PO Box 7820 Canberra BC ACT 2610
11 August 2022
Our reference: LEX 67435
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, dated and 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:
Emails relating to the following FOI requests (excluding attachments, correspondence
from external third parties, documents you have already received and correspondence
to or from the AAT and/or OAIC relating to your FOI requests):
- 2017, https:/ www.righttoknow.org.au/request/copy_of_public_interest_certific
(Your reference: LEX 27960)
- 2018, https:/ www.righttoknow.org.au/request/decision_making_criteria_for_pot
(Your reference: LEX 34896)
- 2019,
https:/ www.righttoknow.org.au/request/copy_of_privacy_impact_assessmen
(Your reference: LEX 46187)
- 2020, https:/ www.righttoknow.org.au/request/copy_of_executive_minute_to_the
(Your reference: LEX 55424).
My decision
The Agency holds 4 documents (totalling 171 pages) that relate to your request.
I have decided to grant you
part access to 4 documents with some of the content removed.
I have decided that parts of documents, that you have requested are exempt under the FOI
Act, including:
• material subject to legal professional privilege (section 42)
• deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C)
• operational information, the disclosure of which would, or could reasonably be
expected to have a substantial adverse effect on the proper and efficient conduct of the
operations of the Agency, and
PAGE 1 OF 12
• personal information of third parties, the disclosure of which would be unreasonable
and contrary to the public interest (section 47F(1) conditional exemption).
Please see the schedule at
Attachment A to this letter for a detailed list of the documents and
the reasons for my decision, including the relevant sections of the FOI Act.
How we wil send your documents to you
The documents are attached.
Please note that pages:
• 3 – 4 (inclusive)
• 9
• 19
• 22 – 27 (inclusive)
• 30 – 33 (inclusive)
• 36 – 40 (inclusive)
• 42 – 55 (inclusive)
• 58 – 63 (inclusive)
• 66 – 70 (inclusive)
• 72 – 138 (inclusive)
• 142 – 150 (inclusive)
• 152 – 156 (inclusive), and
• 158 – 171(inclusive)
have no content once exempt and out of scope information has been redacted and therefore
those pages are blank and not provided.
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.
Further assistance
If you have any questions please ema
il xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Hannah
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
PAGE 2 OF 12
PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE
WARREN, Justin - LEX 67435
Doc
Pages
Date
Description
Decision
FOI Act
Comments
No.
Exemption
1. 1- 17
Various
Emails relating to LEX
Release in part
s 42
Legally privileged information deleted under s 42.
27960
s 47C
Deliberative material deleted under s 47C.
s 47E(d)
Information which would have a substantial adverse effect
on the operations of the Agency deleted under s 47E(d).
Staff details deleted under s 22 (out of scope).
2. 18 -30
Various
Emails relating to LEX
Release in part
s 42
Legally privileged information deleted under s 42.
34896
s 47C
Deliberative material deleted under s 47C.
s 47E(d)
Information which would have a substantial adverse effect
on the operations of the Agency deleted under s 47E(d).
Staff details deleted under s 22 (out of scope).
PAGE 3 OF 12
Doc
Pages
Date
Description
Decision
FOI Act
Comments
No.
Exemption
3. 31 -141
Various
Emails relating to LEX
Release in part
s 42
Legally privileged information deleted under s 42.
46187
s 47C
Deliberative material deleted under s 47C.
s 47E(d)
Information which would have a substantial adverse effect
s 47F(1)
on the operations of the Agency deleted under s 47E(d).
Third party personal information deleted under s 47F(1).
Staff details deleted under s 22 (out of scope).
Out of scope material deleted under s 22.
4.
142 -171 Various
Emails relating to LEX
Release in part
s 42
Legally privileged information deleted under s 42.
55424
s 47C
Deliberative material deleted under s 47C.
s 47E(d)
Information which would have a substantial adverse effect
s 47F(1)
on the operations of the Agency deleted under s 47E(d).
Third party personal information deleted under s 47F(1).
Staff details deleted under s 22 (out of scope).
Out of scope material deleted under s 22.
PAGE 4 OF 12
PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
On 11 April 2022, you requested:
[A] copy of all emails sent or received by Services Australia—and as it was previously
known the Department of Human Services—regarding Freedom of Information
requests filed by myself, Justin Warren using the RightToKnow service.
This wil include all email correspondence internally between staff members (or
contractors) of the department, and emails sent to or received from external parties.
Include in the scope all attachments to emails.
Include in the scope all FOI requests made prior to 10 April 2022…
On 24 May 2022, I spoke with you about the scope of your request. Following this conversation,
on 27 May 2022 you revised your request.
