PO Box 7820 Canberra BC ACT 2610
10 June 2022
Our reference: LEX 67434
Mr Justin Warren
Only by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Warren
Decision on your Freedom of Information Request
I refer to your request received by Services Australia (the agency) on 11 April 2022 for access
under the
Freedom of Information Act 1982 (the FOI Act) to the following documents:
I request a copy of the Privacy Impact Assessment reference number 43996 titled
"Document Lodgement Machine Learning System Pilots" as listed on the department's
Privacy Impact Assessment Register: https://www.servicesaustralia.gov.au/privacy-
impact-assessment-register.
My decision
The agency holds one document (totalling 31 pages) that relates to your request.
I have decided to
refuse access to this document.
I have decided that the document you have requested is exempt in its entirety because it
contains:
material subject to legal professional privilege (section 42 of the FOI Act)
commercially valuable information (section 47(1)(b) of the FOI Act), and
deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C of the FOI Act).
Please see
Attachment A to this letter for a detailed document schedule and the reasons for
my decision, including the relevant sections of the FOI Act.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways you
can do this. You can ask for an internal review from within the agency, or an external review
by the Office of the Australian Information Commissioner.
See
Attachment B for more information about how to request a review.
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Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Leanne
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
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PO Box 7820 Canberra BC ACT 2610
Attachment A
DOCUMENT SCHEDULE
WARREN, Justin (Right to Know) - LEX 67434
Doc
Pages
Date
Description
Decision
FOI Act
Comments
No.
Exemption
1.
1-
31
20 December
Privacy Impact Assessment:
Exempt in full
s 42
Material subject to legal professional privilege
2021
Document Lodgement
s 47(1)(b)
Commercially valuable information
Machine Learning System
s 47C
Deliberative material
Pilots
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PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
I request a copy of the Privacy Impact Assessment reference number 43996 titled
"Document Lodgement Machine Learning System Pilots" as listed on the department's
Privacy Impact Assessment Register: https://www.servicesaustralia.gov.au/privacy-
impact-assessment-register.
What I took into account
In reaching my decision I took into account:
your FOI request dated 11 April 2022
the document falling within the scope of your request
consultation with third parties about documents which contain information concerning
them
whether release of the material is in the public interest
consultations with agency officers about:
o the nature of the documents
o the agency's operating environment and functions
guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the Guidelines), and
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the document that you requested is exempt in its entirety under section 42,
section 47(1)(b) and section 47C of the FOI Act. My findings of fact and reasons for deciding
that the exemption applies to the document are discussed below.
Legal professional privilege
I have applied the exemption in section 42 of the FOI Act to the document in full.
This section of the FOI Act allows the agency to exempt a document from disclosure if it is
subject to legal professional privilege (LPP).
The FOI Act does not define LPP.
Courts have held that deciding whether a communication is privileged requires a consideration
of:
whether there is a legal adviser-client relationship
whether the communication was for the purpose of giving or receiving legal advice, or
use in connection with actual or anticipated litigation
PAGE 4 OF 8
whether the advice given is independent
whether the advice given is confidential.
The document you have requested contains legal advice provided to the agency by an external
law firm for the purpose of obtaining professional legal advice on specific matters. I am satisfied
that privilege in these communications has not been waived as the document has not been
distributed further than is reasonably necessary for internal operational purposes. I am also
satisfied that the substance of the legal advice contained within the document has not been
used in any way which is inconsistent with maintaining the confidentiality of the advice.
Further, I am satisfied the agency’s ability to obtain legal advice on issues would be
substantially prejudiced if this document were to be made publicly available through FOI
processes. In my view, real harm is likely to result from release of the document as doing so
would waive privilege and disclose the particular legal provider’s approach to the interpretation,
analysis and application of legislation administered by the agency. Consequently, the agency’s
ability to obtain comprehensive legal advice in the future would be substantially prejudiced if
external law firms become aware that the agency is expressly waiving privilege in documents
by making its legal advice publicly available via FOI processes.
For the reasons set out above, I am satisfied that the document is exempt under section 42 of
the FOI Act.
Commercially valuable information
I have also applied the exemption in section 47(1)(b) of the FOI Act to the document in its
entirety.
This section of the FOI Act allows the agency to redact material from a document if its
disclosure would reveal trade secrets or destroy or diminish commercially valuable information.
Commercial value may relate, for example, to the profitability or viability of a continuing
business operation or commercial activity in which an agency or person is involved.
The document falling within scope of your request reveals the legal service provider’s
methodology and analysis approach which has been developed and refined over a number of
years, involving investment and significant time and effort, and which is informed by the legal
service provider’s knowledge and experience producing Privacy Impact Assessments (PIA)
and its privacy work for the agency.
The FOI Act does not restrict the use or further dissemination of material released in response
to an FOI request. In this case, the information of the legal service provider’s PIA methodology
and approach:
is not publicly available or widely known
has an intrinsic commercial value which a genuine arms'-length buyer would be
prepared to pay for, particularly by potential competitors (including other law firms,
consultants and consultancy firms offering similar services), and
if disclosed, would or could reasonably be expected to give potential competitors an
unfair advantage, and would undermine the legal service provider’s commercial
position.
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I am satisfied the commercial value of the legal service provider’s PIA methodology and
approach would be, or could reasonably be expected to be, destroyed or diminished if the
document was disclosed.
For the reasons set out above, I am satisfied the document is exempt under section 47(1)(b)
of the FOI Act.
Deliberative matter
Section 47C of the FOI Act provides a document is conditionally exempt if it would disclose
deliberative matter. Deliberative matter is an opinion, advice or recommendation, or a
consultation or deliberation that has taken place in the course of, or for the purposes of, the
deliberative processes of an agency. Material which is operational or purely factual information
is not deliberative matter. The deliberative exemption also does not apply to reports of scientific
or technical experts, reports of a body or organisation prescribed by the regulations, or a formal
statement of reasons.
I am satisfied the document contains deliberative matter, being advice and recommendations,
which have been prepared by the agency’s legal services provider. I am also satisfied the
document is not operational information or purely factual information, and otherwise not of a
kind specifically excluded by the FOI Act.
Accordingly, I find that the document is also conditionally exempt, in full, under section 47C(1)
of the FOI Act.
I consider the disclosure of the material may generally promote the objects of the FOI Act,
which is in the public interest. However, I also consider disclosure is likely to prejudice the
agency’s ability to obtain comprehensive legal advice, which would in turn compromise the
agency’s capacity to deliberate on the options available to mitigate privacy risks associated
with the implementation of new projects.
As such, I find that any public interest in favour of disclosing the material is outweighed by the
public interest against disclosure.
Summary of my decision
In conclusion, I have decided the document is exempt, in full, under sections 42, 47(1)(b) and
47C of the FOI Act, and disclosure of conditionally exempt material would be contrary to the
public interest for the purposes of section 11A(5) of the FOI Act.
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If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act) gives
you the right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act,
you can apply for a review of an FOI decision by:
1. an Internal Review Officer in Services Australia (the
agency); and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the agency delegate who made
the original decision will carry out the review. The Internal Review Officer will consider all
aspects of the original decision and decide whether it should change. An application for internal
review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the agency within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original
FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
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Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Services
Australia decision on your FOI request
Include your contact details
Set out your reasons for objecting to the agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act, There is
no fee for making a complaint. A complaint to the Australian Information Commissioner must
be made in writing. The Australian Information Commissioner's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be made
in person, by telephone or in writing. The Commonwealth Ombudsman's contact details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
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