Our reference: FOIREQ22/00095
Attention:
Julie
By Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request – FOIREQ22/00095
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 10 April 2022.
In your request you seek access on the fol owing terms:
“I request copy of the fol owing Commissioner Briefs listed at:

https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttokn
ow.org.au%2Frequest%2F8508%2Fresponse%2F24932%2Fattach%2F8%2FFINAL%2520
Schedule%2520Feb%252022.pdf&data=04%7C01%7Clegal%40oaic.gov.au%7C7c4
8683bb34f4d717ecb08da1af868a9%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7
C0%7C637851951752063302%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMD
AiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=v9%2FFG
aFbBKDL1Cyrqw%2FY%2F%2F%2B7UWkE5H%2FLkCXqo4EbxKw%3D&reserved=0

Corporate 3, 4, 5, 6, 8, 9

Privacy 20, 25, 26, 29, 30, 32, 34

FOI 35-38, 40, 42, 43, 48, 53…”
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have identified 22 documents within the scope of your request. I have decided to give you
access to 17 documents in ful  and 5 documents in part.
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

Reasons for decision
Material taken into account
In making my decision, I have had regard to the fol owing:
•  your freedom of information request dated 10 April 2022
•  any submissions made by third parties;
•  the documents at issue
•  the FOI Act
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act (the FOI Guidelines), and
•  relevant case law
Certain operations of agencies exemption – s 47E(d)
I have decided to refuse access in part to 4 documents under s47E(d) of the FOI Act. Section
47E(d) of the FOI Act provides that:
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:
…
(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).
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The material that I have found to be conditional y exempt under s 47E(d) of the FOI Act can be
described as information relating to:
•  material related to current matters (investigations, assessments and preliminary
inquiries) being considered by the OAIC;
•  information provided by private organisations under the Notifiable Data Breach
(NDB) scheme;
•  ongoing legal proceedings; 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
Information Commissioner reviews and investigating and reporting on freedom of information
complaints.
Information regarding current matters and the NDB scheme
Documents 3 and 20 contains information provided under the NDB scheme that is not publicly
known and material regarding current investigation processes being undertaken by the OAIC,
respectively. 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. Indeed, if third parties become
aware that it is possible that their engagement with OAIC may be incidentally disclosed under
FOI requests, it is reasonably likely to cause third parties to adopt a more adversarial approach
in their engagement with OAIC and therefore prejudice the flow of information to the OAIC.
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.

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link to page 4 Ongoing legal proceedings
The Information Commissioner is currently involved in legal proceedings with Senator Rex
Patrick. Document 35 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 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.
International relationships
Document 25 contains material regarding discussions and potential col aborations with the
regulators of other nations. These conversations are still in their early stages and remain
outside of the public record. Were they to be made public, 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 for these specific discussions and also for further discussions with other
nations. As details of these arrangements remain non-public at the time of this internal
review decision, I am satisfied that the release of such information have a substantial
adverse effect on the OAIC’s operations.
For these reasons, I am satisfied that the above material is conditional y exempt under
s 47E(d) of the FOI Act.
Personal privacy conditional exemption - section 47F
I have decided one document is exempt in part under section 47F of the FOI Act.1 This
conditional y exempt material is the signatures of staff members of the Australian
Broadcasting Corporation and the Australian Electoral Commission.
Section 47F of the FOI Act conditional y exempts documents where disclosure would involve
the unreasonable disclosure of personal information of any person (including a deceased
person). This exemption is intended to protect the personal privacy of individuals.
In the FOI Act, personal information has the same meaning as in the Privacy Act 1988 (Cth)
(Privacy Act). Under section 6 of the Privacy Act, personal information means:

1 Document 53.
4

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 am satisfied that for the purposes of the FOI Act, an individual’s signature is personal
information.
In determining whether disclosure of personal information would be unreasonable, section
47F(2) of the FOI Act requires me to have regard to the fol owing matters:
•  the extent the information is well known
•  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
•  the availability of the information from publicly accessible sources
•  any other matters I consider relevant.
Personal signatures of government agency staff members
I note that the FOI Guidelines at paragraph [6.153] state that, where a public servant’s
personal information is included in a document because of their usual duties or
responsibilities, it would ordinarily not be unreasonable to disclose unless special
circumstances exist.
In these circumstances, I have considered the fact that the relevant personal signatures are
not widely known nor publicly available, as wel  as taking into consideration the fact that
these signatures are only incidental to the terms of your FOI request.
Disclosure under FOI is disclosure to the world at large, and release of personal signatures
can expose the affected party to the risk of identity fraud and harassment. I also note that
the AEC has recently been experiencing large amounts of disinformation online, as well as
harassment to specific Commission staff members, including harassment to the staff
member whose signature is found within this document. While noting that there are other
signatures within this document from the Commonwealth Department of Public
Prosecutions and the Norfolk Island Authority, I note that these agencies did not have any
concerns with the release of these signatures and therefore these signatures have not been
exempted in this instance.
For these reasons, I am satisfied that the material outlined above is conditional y exempt
under section 47F of the FOI Act.
5

link to page 6 The public interest test – section 11A(5)
An agency cannot refuse access to conditional y exempt documents unless giving access
would, on balance, be contrary to the public interest (s 11A(5)). The FOI Guidelines explain
that disclosure of conditional y exempt documents is required unless the particular
circumstances at the time of decision reveal countervailing harm which overrides the public
interest in giving access.
In the AAT case of Utopia Financial Services Pty Ltd and Australian Securities and Investments
Commission (Freedom of information) [2017] AATA 269, Deputy President Forgie explained
that:2
… the time at which I make my decision for s 11A(5) requires access to be given to a
conditionally 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 this case, I must consider whether disclosure of the documents at this time would 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 at paragraph [6.19] 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.
Other factors are not relevant in this instance.
The public interest factors favouring disclosure must be balanced against any public interest
factors against disclosure. The FOI Guidelines at paragraph [6.22] 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 disclosure:

•  could reasonably be expected to impede the administration of justice generally,
including procedural fairness
•  could reasonably be expected to prejudice an agency’s ability to obtain confidential
information
•  could reasonably be expected to prejudice the proper and efficient conduct of the
OAIC; and
•  would unreasonably infringe upon the privacy of individuals.

I have given significant weight to the factor that disclosure could reasonably be expected to
prejudice the proper and efficient conduct of the OAIC and the OAIC’s ability to obtain similar

2 Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
6

information in the future, as well as placing significant weight on the impact disclosure could
have on the privacy of individuals. 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 efficient conduct 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 conditionally
exempt material at this time would, on balance, be contrary to the public interest.

Access to edited copies with irrelevant and exempt matter deleted (s 22)
The documents within the scope of your request contain material which is exempt from
disclosure.
On this basis, I have prepared the documents for release by removing exempt material in
accordance with section 22 of the FOI Act. As noted above, the material that has been edited
for release will be marked within the documents as well as in the document schedules, when
these are provided to you in due course.
Please see the fol owing page for information about your review rights and information
about the OAIC's disclosure log.
Conclusion
Please see the following page for information about your review rights and information about
the OAIC’s disclosure log.
Yours sincerely

Margaret Sui
Senior Lawyer
9 June 2022

7

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.

8

Applications for IC review can be submitted online at:
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, an edited copy of the
documents wil be published on our disclosure log shortly after being released to you.

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Document Outline