Official
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2022/097
Trav S
By email to
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email of 25 March 2022 in which you made a request for access to documents to the
Department of the Prime Minister and Cabinet (the Department), under the
Freedom of Information Act
1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the FOI Act.
Scope of request
You set out your request in the fol owing terms:
…
Last year Mr John Reid served me with a notice of intent to consider a vexatious declaration with
the Information Commissioner. I asked him to do so. Documents obtained via FOI reveal
significant maladministration in the administration of the Humanitarian Overseas Service Medal.
Public interest requires scrutiny, discussion, comment and review of the government’s activities in
this case.
Please provide a copy of the correspondence between Mr Reid and Mr Peter Rush relating to this
vexatious declaration matter. Please include mobile phone text messages.
…
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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Material taken into account
In reaching my decision I referred to the fol owing:
• the terms of your request
• searches undertaken by the Department regarding your request
• the documents relevant to your request
• the FOI Act (specifical y sections 24A and 47F)
• the Guidelines issued by the Information Commissioner under s 93A of the FOI Act
(the Guidelines).
Documents in scope of request
The Department has undertaken searches for relevant records and has identified two email chains that
fall within the scope of your request. The email chains were subject of a decision in FOI/2021/266.
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The Department has also conducted a search of the work mobile phones of the two relevant SES of icers;
however, no text messages related to the terms of your request were located.
Decision
With regard to the documents you have requested, and which have been identified as falling within the
scope of your request, I have decided to grant access in part, with exempt and irrelevant material
deleted under section 22 of the FOI Act.
I have decided to refuse your request for access to documents in the form of text messages under
section 24A(1) of the FOI Act. This decision has been made on the basis that the Department has taken
all reasonable steps to find the documents in the form of text messages, and those documents cannot
be found or do not exist.
Reason for decision
My findings of fact and reasons for deciding that certain information is irrelevant is set out below.
1.
Subsection 24A(1) – Documents cannot be found do not exist
Subsection 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
i. is in the agency’s or Minister’s possession but cannot be found; or
i . (i ) does not exist.
1 See Document 10 which was partially released to you in part in the decision FOI/2021/266 decision.
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In determining what the FOI Act means with respect to ‘all reasonable steps’, I have had regard to the
FOI Guidelines which discuss the meaning of ‘reasonable’ in section 24A(1)(a) and that it is not designed
to be constructed so as to go beyond the limit assigned by reason, not to be extravagant or excessive,
rather to be moderate and of such an effort as is judged to be appropriate or suitable to the
circumstances .
Part of your request seeks access to text messages between two of the Department’s SES of icers. I am
satisfied that if such texts existed they would only be found on the mobile phones of these of icers.
Accordingly, the Department conducted searches of the relevant mobile phones. I am satisfied that these
searches are appropriate and suitable given the circumstances. No text messages related to the terms of
your request were located.
Accordingly, I am satisfied that all reasonable steps have been taken to find documents in the form of
text messages, and those documents cannot be found or do not exist. I have therefore decided to refuse
your request for access to documents in the form of text messages under section 24A(1) of the FOI Act.
2.
Section 47F - Public interest conditional exemption—personal privacy
Section 47F(1) of the FOI Act provides:
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
Personal Information has the same meaning as set out in section 6 of the
Privacy Act 1988 and is
defined as:
…
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 a material form or not.
I have examined the documents and I am satisfied that they contain ‘personal information’ that relates to
you. Your request has been made via the Right-To-Know website, which automatically publishes all
correspondence between an FOI applicant and the agency to which the request has been made.
Accordingly, PM&C’s correspondence of 5 April 2022 advised we would assess any personal information
identified within documents and apply section 47F(1) of the FOI Act where personal information may be
conditional y exempt from release. As an alternative, PM&C invited you to provide a different address for
the delivery of an access decision. You have not done so.
