LEX 48751
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Jasmine (Position Number 62329540), Information
Access Unit, Department of Veterans’ Affairs
Applicant:
Verity Pane
Decision date:
26 April 2022
FOI reference number:
LEX 48751
Sent by sigbox:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Verity Pane,
Freedom of Information Request: LEX 48751
Decision
1.
The Department of Veterans’ Affairs (Department) has undertaken a reasonable search of its
records and has identified one (1) document bundle relevant to your request.
2.
I have made a decision to grant access in part to the documents.
3.
The documents that I have chosen to grant access to in part, are set out in Schedule 1,
together with applicable exemption provisions. Where I have decided to grant access in part,
I have provided access to an edited copy of the documents, modified by deletions in
accordance with section 22(2) of the Freedom of Information Act 1982 (Cth) (FOI Act).
Authority to make decision
4.
I, Jasmine (Position Number 62329540), Information Access Officer, Information Access Unit,
am an officer authorised by the Secretary of the Department to make decisions about access
to documents in the possession of the Department in accordance with section 23(1) of the
FOI Act.
1
Summary
5.
On 26 March 2022, you made a request for access to documents in the possession of the
Department. Your request sought access to:
To the extent the department has documents in its possession that fal within the
scope of this FOI request, you wil treat the names and position titles of
Commonwealth employees as in scope of this request made under the FOI Act. No
agreement to exclude is given.
I request copy of al LEX, TRIM, Y-Drive and Microsoft Teams chat records held by
DVA that reference or refer or relate to LEX 47367.
You are to redact any email address of mine as irrelevant under s 22.
6.
I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the Freedom of Information (Charges) Regulations 2019.
Material taken into account
7.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the documents fol ows.
8.
I have taken the fol owing material into account in making my decision.
the terms of your request;
the types of information and documents that are in the Department’s possession;
the content of the document that fal within the scope of your request;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legal y
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the fol owing provisions of the FOI Act relevant to
my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access; and
- Section 22 Access to edited copies with exempt or irrelevant material deleted
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- Section 42 Documents subject to legal professional privilege
- Section 45 Documents communicated in confidence
- Section 47E Public interest conditional exemptions -- certain operations of agencies
- Section 47F Public interest conditional exemptions -- personal privacy
- Section 47G Public interest conditional exemptions -- business
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines); and
the request LEX 47367, noting this decision is not yet finalised.
9.
A ful extract of al FOI Act provisions used to make my decision are provided in Schedule 2.
Reasons for decision
10. I have decided to grant access to the documents within the scope of your request, subject to
the fol owing exemptions in accordance with the FOI Act:
Documents subject to legal professional privilege (section 42)
11. Section 42 of the FOI Act provides that a document is an exempt document if it is of such a
nature that it would be privileged from production in legal proceedings on the ground of
legal professional privilege (LPP). The FOI Guidelines provide that, at common law,
determining whether a communication is privileged requires a consideration of:
(a)
whether there is a legal adviser-client relationship;
(b)
whether the communication was for the purpose of giving or receiving legal advice
or for use or in connection with actual or anticipated litigation;
(c)
whether the advice given is independent; and
(d)
whether the advice given is confidential.
12. The documents within the scope of your request contain legal communications between
Commonwealth staff. I consider that these communications were provided for the purpose
of giving or receiving legal advice and as such, these communications have been removed.
13. As section 42 of the FOI Act is not a conditional exemption, I am not required to consider a
public interest test.
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Documents containing material obtained in confidence (section 45)
14. Section 45 of the FOI Act provides that a document is an exempt document if its disclosure
under the Act would found an action by a person for a breach of confidence. The FOI
Guidelines provide that, To found an action for breach of confidence (which means s 45
would apply), the fol owing five criteria must be satisfied in relation to the information:
(a)
it must be specifical y identified;
(b)
it must have the necessary quality of confidentiality;
(c)
it must have been communicated and received on the basis of a mutual
understanding of confidence;
(d)
it must have been disclosed or threatened to be disclosed, without authority; and
(e)
unauthorised disclosure of the information has or wil cause detriment.
15. The documents within the scope of your request contain information which I consider to be
provided in confidence by third-parties. The documents have been edited to remove the
material obtained in confidence.
As section 45 of the FOI Act is not a conditional exemption, I am not required to consider a public
interest test
Public interest conditional exemptions--certain operations of agencies (sections 47E(c) and
47E(d))
16. The documents within the scope of your application contain the names, contact information
and position titles of Commonwealth staff. I have decided that s 47E(c) and 47E(d) applies to
this material, as identified in Schedule 1.
17. Section 47E(c) conditional y exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the management or
assessment of personnel by the Commonwealth or an agency. Management of personnel by
the Department includes, among other things, human resources policies and activities,
recruitment, and work health and safety.
