If not delivered return to PO Box 7820 Canberra BC ACT 2610
13 September 2022
Our reference: LEX 69186
Mr Justin Warren
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Warren
Freedom of Information Request – Internal Review Decision
I refer to your correspondence, received by Services Australia (the Agency) on
14 August 2022, seeking an internal review of the decision made by the Agency on
11 August 2022 in relation to your request for access to documents under the
Freedom of
Information Act 1982 (FOI Act).
Background
On 11 April 2022, you requested access under the FOI Act to the following documents:
Emails relating to the fol owing 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).
On 11 August 2022, the Agency decided to grant you part access to four documents with some
of the content removed.
Summary of my internal review decision
I am authorised to make decisions under s 23(1) of the FOI Act, including internal review
decisions under s 54C of the FOI Act.
Consistent with the requirements of s 54C(2) of the FOI Act, I have made a fresh decision.
Having reviewed the documents in question, I am satisfied that parts of each of the documents
falling within the scope of your request (Documents 1 – 4) are exempt under the FOI Act.
Accordingly, I have decided to grant you
part access to each of these four documents.
Please refer to
Attachment A for further information regarding the reasons for my decision.
PAGE 1 OF 13
How we wil send your documents to you
The documents are attached.
I note the following pages have no content once exempt and out of scope information has been
redacted and therefore those pages are blank and not provided:
• 2 – 4 (inclusive)
• 9
• 19
• 23 – 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)
You can ask for a review of our decision
If you disagree with any part of the decision, you can ask for a review by the Australian
Information Commissioner.
See
Attachment B for more information about how to request a review.
Further assistance
If you have any questions, please email:
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx
Yours sincerely
Saskia
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
PAGE 2 OF 13
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE
WARREN, Justin - LEX 69186
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
s 47F(1)
on the operations of the Agency deleted under s 47E(d).
s 22
Third party personal information deleted under s 47F(1).
Out of scope material deleted under s 22.
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
s 47F(1)
on the operations of the Agency deleted under s 47E(d).
s 22
Third party personal information deleted under s 47F(1).
Out of scope material deleted under s 22.
PAGE 3 OF 13
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).
s 22
Third party personal information deleted under s 47F(1).
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).
s22
Third party personal information deleted under s 47F(1).
Out of scope material deleted under s 22.
PAGE 4 OF 13
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
On 11 April 2022, you requested access under the FOI Act to the following documents:
Emails relating to the fol owing 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).
On 11 August 2022, the Agency advised you it had decided to grant you part access to four
documents with some of the content removed.
On 14 August 2022, you requested an internal review of the original decision, providing written
submissions in which you contended:
s 22 claim over staff details
A great many identifying details have been withheld without an exemption claim being
made. At no time have I indicated that I consider such details to be irrelevant. I have
consistently maintained in other dealings with the Agency that I consider all such details
to be within scope. Absent my agreement on specific instances, I consider all staff names
in the documents are within scope and are not irrelevant to my request.
As the FOI Guidelines relevantly explain, at [3.54]:
There have been instances of agencies using s 22 to delete the names of government
officials below the Senior Executive Service (SES) rank on the basis that those names are
irrelevant to the scope of an FOI request. There is no apparent logical basis for treating
the names of SES officials as being within the scope of a request, but other officials as
being irrelevant to the request. Without further explanation as to why the names of
government officials are irrelevant to the scope of an applicant’s request, it is unlikely that
the application of s 22 is appropriately justified.
If the department believes it can provide sufficient evidence that staff details should be
exempted from disclosure, it should do so. Otherwise, the details should be disclosed.
s 47C deliberative material
Opinions about me as a person constitute personal information and are not exempt from
disclosure as they are “content that is merely descriptive” and thus not deliberative matter.
The frankness and candour argument against disclosure has been dealt with and
dismissed on many occasions and is specifically discussed in the FOI Guidelines at [6.79]-
[6.85]. The decision maker has not provided evidence that any of the multiple situations
PAGE 5 OF 13
here are special nor specific. It is unlikely that all of the many s 47C exemptions claimed
meet the standard required.
s 47E(d) substantial adverse effect on operations The claim that publication of “statistics
and discretionary decision making process[sic] and procedural information” 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” is a bold one. Insufficient evidence or argument has been provided that this
adverse outcome could reasonably be expected.
