the already provided documents of the OAIC, created under s 17 of
the FOI Act, named 'Senate Estimates February 2022 Index' and 'Senate Estimates October
2021 Index' are updated to have the number of pages and date of each document added. The
schedules attached to this letter have the number of pages and date of each document as
requested.
Certain operations of agencies exemption – s 47E(d)
I have decided to refuse access in part to 11 documents under s47E(d) of the FOI Act. Section
47E(d) of the FOI Act provides that:
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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 an agency.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure could
reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
The FOI Guidelines at [6.101] provides:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably
expected to occur. The term ‘could reasonably be expected’ is explained in greater
detail in Part 5. There must be more than merely an assumption or allegation that
damage may occur if the document were to be released.
Additionally, at [6.103] the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure. The
particulars of the predicted effect should be identified during the decision making
process, including whether the effect could reasonably be expected to occur. Where
the conditional exemption is relied upon, the relevant particulars and reasons should
form part of the decision maker’s statement of reasons, if they can be included
without disclosing exempt material (s 26, see Part 3).
The material that I have found to be conditionally exempt under s 47E(d) of the FOI Act can be
described as information relating to:
• breakdown of additional funding
• current matters;
• legal proceedings;
• draft legislation; and
• international relationships.
In order to determine whether disclosure would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of the OAIC, I
have taken into consideration the functions and activities of the OAIC.
In particular, I have had regard to the Australian Information Commissioner’s privacy
powers, freedom of information powers and regulatory powers, under the
Australian
Information Commissioner Act 2010 (Cth) (AIC Act), the Privacy Act and the FOI Act. The
Information Commissioner has a range of functions and powers directed towards protecting
the privacy of individuals by ensuring the proper handling of personal information. In addition,
under the AIC Act and the FOI Act, the Information Commissioner has a range of functions and
powers promoting access to information under the FOI Act, including making decisions on
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Information Commissioner reviews and investigating and reporting on freedom of information
complaints.
Breakdown of additional funding
One document contains detail of additional funding provided MYEFO 21-22. The total
expenditure contained in this document has been released. However, the breakdown of how
these funds are distributed within the OAIC is not in the public domain. The level of funding
provided to separate activities is subject to ongoing consideration by the Commissioner and
the Department of Finance and may be subject to change over the financial year. In my view,
the OAIC’s ability to manage its ongoing funding would be adversely affected if this
information was released as it may impact on the ability of the Commissioner to undertake
confidential engagement with the Department of Finance. As such, I consider the release of
information in relation to the breakdown of additional funding would have a substantial
adverse effect on the proper and efficient conduct of the operations of the OAIC.
Current matters
A number of documents have information about current and ongoing matters (assessments,
investigations and preliminary inquiry processes) being considered by the OAIC that are not
publicly known. The information includes details including the names of relevant parties, the
subject matter being considered and the current status of the matter. The release of this
information at this time may impact on both the ability of the OAIC to manage the specific
mattes referred to and future matters if parties cannot be confident that their information will
not be kept confidential.
The AAT has recognised in
Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) [24] that the conduct of an agency’s
regulatory functions can be adversely affected in a substantial way when there is a lack of
confidence in the confidentiality of the investigation process. In my view, the OAIC’s ability to
carry out is regulatory functions would be affected if there was a lack of confidence in the
confidentiality of the investigative process. As such, I consider the release of information on
current and ongoing matters that are not currently in the public domain would have a
substantial adverse effect on the proper and efficient conduct of the operations of the OAIC.
Legal proceedings
The Information Commissioner is currently involved in legal proceedings with Senator Patrick.