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18. Section 47E(d) conditional y exempts documents where 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.
19. The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information general y
provided by individual staff members to clients. For example, staff are general y required to
identify themselves in correspondence with clients by a given name and position number.
20. This is consistent with the approach taken by other Commonwealth agencies with similar
functions, including provision of support services and administration of statutory benefits
schemes.
21. Implementation of these policies provides staff at more junior levels with confidence that
they wil not be inappropriately named or contacted in relation to actions taken in the
course of their routine work for the Department.
22. Disclosure of identifying information about staff members contained within the documents
would be inconsistent with these Departmental policies. Knowledge that identifying
information about them may be disclosed in documents accessed under the FOI Act would
be likely to undermine the confidence of staff in Departmental policies intended to support
their work health and safety. Staff concern about inappropriate contact and the potential for
harassment by clients is based on known instances of such things occurring. For example,
public identification of individual staff members in an online client forum.
23. An adverse effect on the Department’s ability to manage staff could reasonably be expected
to result from widespread staff concern about disclosure of identifying information about
staff members. Staff members may experience concern even when not based on personal
experience of harassment.
24. I also note that the Department provides a wide range of services to its clients. To facilitate
efficient conduct of its operations, the Department has established channels for
communication on specific topics and in relation to specific services. These channels, such as
email inboxes and telephone support lines, enable services to be delivered efficiently by
directing clients to the most appropriate point of contact. In addition, the Department is
able to manage staffing efficiently by providing staff with access to communication points
attached to a role rather than to an individual.
25. Disclosure of identifying information about staff members in these documents would
disclose contact details for individual staff members, which is not general y available. Once
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contact details for individual staff members are disclosed they are likely to become publical y
known through private correspondence. Making it possible for clients to address
correspondence to individual staff members or to seek to contact individuals directly is likely
to undermine Departmental arrangements to channel communications based on role rather
than individual. Reduced efficiency in communication and delivery of services could
reasonably be expected to result.
26. Accordingly, for the reasons outlined above I consider that certain material, as identified in
Schedule 1, meets the criteria for conditional exemption under section 47E(c) and 47E(d) of
the FOI Act.
Public interest conditional exemptions--personal privacy (section 47F)
27. Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person
(including a deceased person).
28. Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Cth) (Privacy Act). Personal information is defined in section 6 of the
Privacy Act 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;
(b)
whether the information or opinion is recorded in a material form or not.
29. The elements of ‘personal information’ are:
(a)
it relates only to a natural person (not, for example, a company);
(b)
it says something about the individual;
(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database; and
(d)
the individual’s identity is known or is reasonably ascertainable using the
information in the document.
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30. If information is personal information, it wil be conditional y exempt if disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:
(a)
the extent to which the information is wel 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; and
(d)
any other matter I consider relevant.
31. The documents outlined in Schedule 1 contain the names, contact information and position
titles of staff of the Commonwealth, as wel as of third-parties. Contact details of an
individual staff member, such as their email address or phone number is personal
information about that person.
32. The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information general y
provided by individual staff members to clients. As outlined above, staff are general y
required to identify themselves in correspondence with clients by a given name and position
number. This reduces the likelihood that individuals are reasonably identifiable in a different
context. For example, it reduces the likelihood that a private social media profile can be
linked with an individual who is a staff member of the Department.
33. I consider that disclosure of personal information of individual staff members in the
document would be unreasonable because it would be inconsistent with Departmental
policies and procedures designed to support a sage and efficient working environment.
Additional y, it would be unreasonable because it would be contrary to the expectations of
those individual staff members, who may rely on those Departmental policies and
procedures for assurance of their personal privacy.
34. I consider it appropriate to release the names of third parties within the documents, where
that information is available in publicly accessible sources or otherwise clearly known to you.
35. Accordingly, I have decided that the parts of documents which are listed as exempt in
accordance with this provision in Schedule 1, meet the criteria for conditional exemption.
7
Where a document is assessed as conditional y exempt, access must be given subject to the
public interest test in accordance with section 11A(5).
Application of the public interest test – sections 47E(c), (d) and 47F
36. Section 11A(5) of the FOI Act provides that an agency must give the person access to the
document if it is conditional y exempt at a particular time unless (in the circumstances)
access to the document would, on balance, be contrary to the public interest.
37. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factor which favours disclosure:
(a)
disclosure would promote the objects of the FOI Act by providing access to
government held information.
38. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure could be expected to adversely affect the management of staff of the
Department, resulting in a likely reduction in the capability of the Department to
efficiently carry out its functions;
(b)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with its functions; and
(c)
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy, both in relation to the third-party individuals and staff
of the Department and other commonwealth agencies.
