Our reference: FOIREQ22/00096
Julie
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00096 Dear Julie
I am writing to advise you of my decision in response to your application for internal
review of the decision made on
1 April 2022 - FOIREQ22/00096.
Original FOI Decision
You lodged a FOI request on 24 February 2022. In your request, you sought access on the
following terms:
“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, the original decision maker provided you with a notice under s 24AB
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
1300 363 992
T +61 2 9284 GPO Box
www.oaic.gov.au
9749
5218
i i @ i
ABN 85 249 230
of the Office of the Australian Information Commissioner (OAIC). The original decision
maker invited you to respond to the consultation notice to advise whether you wished to
withdraw the request, make a revised request, or did not wish to revise the scope of the
request.
On 22 March 2022, you amended your request to be on the following terms:
“…I request 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. Such a document was previously able to be
produced using computers ordinarily available to the OAIC in FOIREQ20/00213
with even more fields than requested here
(https://www.righttoknow.org.au/request/6...)
I also seek the first page of each Comm Brief as listed:
* 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
That means only 20 pages of Corporate, 40 pages of Privacy, 34 pages of FOI,
and 36 pages of Folder B (130 pages) need to be considered, and that number
of pages and date of document need to be added to already existing s 17
documents…”
The original decision maker considered your revised FOI request and found that a practical
refusal reason no longer existed. Accordingly, the decision maker processed the revised
FOI request.
On 1 April 2022, the delegate advised you that they had identified 129 documents within
scope of your request. Of these 129 documents, the delegate decided to grant access to
118 documents in full and 11 documents in part. In making this decision, the delegate
relied upon the conditional exemption in s 47E(d) of the FOI Act – certain operations of
agencies. The delegate also provided you with the s 17 document, as per the terms of your
request.
Material taken into account
In making my internal review decision, I have had regard to the following:
• Your original freedom of information request FOIREQ22/00048 dated 24
February 2022;
• your amended request dated 22 March 2022;
• the decision of the delegate dated 1 April 2022 the subject of this review;
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link to page 3 link to page 3 link to page 3
• further line area consultations I have completed in undertaking this internal
review;
• the FOI Act;
• relevant case law; and
• the Guidelines issued by the Australian Information Commissioner under s 93A
of the FOI Act.
Preliminary issues
In the documents released to you by the original decision, in the ‘Senate Estimates
February 2022 Index’ document, I note that the requested dates and page numbers are
missing in the documents from the heading ‘Folder B’ until the end of the document.
We apologise for this oversight. I have provided a corrected version of this schedule as part
of this decision.
Internal Review Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
An internal review decision is a ‘fresh decision’ made by a person other than the person
who made the original decision (s 54C of the
Freedom of Information Act 1982 (the FOI Act)).
As such, I have had regard to, but not relied on, the delegate’s original Freedom of
Information (FOI) decision.
I have identified 11 documents as at issue for the purposes of this internal review:
documents numbered 23, 26, 30, 31, 52 and 77 in the Senate Estimates October 2021
schedule from the original decision, and documents numbered 5, 17, 20, 24 and 71 of the
Senate Estimates February 2022 schedule from the original decision. The attached
schedule outlines 11 folios that correspond to those 11 documents. Based on the
information before me at this time, I have decided to set aside the original decision in
relation to the 11 documents at issue, and substitute my decision that:
• at
folio 11 of the attached document bundl
e2 and
folio 8 of the attached document
bundle
3 the sentence outlining the period of High Profile NDBs captured for the
purpose of the Commissioner Brief: High Profile NDBs and the columns headings in
the table of High Profile NDBs that the original decision maker found to be exempt
under s 47E(d) are not exempt.
1 A reference to ‘folio’ refers to the page number of the document bundle (e.g. page 1 is folio 1).
2 Document 23 of the October 2021 schedule.
3 Document 17 of the February 2022 schedule.
3
link to page 4 link to page 4 link to page 4 link to page 4 link to page 4
• at
folio 2 of the attached document bundle
4 and
folio 9 of the attached document
bundle
5 the Commissioner brief title and first sentence of the first dot point under
the sub-heading ‘Key messages’, along with the first sentence of the second dot
point under the sub-heading ‘Critical facts’ that the original decision maker found
to be exempt under s 47E(d) are not exempt.