One document includes details of his claims and information about actions and discussions
held with Senator Patrick that is not publicly available. This information is not subject to legal
professional privilege but is sensitive information concerning an ongoing litigation matter
before the Federal Court. In my view, the OAIC’s ability to manage the litigation in accordance
with its obligations would be adversely affected if this information was released. In addition to
any impact its release would have in relation to these proceedings, it may also adversely
impact future legal proceedings if applicants cannot rely on the confidentiality of discussions
held in relation litigation, including potential litigation. As such, I consider the release of
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information in relation to the current litigation matter would have a substantial adverse effect
on the proper and efficient conduct of the operations of the OAIC.
Draft legislation
A number of documents include details of draft legislation provided to the OAIC by another
agency. The responsibility for undertaking consultation in relation to draft legislation rests
with the minister/department sponsoring the legislation. In this case, the OAIC has been
provided a copy of this draft legislation from another agency. In my view, disclosing such
information about such draft legislation could reasonably be expected to adversely affect the
ability for the OAIC to work in partnership with agencies on draft legislation concerning
matters relevant to the Commissioner’s statutory functions. As such, I consider the release of
information would have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC.
International relationships
One document refers to preliminary discussions with another country in relation to personal
data protection with a view to exploring further cooperation between the two countries. In
my view, the OAIC ability to carry out its functions in relation to such matters would be
affected if there was a lack of confidence in the confidentiality of such preliminary discussions.
As such, I consider the release of such information would have a substantial adverse effect on
the proper and efficient conduct of the operations of the OAIC.
I am satisfied that 11 documents are conditionally exempt under s 47E(d) of the FOI Act. I will
consider the public interest in relation to these conditionally exempt documents below.
The public interest test – s 11A(5)
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’.
Subsection 11B(3) of the FOI Act provides a list of public interest factors favouring disclosure.
The FOI Guidelines also provide a non-exhaustive list of public interest factors favouring
disclosure, as well as public interest factors against disclosure. In my view, the relevant public
interest factor in favour of disclosure in this case is that the disclosure would promote the
objects of the FOI Act and inform debate on a matter of public importance.
The public interest factors favouring disclosure must be balanced against any public interest
factors against disclosure. The FOI Guidelines contain a non-exhaustive list of factors against
disclosure. In my view, the following relevant public interest factor against disclosure in this
case is that it:
• could reasonably be expected to impede the administration of justice generally,
including procedural fairness
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• could reasonably be expected to prejudice an agency’s ability to obtain confidential
information
• could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future
• could reasonably be expected to prejudice the management function of an agency
I have given significant weight to the factor that disclosure could reasonably be expected to
prejudice the management function of an agency and an agency’s ability to obtain similar
information in the future. In each case, the information that has been considered exempt
relates to sensitive information that the OAIC has been provided in relation to financial, legal,
legislation, international and investigative matters. The disclosure of the information may
impact on the willingness of parties to provide this information to the OAIC in the future and
thus directly impact the management function of the OAIC. Whilst I acknowledge the factors
that support disclosure of this information, particularly that disclosure would promote the
objects of the FOI Act, I am satisfied that giving access to the conditional exempt material at
this time would, on balance, be contrary to the public interest.
Conclusion
Please see the following page for information about your review rights and information about
the OAIC’s disclosure log.
Yours sincerely
Emily Elliott
Senior Lawyer
1 April 2022
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review will be conducted, to the extent possible, by an officer of the OAIC who was
not involved in or consulted in the making of my decision. If you wish to apply for an internal
review, you must do so in writing within 30 days. There is no application fee for internal
review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax on 02
9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If you
wish to apply for IC review, you must do so in writing within 60 days. Your application must
provide an address (which can be an email address or fax number) that we can send notices to,
and include a copy of this letter. A request for IC review can be made in relation to my
decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable that
my decision be considered by the AAT, the Information Commissioner may decide not to
undertake an IC review.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
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https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on the Access our information page on our
website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to members
of the public within 10 days of release, except if they contain personal or business information
that would be unreasonable to publish.
The documents I have decided to release to you do not contain business or personal
information that would be unreasonable to publish. As a result, the documents will be
published on our disclosure log shortly after being released to you.
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