Our reference: FOIREQ22/00161
Julie
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00161
Dear Julie
I am writing to advise you of my decision in response to your application for internal review of the
decision made on
9 June 2022 - FOIREQ22/00095.
Original FOI Decision (FOIREQ22/00095)
You lodged a FOI request on 10 April 2022. In your request, you sought access on the following
terms:
“Dear Office of the Australian Information Commissioner,
I request copy of the following Commissioner Briefs listed at
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttok
now.org.au%2Frequest%2F8508%2Fresponse%2F24932%2Fattach%2F8%2FFINAL%
2520Schedule%2520Feb%252022.pdf&data=04%7C01%7Clegal%40oaic.gov.au
%7C7c48683bb34f4d717ecb08da1af868a9%7Cea4cdebd454f4218919b7adc32bf1549
%7C0%7C0%7C637851951752063302%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4
wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdat
a=v9%2FFGaFbBKDL1Cyrqw%2FY%2F%2F%2B7UWkE5H%2FLkCXqo4EbxKw%3D&a
mp;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 ….
On 10 May 2022, you were informed that, as documents within the scope of your request contained
information concerning an organisation’s business and professional affairs, the OAIC had decided
under s 27 of the FOI Act to consult the relevant organisation. As per s 15(6) of the FOI Act, the
period for processing your request was extended by 30 days to allow time to undertake this third-
party consultation.
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
On 9 June 2022, the original delegate informed you that they had identified 22 documents within
the scope of your request. They informed you that they had decided to give you access to 17
documents in full and 5 documents in part. In making this decision, the delegate relied upon the
conditional exemptions in s 47E(d) of the FOI Act – certain operations of agencies and s 47F of the
FOI Act – personal privacy.
On 1 July 2022, you wrote the OAIC requesting internal review of the original delegate’s decision.
Material taken into account
In making my internal review decision, I have had regard to the following:
• your original freedom of information request FOIREQ22/00095 dated 10 April 2022;
• the decision of the delegate dated 9June 2022 the subject of this review;
• your request for internal review dated 1 July 2022;
• line area consultations made by the original delegate in processing your original
request;
• submissions received from third parties in the course of processing your original
request;
• further consultations (both internal and external) 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.
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)). I have had regard
to, but not relied on, the delegate’s original Freedom of Information (FOI) decision.
I have identified 5 documents as at issue for the purposes of this internal review: documents
numbered
3, 20, 25, 35, and 53 in the schedule from the original decision. Based on the
information before me at this time, I have decided to affirm the original decision in full. Please find
attached a schedule of listing the documents at issue, the original decision and the decision on
internal review.
The reasons for this decision are as follows.
Certain operations of agencies exemption – s 47E(d)
I have decided to affirm the original delegate’s decision to refuse access in part to 4 documents
under s 47E(d) of the FOI Act. Section 47E(d) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
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(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).
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.’
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.
The OAIC is an independent statutory agency within the Attorney-General’s portfolio, established
under s 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 QC) - as well as the staff of the OAIC. s 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). s 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 perform freedom of information functions and the
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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.
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 affirmed as conditionally 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.
Information regarding current matters and the NDB scheme
Documents 3 and
20 contain information provided under the NDB and material regarding current
investigation processes scheme that is not publicly known. In undertaking this internal review,
both the line area, and the third-party organisation to which some of the information relates, were
consulted. I am satisfied that the release of the relevant information at this time would reasonably
be expected to impact on both the ability of the OAIC to manage the specific matters referred to, as
well as future matters, if parties cannot be confident that their information will not be disclosed to
members of the public who are not parties to an investigation. I note that if entities become aware
that it is possible that their engagement with OAIC may be disclosed is response to FOI requests, it
is reasonably likely to cause entities to adopt a more adversarial approach in their engagement
with OAIC and therefore prejudice the flow of information to the OAIC.
I consider that 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. Accordingly, 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.
Ongoing legal proceedings
The Information Commissioner is currently involved in legal proceedings with Mr Rex Patrick.
Document 35 includes details of these legal proceedings. This is sensitive information concerning
an ongoing litigation matter before the Federal Court.
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In undertaking this internal review, the lawyer managing this litigation was consulted and it was
confirmed that this information was not publicly available. I am satisfied that the OAIC’s ability to
manage these proceedings 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. 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 collaborations with the
regulators of other nations. These conversations are still in their early stages and are not yet
publicly available. The disclosure of this information would adversely impact on the confidence of
other parties 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. In undertaking this internal review, I consulted with the line area and
confirmed that this material was not yet publicly available. Accordingly, I am satisfied that the
release of such information would have a substantial adverse effect on the OAIC’s operations.
For these reasons, I am satisfied that the above material is conditionally exempt under s 47E(d) of
the FOI Act.
Personal privacy conditional exemption – s 47F
I have chosen to affirm the original delegate’s decision that
Document 53 is conditionally exempt
in part under s 47F of the FOI Act. The conditionally exempt material in this document is the
signatures of staff members of the Australian Broadcasting Corporation and the Australian
Electoral Commission.
Personal information
s 47F of the FOI Act conditionally 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:
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.
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Consideration
In determining whether disclosure of personal information would be unreasonable, section 47F(2)
of the FOI Act requires me to have regard to the following 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 well 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. 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. In undertaking this
internal review, I consulted with the AEC and ABC to confirm whether they still held concerns about
the release of the relevant staff members’ signatures. I am satisfied that this material is
conditionally exempt.
For these reasons, I am satisfied that the material outlined above is conditionally exempt under
section 47F of the FOI Act.
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)).
I must consider whether disclosure of the information at this time would be contrary to the public
interest. As noted above, based on the additional internal and external consultations I undertook
in processing this internal review, I am satisfied that the relevant information is conditionally
exempt under s 47E(d) and 47F of the FOI Act.
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. In my view, the relevant public interest factor in favour of disclosure in this
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case is that the disclosure would promote the objects of the FOI Act. Other factors are not relevant
in this instance.
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 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
information in the future, as well as placing significant weight on the impact disclosure could have
on the privacy of individuals.
I am satisfied that giving access to the conditionally exempt material at this time would, on
balance, be contrary to the public interest.
Conclusion
Please find attached a schedule listing the documents at issue and the exemptions applied to each
document. I have not supplied you with a further copy of the documents that were released to you
in full in the original decision FOIREQ22/00095. Please let me know if you would like to be provided
with another copy of these documents. Please see the following page for information about your
review rights.
Yours sincerely
Emma Liddle
Director Legal
1 August 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 em
ail to 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 contact
xxx@xxxx.xxx.xx.
More information is available on the
Access our information page on our website.
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