Your revised request was:
Emails relating to the following FOI requests (excluding attachments, correspondence
from external third parties, documents you have already received and correspondence
to or from the AAT and/or OAIC relating to your FOI requests):
- 2017, https:/ www.righttoknow.org.au/request/copy_of_public_interest_certific
(Your reference: LEX 27960)
- 2018, https:/ www.righttoknow.org.au/request/decision_making_criteria_for_pot
(Your reference: LEX 34896)
- 2019,
https://www.righttoknow.org.au/request/copy_of_privacy_impact_assessmen
(Your reference: LEX 46187)
- 2020, https:/ www.righttoknow.org.au/request/copy_of_executive_minute_to_the
(Your reference: LEX 55424).
Staff details
Staff details have been redacted in accordance with section 22(1) of the FOI Act.
What I took into account
In reaching my decision I took into account:
• your original request dated 11 April 2022
• your revised request on 27 May 2022
• other discussions and correspondence with you regarding the scope of your request
• documents falling within the scope of your request
• whether the release of material is in the public interest
PAGE 5 OF 12
• 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 decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that parts of documents you requested are exempt under the FOI Act. My
findings of fact and reasons for deciding the exemptions apply to those documents are
discussed below.
Legal professional privilege
I have applied the exemption in section 42 of the FOI Act to parts of the documents.
This section of the FOI Act allows the Agency to redact material from a document if it is subject
to legal professional privilege (LPP).
The FOI Act does not define LPP, but instead consideration has been given to the common
law concepts of LPP.
At common law, courts have held that deciding whether a communication is privileged requires
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
• whether the advice given is independent, and
• whether the advice given is confidential.
The documents contain correspondence between Agency employees and government lawyers
for the purposes of obtaining legal advice on specific matters, informing decision-making and
action in the relevant legal context, and disclosure would reveal how the advice was relied
upon. I am satisfied the lawyer was acting in their capacity as a professional legal adviser, the
communications relate to activities falling within the lawyer’s professional functions, and the
agency’s Legal Services Division is separate from the agency’s business areas, affording the
lawyers the necessary independence to support giving legal advice. In each case the person
providing the legal advice was a legal practitioner. Therefore, the advice was provided by a
professional legal adviser acting with the required level of independence to the client.
I am satisfied that privilege has not been waived as the documents have not been distributed
further than is reasonably necessary for the purpose of providing or obtaining legal services. I
am also satisfied that the substance of the legal advice contained within the documents has
not been used in any way which is inconsistent with the maintenance of the confidentiality of
the advice.
Further, I am satisfied the Agency’s ability to obtain legal advice on issues would be
substantially prejudiced if these documents were to be made publicly available through FOI
PAGE 6 OF 12
processes. In my view, real harm is likely to result from release of the documents as doing so
would waive privilege and disclose the approach to the interpretation, analysis and application
of legislation administered by the Agency. Consequently, the Agency’s ability to obtain
comprehensive and candid internal legal advice in the future would be substantially prejudiced
if the Agency waives privilege in documents by making its legal advice publicly available via
FOI processes.
For the reasons set out above, I am satisfied the documents are exempt under section 42 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 documents contain deliberative matter, being advice and recommendations,
which have been prepared by Agency subject matter experts relevant to your historical FOI
requests and internal legal counsel. Furthermore, I am satisfied the material to which the
conditional exemption has been applied is not operational information, nor could it be classified
as such, nor does it constitute purely factual information, and to the extent it may, it is
intertwined with the deliberative material and is not reasonably practicable to separate.
There is no exemption, as outlined in subsection 47C(3), that applies to this material, as:
• the documents are not a report on scientific or technical matters
• the Agency is not a body prescribed by the regulations, and
• the material is not a record of formal statement of the reasons for a final decision given
in the exercise of a power or of an adjudicative function.
Accordingly, I find that the identified material in the documents is deliberative matter of the type
captured under section 47C of the FOI Act and is conditionally exempt, in part, under the Act.
Public interest considerations
Access to conditionally exempt material must be given unless I am satisfied it would not be in
the public interest to do so.
I consider the disclosure of the material would generally promote the objects of the FOI Act
and facilitate access to government information and processes generally which is in the public
interest. However, I also consider disclosure could reasonably be expected to inhibit frankness
and candour between Agency officers during the processing of FOI requests and prejudice the
Agency’s ability to obtain legal advice or consider matters comprehensively in the future.
Specifically, disclosure of the section 47C material wil destroy or diminish the Agency’s
methodology and approach to the management of FOI requests and ultimately impede the full
and frank disclosure between internal lawyers or subject matter experts and FOI decision
makers. Ultimately this would deny the FOI decision maker the necessary understanding of
the matter they are considering, diminishing their capacity to correctly and appropriately
undertake their obligations and duties in line with the FOI Act.