• the material on
folio 7 of the attached document bundle
6 found to be exempt
under s 47E(d) is not exempt. Accordingly, document 5 is provided to you in full.
I affirm the remainder of the original decision to refuse access in part to 10 of the 11
documents at issue under s 47E(d) of the FOI Act.
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Please refer to the schedule of documents attached.
The reasons for this decision are as follows.
Certain operations of agencies exemption – s 47E(d)
I have found parts of folios 1-4 and 6-11 to be conditionally exempt under s 47E(d).
Section 47E(d) of the FOI Act states:
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.
As discussed in the FOI Guidelines and in IC review cases
8, for a document to be
conditionally exempt under s 47E(d) it needs to be shown that 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.
The FOI Guidelines at [6.101] explain:
4 Document 26 of the October 2021 schedule.
5 Document 20 of the February 2022 schedule.
6 Document 5 of the October 2021 schedule
7 Documents 23, 26, 30, 31, 52, 77 of the October 2021 schedule; Documents 17, 20, 24, 71 of the February 2022
schedule.
8 See
FOI Guidelines [6.95] – [6.103] and [6.120] – [6.123];
‘VG’ and Department of the Prime Minister and
Cabinet (Freedom of information
) [2020] AICmr 42; ‘SV’ and Services Australia (Freedom of information
) [2020]
AICmr 32; ‘SA’ and Department of Home Affairs (Freedom of information
) [2020] AICmr 17; Paul Farrell and
Australian Federal Police (Freedom of information
) [2019] AICmr 68 and P
aul Farrel and Department of Home
Affairs (No 5) (Freedom of information
) [2019] AICmr 65.
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For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. … There must be more than merely an assumption
or allegation that damage may occur if the document were to be released.
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).
In the Administrative Appeals Tribunal (AAT) case of
Diamond and Chief Executive Officer of
the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707, Deputy
President Forgie considered that for a claim under s 47E(d) to succeed, the substantial
adverse effect that would, or could reasonably be expected to, occur must be on the
‘proper and efficient conduct of the operations of an agency’. Deputy President Forgie at
[19] explains that the ‘ordinary meanings of the word “operation” in this context’ includes
‘an act, method or process of working or operating.’
Functions and powers of the OAIC and Information Commissioner
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.
Due to the nature of the documents at issue, 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 1988 (Cth) (Privacy Act) and the FOI Act.
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under section 5 of the AIC Act. The OAIC consists of information officers - the
Australian Information Commissioner and the Privacy Commissioner (both offices
currently held by Angelene Falk) and the FOI Commissioner (Leo Hardiman)- as well as the
staff of the OAIC. Section 5 of the AIC Act also provides that the Information Commissioner
is the head of the OAIC for the purposes of the
Public Service Act 1999 (Cth). Section 5
further provides that for the purposes of the
Public Governance, Performance and
Accountability Act 2019 (Cth) the Information Commissioner is the accountable authority of
the OAIC.
The functions of the OAIC are the freedom of information functions, which are about giving
the Australian community access to information held by the Australian Government in
accordance with the FOI Act (and other Acts); the privacy functions, which are about
mainly about protecting the privacy of individuals in accordance with the Privacy Act; and
the information commissioner functions, which are strategic functions concerning
information management by the Australian Government. All the information officers may
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perform freedom of information functions and the privacy functions, while only the
Information Commissioner can perform the information commissioner functions.
Investigating privacy breaches, either in response to a complaint from a member of the
public or on the Commissioner’s own initiative; conducting privacy assessments of APP
entities; and regulating the Notifiable Data Breaches (NDB) scheme are among the
Information Commissioner’s primary privacy functions.
Assessing and managing vexatious declaration applications made by Commonwealth
agencies, making decisions on Information Commissioner reviews, and investigating and
reporting on freedom of information complaints are among the Information
Commissioner’s primary FOI functions. Section 29 of the AIC Act imposes strict conditions
on the recording, use and disclosure of information acquired in the course of performing
information commissioner, privacy and freedom of information functions.