Given the above, it is my view that releasing the documents containing your personal information via
Right-To-Know is tantamount to ‘disclosure to the world at large’. You have not advised PM&C of your
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consent for this to occur. Therefore, I am satisfied that to do so would involve the unreasonable
disclosure of your personal information and that this material is conditional y exempt from release under
section 47F(1) of the FOI Act.
3.
Public interest
The FOI Act provides that a conditional y exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest
2. In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
As I have decided that parts of the documents are conditional exempt, I am now required to consider
the public interest factors, in doing so I have not taken into account the irrelevant factors as set out in
subsection 11B(4) of the FOI Act, this includes:
a) access to the document could result in embarrassment to the Commonwealth Government, or
cause a loss in confidence in the Commonwealth Government
b) access to the document could result in any person misinterpreting or misunderstanding the
document
c) the author of the documents 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
In applying the public interest, I have noted the objects of the FOI Act
3 and the factors favouring access
as listed in subsection 11B(3) of the FOI Act. Having regard to the material before me and the
circumstances of the documents found to be conditional y exempt I am satisfied of the fol owing:
• access would promote the objects of the FOI Act
4; and,
• access wil provide you with your own personal information.
The FOI Act does not set out any public interest factors against disclosure and require that agencies are
to have regard to the FOI Guidelines in determining whether disclosure would, on balance, be contrary
to the public interest
5. The FOI Guidelines contain a non-exhaustive list of factors that, depending on the
circumstances of the documents found to be conditional y exempt, may weigh against disclosure.
Factoring against disclosure in this case is that disclosure of the information could reasonably be
expected to prejudice the protection of an individual’s right to privacy. I give this significant weight.
The conditional y exempt material identifies you and the application of s 47F prevents the unreasonable
disclosure of your identity on a publically available website, while providing you access to the material
covered by the scope of your request. On this basis, I am satisfied that the disclosure of the conditional y
exempt material in the requested documents would be contrary to the public interest.
2 Section 11A(5) of the FOI Act.
3 Section 3 of the FOI Act
4 Section 11B(3)(a) of the FOI Act
5 Section 11B(5) of the FOI Act
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I have therefore decided that parts of the requested documents are conditional y exempt under s 47F of
the FOI Act.
4.
Deletion of irrelevant matter
Section 22 of the FOI Act provides that if giving access to a document would disclose information that
would be reasonably regarded as irrelevant to the request, it is possible for the Department to prepare
an edited copy of the document, modified by deletions, ensuring that the edited copy would not disclose
any information that would reasonable be regarded as irrelevant to the request.
On 5 April 2022, the Department advised you of its policy to exclude the personal and direct contact
details of of icers not in the Senior Executive Service (SES) and any Ministerial staff, as well as any
person’s signature, and the mobile or direct numbers of SES of icers, which are contained in documents
that fal within the terms of an FOI request. This category of information is identified as irrelevant and
documents can be modified by the Department to delete the irrelevant material.
Accordingly I am satisfied that parts of the document are irrelevant under section 22(1)(a)(i ) of the
FOI Act. The remainder of the document has been released to you as it is relevant to your request.
Review rights
If you disagree with my decision, you may apply for internal review or Information Commissioner review
of the decision.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Department for an internal review of my
decision. The internal review application must be made within 30 days after the date of this letter. Where
possible please attach reasons why you believe review of the decision is necessary. The internal review
wil be carried out by another of icer within 30 days from the date it is received.
Applications for review should be sent to
xxx@xxx.xxx.xx. More information about making a request to the Department is at:
https://www.pmc.gov.au/who-we-are/accountability-and-reporting/freedom-information.
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Information Commissioner review
Under section 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 after the date of this letter.
More information about Information Commissioner review is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-commissioner-
review/.
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response, you
can make a complaint to the Australian Information Commissioner. A complaint to the Information
Commissioner must be made in writing.
More information about complaints is available on the Of ice of the Australian Information Commissioner
at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/. If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx. Yours sincerely
Petra Gartmann
Assistant Secretary
Legal Policy Branch
Department of the Prime Minister and Cabinet
9 May 2022
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