PAGE 7 OF 12
As such, I find the public interest in disclosing the material to which this conditional exemption
has been applied is heavily outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors section out in section 11B(4) of the
FOI Act in making this decision.
I have deleted the exempt information in the documents and released the remaining material
in accordance with section 22(1) of the FOI Act.
Operations of the Agency
I have applied the exemption in section 47E(d) of the Act to parts of the documents. The
information I have found to be conditionally exempt are the Agency’s internal positional
mailboxes, statistics and information relating to Agency discretionary decision-making
processes or procedures.
I note I have not applied this exemption to any positional electronic mailboxes that are publicly
available.
The Agency’s purpose is to provide high-quality government services and payments to
Australians. It is a large, public facing, government organisation with many points of contact
designed to facilitate its purpose. The Agency has established channels of communication for
customers and members of the public, which have been put in place to ensure the effective
management of the significant volume of communication received. Such channels include
dedicated and externally published positional mailboxes of different business areas within the
Agency. These have been established to ensure correspondence is directed to the correct
area and actioned accordingly.
If internal positional mailbox details were to be made publicly available, correspondence
received and directed could be mishandled, lost, duplicated or double-handled on account of
it not being directed to the most appropriate teams through the publicly available
communication channels.
Further, the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act. I note any member of the public may use these internal
positional electronic mailboxes to communicate with the Agency. Noting the Agency’s
interactions with the public number in the hundreds of mil ions, diverting people from correct
channels cannot be appropriately categorised as insubstantial or nominal.
In addition, I consider that release of statistics and discretionary decision making process and
procedural information to you, which is not publicly available, would negatively affect the
conduct of the operations of the Agency because it would enable customers to circumvent
established processes for the purpose of obtaining a material benefit.
This in turn creates a significant risk that the Agency would be unable to correctly service
members of the public and compromise the Agency’s ability to deliver government payments
accurately.
While I have no reason to believe you would misuse the material in question if it were disclosed
to you, the FOI Act does not control or restrict use or dissemination of the information once
released in response to an FOI request, so I must consider actions any member of the public
might take once the information enters the public domain and is available to the world at large.
PAGE 8 OF 12
For the reasons outlined above, I am satisfied the positional mailboxes, statistics and
discretionary decision-making processes and procedures are conditionally exempt under
section 47E(d) of the FOI Act.
Public interest considerations
Access to conditionally exempt material must be given unless I am satisfied it would not be in
the public interest to do so.
I consider the disclosure of the material would generally promote the objects of the FOI Act
and facilitate access to government information and processes generally which is in the public
interest. However, I also consider the disclosure of this information would prejudice the
Agency’s ability to effectively and efficiently deliver government payments and manage contact
with the public, and increase the risk of misdirected communications received by the Agency
from members of the public, impairing the timely delivery of services and responses to
enquires.
As such, I have decided in this instance, the public interest in disclosing the information in the
above-mentioned documents is outweighed by the public interest against disclosure.
For the reasons set out above, I am satisfied parts of the documents, as identified in the
Schedule, are conditional y exempt under section 47E(d) of the FOI Act.
Unreasonable disclosure of personal information
I have applied the exemption in section 47F(1) of the FOI Act to parts of documents 3 and 4
as identified in the Schedule.
This section of the FOI Act allows the Agency to redact material from a document if its
disclosure would result in the unreasonable disclosure of personal information about another
person.
Personal information is information or an opinion about an identified individual, or an individual
who is reasonably identifiable. It can include a person's name, address and telephone number.
I am satisfied documents 3 and 4 contain personal information of other people, namely their
names and individual FOI request details.
I am satisfied that the disclosure of the third party personal information would be unreasonable
as you do not have the consent of these individuals for the release of their personal information,
the information is private and not available publicly, and the identity of the individuals
concerned is readily apparent.
Public interest considerations
Access to conditionally exempt material must be given unless I am satisfied it would not be in
the public interest to do so.
I consider the disclosure of the material would generally promote the objects of the FOI Act,
which is in the public interest. However, I also consider disclosure would prejudice the
individuals’ right to privacy, adversely affect or harm the individuals’ interests and prejudice the
Agency’s ability to effectively administer FOI obligations.
As such, I find the public interest in disclosing the material is outweighed by the public interest
against disclosure.
PAGE 9 OF 12
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
PAGE 10 OF 12
PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a ful 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 wil 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 stil 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 A
gency); and/or
2. the Australian Information Commissioner.
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 wil carry out the review. The Internal Review Officer wil 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: You do not need to fil 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 wil have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
PAGE 11 OF 12
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.
PAGE 12 OF 12
Document Outline