Consideration
In deciding whether disclosure of the documents requested in this case would, or could
reasonably be expected to, have a substantial adverse effect on the OAIC’s operations, I
have considered the functions and responsibilities of the Information Commissioner as set
out above.
The material that I have found conditionally exempt under s 47E(d) of the FOI Act is
material related to:
• current matters (preliminary inquiries, assessments and investigations) being
considered by the OAIC;
• ongoing legal proceedings;
• draft legislation; and
• international relationships.
Information related to ongoing matters (investigations, assessments, and preliminary
inquiries) involving the OAIC
A number of the documents at issue contain information about ongoing matters being
undertaken by the OAIC.
9 This information is not in the public domain and includes
information on issues being investigated or considered by the OAIC, as well as the current
status of the matter. I consider that if information of this nature is disclosed it is
reasonably likely to prejudice the OAIC’s ability to properly manage ongoing matters, with
management of such matters a part of the OAIC’s statutory functions.
As noted in the FOI Guidelines at [6.121], in
Re Telstra Limited and Australian Competition
and Consume Commission [2000] AATA 71, it was upheld by the AAT that, where it is
established that disclosure of information would be reasonably likely to prejudice a
9 Documents 23, 26, 30 and 77 of the October 2021 Schedule; Documents 17, 20, 24 and 71 of the February 2022
Schedule.
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government agency’s statutory functions, the conditional exemption at s 47E(d) of the FOI
Act applies.
I consider that such circumstances exist in this matter, with it being reasonably likely that
disclosure of the information at issue could negatively impact the OAIC’s ability to
conciliate, investigate and engage with relevant parties regarding ongoing investigations,
assessments and preliminary inquiries. This is because relevant parties may consider that
they cannot engage openly with the OAIC if the information they provide is at risk of
becoming publicly available. The OAIC relies heavily on relevant parties to provide
information including sensitive and confidential information in the course of a preliminary
inquiry, assessment or investigation. If there is a loss of confidence in the confidentiality of
those processes, it is highly likely that relevant parties would become less likely to provide
full and frank information to the OAIC, leading to a substantial adverse impact on the
proper and efficient conduct of the OAIC in its undertaking of ongoing investigations,
assessments and preliminary inquiries. For example, the OAIC may not be alerted to
conduct which may be in breach of the Australian Privacy Principles and the Privacy Act; it
may have insufficient information on which to open an investigation; and may have
insufficient information to ascertain whether breaches of the APPs or Privacy Act have
occurred.
Furthermore, the ability of the OAIC to undertake these functions may be stymied where
the subject of a matter under investigation, assessment or inquiry remains out of the
public domain, or the investigation, assessment or inquiry is ongoing , such that
premature release of information at issue would be reasonably likely to prejudice the
progression of that investigation, assessment or inquiry.
I am satisfied that parts of folios 1-3 and 6
10; and parts of folios 8-11
11 contain information
provided to the OAIC in the course of or in connection with an investigation, assessment or
inquiry and that their disclosure would substantially adversely affect the willingness of
third parties to provide information, and release of this information would be reasonably
likely to prejudice progression of that ongoing investigation, assessment or inquiry. I
therefore find those documents (parts thereof) are conditionally exempt under s 47E(d).
Ongoing legal proceedings
Folio 5
12 contains sensitive information about discussions with Senator Rex Patrick in
respect of ongoing legal proceedings between the Information Commissioner and the
Senator. In line with the aforementioned reasoning, in my view, it would be reasonably
expected that disclosure of that information would have a substantially adverse effect on
the OAIC’s ability to engage in such discussions with parties during legal proceedings, if
there is a loss of confidence in the OAIC’s ability to maintain confidence in these processes.
10 Documents 23, 26, 30 and 77 of the October 2021 schedule.
11 Documents 17, 20, 24 and 71 of the February 2022 schedule.
12 Document 52 of the October 2021 schedule.
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link to page 8 link to page 8 link to page 8
Proceedings may be less easily resolved, and/or resolved in a less efficient, timely, or cost-
effective manner.