39. I have placed greater weight on these factors. I consider that disruption of established
channels for communication and delivery of services would be likely to fol ow disclosure of
contact information about individual staff members. I consider that impairment of the
Department’s ability to efficiently deliver services to veterans and their families could
reasonably be expected as a result. Further, I consider that there is little public interest in
the disclosure of information identifying individuals who are, or have been, staff members in
roles more junior than the Senior Executive Service. Disclosure of that information could
reasonably be expected to result in interference with the privacy of those individuals by
enabling them to be identified in their private lives and associated with actions for which the
Department is responsible.
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40. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
41. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
Public interest conditional exemptions—business (section 47G)
42. Section 47G of the FOI Act provides that 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, Norfolk Island 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.
43. The documents within the scope of your request contain the names and details of third-
parties. Several of these third parties were unable to be consulted in relation to the
disclosure of their information.
44. Accordingly, I have decided that the parts of documents which are listed as exempt in
accordance with this provision in Schedule 1, meet the criteria for conditional exemption.
Where a document is assessed as conditional y exempt, access must be given subject to the
public interest test in accordance with section 11A(5).
Application of the public interest test:
45. Section 11A(5) provides that an agency must give the person access to the document if it is
conditional y exempt at a particular time unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest.
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46. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act, including:
(i)
reveal the reason for a government decision and any background or
contextual information that informed the decision; and
47. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure 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)
disclosure could reasonably be expected to prejudice the future supply of
information to the Commonwealth, Norfolk Island 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.
48. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
49. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
50. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
51. As explained above, some of the documents subject to your request contain exempt
information.
10
52. Further, on 26 March 2022, you consented to the removal of your email address under
section 22 of the FOI Act, as irrelevant or out of scope of your request.
53. On this basis, I have prepared the documents for release by removing the exempt and
irrelevant material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as wel as at Schedule 1.
Access to documents
54. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
55. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
56. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request wil be published on the Department’s
FOI Disclosure Log which can be accessed at http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
57. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (OAIC) review my decision. We
encourage you to seek internal review as a first step as it may provide a quicker resolution of
your concerns.
Internal review
58. 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 of 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 officer within
30 days.
59. You can make your application for Internal Review in one of the fol owing ways:
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Post:
Information Access Unit, Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4000
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
OAIC review
60. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
61. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
62. If you wish to discuss this decision, please do not hesitate to contact the Information Law
Section using the fol owing details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit,
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4000
Facsimile:
(02) 6289 6337
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Jasmine (Position Number 62329540)
12
Information Access Officer
Information Access Unit
Department of Veterans’ Affairs
26 April 2022
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LEX 48751
Schedule 1
Schedule of documents
Applicant:
Verity Pane
Decision date:
26 April 2022
FOI reference number:
LEX 48751
Document Date of
Document description
Page Decision Exemption
reference document
number
provision
1
Various Bundle of documents within scope of request
1-414 Partial
s 22,
access
s 42,
s 45,
s 47E,
s 47F,
s 47G
14
LEX 48751
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legal y enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
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
(i )
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).
15
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 conditional y
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 conditional y 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
(i )
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
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;
(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
16
(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.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
fol owing ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
17
Requests involving use of computers etc
(1)
Where:
(a)
a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
(b)
It appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba)
it does not appear from the request that the applicant wishes to be provided with
a computer tape or computer disk on which the information is recorded; and
(c)
the agency could produce a written document containing the information in
discrete form by:
(i)
the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or col ating stored information; or
(i )
the making of a transcript from a sound recording held in the agency;
the agency shal deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if the agency had such a document in its possession.
(2)
An agency is not required to comply with subsection (1) if compliance would substantial y and
unreasonably divert the resources of the agency from its other operations.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
17
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(i )
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(i )
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(i )
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shal cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditional y exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
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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).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(i )
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(i i)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (i ); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
Documents subject to legal professional privilege
(1)
A document is an exempt document if it is of such a nature that it would be privileged from
production in legal proceedings on the ground of legal professional privilege.
(2)
A document is not an exempt document because of subsection (1) if the person entitled to
claim legal professional privilege in relation to the production of the document in legal
proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
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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.
(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.
47E
Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
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(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
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).
47F
Public interest conditional exemptions—personal privacy
General rule
(1)
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).
(2)
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 fol owing
matters:
(a)
the extent to which the information is wel 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.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or wel -being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
wel -being, and, without limiting the generality of the foregoing, includes any of the
fol owing:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsel or;
(e)
a social worker.
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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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, Norfolk Island 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.
(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, or by an authority of, the Commonwealth, Norfolk Island or a State or by 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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