I therefore find that the material at issue in folio 5 is conditionally exempt from disclosure
under s 47E(d) on the basis that disclosure would have a substantially adverse effect on
the proper and efficient conduct of the operations of the OAIC in respect of the conduct of
legal proceedings in which it is a party.
Draft legislation
Folio 3
13 and folio 10
14 contain information regarding draft legislation provided by another
agency, for the purpose of consulting with the OAIC on that legislation. Were aspects of
this consultation process to be disclosed by the OAIC, I am satisfied that this could
reasonably be expected to lead to reduced confidence in the OAIC by other agencies such
that the ability of OAIC to engage in such consultation activities would be substantially
adversely affected. I am therefore satisfied that release of this material would adversely
affect the proper functioning of the OAIC’s operations. I am also satisfied that, despite the
passing of time this information remains private, and its disclosure will have a substantial
adverse effect on the OAIC’s operations.
International Relationships
Folio 4
15 contains material regarding discussions with another country’s government in
relation to exploring cooperation regarding data protection between the two countries.
These conversations are still in their early stages and remain outside of the public record
and were undertaken on the mutual understanding of confidence. Were they to be made
public without prior consultation with the other party, this would, in line with the above
reasoning, impact upon the confidence of the other party that the OAIC was able to
maintain confidentiality of such discussions. This would be reasonably expected to lead to
a substantial adverse effect on the OAIC’s ability to engage in these discussions with other
nations, both in respect of these specific discussions and additionally in respect of further
discussions with other nations. As details of these discussions remain non-public at the
time of this internal review decision, I am satisfied that the release of such information
would have a substantial adverse effect on the OAIC’s operations in respect particularly of
its international engagement with other nations.
The public interest test – s 11A(5)
An agency cannot refuse access to a conditionally exempt document unless giving access
would, on balance, be contrary to the public interest (s 11A (5)).
13 Document 30 of the October 2021 schedule.
14 Document 24 of the February 2022 schedule.
15 Document 31 of the October 2021 schedule.
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In
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission
(Freedom of information) [2017] AATA 269 at [113] Deputy President Forgie explained that:
… the time at which I make my decision for s 11A(5) requires access to be given to a
conditional y exempt document “at a particular time” unless doing so is, on balance,
contrary to the public interest. Where the balance lies may vary from time to time for
it is affected not only by factors peculiar to the particular information in the
documents but by factors external to them.
In the circumstances here, I must consider whether disclosure of the information at this
time would be contrary to the public interest. As noted above, I am satisfied that the
relevant information remains conditionally exempt under s 47E(d) of the FOI Act.
In addition to the factors favouring disclosure found listed the FOI Act, the FOI Guidelines
provide a non-exhaustive list of factors favouring disclosure (see [6.19]). In this case, I am
of the view that factors favouring disclosure are that disclosure will promote the general
objects of the FOI Act, inform the community of the Government’s operations and enhance
the scrutiny of government decision making.
Against these factors I must balance the factors against disclosure. The FOI Act does not
specify any factors against disclosure; however, the FOI Guidelines provide a non-
exhaustive list of factors against disclosure [see 6.22]. In my view the factors that weigh
against disclosure in this instance are as follows.
Disclosure of the information at issue:
• could reasonably be expected to impede the administration of justice generally,
including procedural fairness;
• could reasonably be expected to impede the flow of information to a regulatory
agency; and
could reasonably be expected to prejudice an agency’s ability to obtain
confidential information.
On balance, I consider that the factors against disclosure outweigh the factor in favour of
disclosure. In making my decision, I have given significant weight to the need of the OAIC
to be able to conduct its operations properly and efficiently, in order to perform its
statutory functions.
I have therefore decided that it would be contrary to the public interest to give you access
to the information that I have found to be conditionally exempt under s 47E(d) of the
FOI Act.
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Further information
Please see the following page for information about your review rights.
Yours sincerely
Caren Whip
General Counsel
10 May 2022
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If you disagree with my decision
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 30 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.
s 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:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email t
o xxx@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
contac
t xxx@xxxx.xxx.xx. More information is available on the
Access our information page
on our website.
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Document Outline