If the mere knowledge of the process and procedure for making decisions would enable
customers to circumvent them, they are not very robust. Hiding the department’s poorly
designed processes from public scrutiny may be in the department’s narrow, private
interest, but it is not in the public interest. It is in the public interest that such feeble
processes and procedures should be examined so that they can be strengthened.
I note you did not make any submissions in relation to the application of ss 42 (legal
professional privilege) and 47F(1) (personal information) of the FOI Act in the original decision.
What I took into account
In reaching my decision, I took into account:
• your original FOI request dated 11 April 2022
• your internal review request dated 14 August 2022
• the material falling within the scope of your request
• whether the release of material is in the public interest
• consultations with Agency officers about the nature of the documents and the Agency's
operating environment and functions
• guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act (Guidelines), and
• the FOI Act.
Reasons for my decisions
I am authorised to make decisions under s 23(1) of the FOI Act, including internal review
decisions under s 54C of the FOI Act.
I have decided parts of Documents 1 – 4 are exempt under s 42 of the FOI Act and conditionally
exempt under ss 47C, 47E(d) and 47F(1) of the FOI Act and disclosure of this material would,
on balance, be contrary to the public interest.
My findings of fact and reasons for deciding these exemptions apply to that material are
discussed below.
Legal professional privilege
In your internal review request, you did not make any submissions regarding the Agency’s
decision to exempt parts of the documents under s 42 of the FOI Act. Notwithstanding this, I
have considered the applicability of this exemption to the documents sought in making this
decision.
PAGE 6 OF 13
Relevantly, the documents sought contain correspondence between the Agency and internal
lawyers (from a distinct Legal Service Division) for the purposes of obtaining professional legal
advice on specific matters. I am satisfied privilege in these communications has not been
waived and the substance of the legal advice contained within the documents has not been
used in any way that is inconsistent with the maintenance of the confidentiality of the advice.
For the reasons set out above, I am satisfied parts of the documents sought are exempt under
s 42 of the FOI Act.
Deliberative matter
In your internal review request, you submit ed the Agency had wrongly concluded the
conditional exemption in s 47C of the FOI Act applied to parts of the documents sought. In
particular, you submitted:
• opinions about you as a person constitute personal information that is merely
descriptive and therefore not deliberative matter, and
• the frankness and candour argument against disclosure has been dealt with and
dismissed on many occasions and is specifically discussed in the Guidelines.
I have considered your submissions and determined the documents sought contain
deliberative matter as defined in s 47C(1) of the FOI Act. Specifically, parts of the documents
sought comprise the exchange and ultimate evaluation of opinions, advice and
recommendations between various employees of the Agency (including the Freedom of
Information Team, relevant line areas, subject matter experts and internal lawyers) in relation
to the various historical FOI requests identified in your current FOI request.
Moreover, I am satisfied the information contained in the relevant parts of the documents
sought is not operational information or purely factual information, and is not otherwise of a
kind specifically excluded by the FOI Act.
While I accept parts of the documents contain opinions, I do not accept these opinions could
be described as merely descriptive opinions about you as a person. Instead, these opinions
relate to the application of the FOI Act to your historical FOI requests.
For the reasons set out above, I am satisfied parts of the documents sought are conditionally
exempt under s 47C 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 disclosing the conditionally exempt material would promote the objects of the FOI
Act and facilitate access to government information and processes generally, both of which
are in the public interest. However, I also consider disclosing this material would likely inhibit
the full and frank exchange of views between Agency officers in processing requests under
the FOI Act, which would, in turn, deny Agency decision-makers a necessary understanding
of documents that are subject to FOI requests and diminish their capacity to correctly and
appropriately perform their duties under the FOI Act.
You submitted the frankness and candour argument against disclosure had been dealt with
and dismissed on many occasions and is specifically discussed in the Guidelines at [6.79]-
[6.85]. I accept there have been findings (such as in
Rovere and Secretary, Department of
PAGE 7 OF 13
Education and Training [2015] AATA 462) to the effect that a frankness and candour claim
may not be a factor against disclosure in its own right. However, in light of those findings, the
Information Commissioner stated at [6.82] of the Guidelines:
frankness and candour in relation to the s 47C conditional exemption may have some
application as one public interest factor against disclosure in combination with other
factors, and possibly as the sole factor where the public interest is clearly, heavily weighted
against disclosure of a document of a minister, or a document that would affect the
effective and efficient functioning of government.
Relevantly, I consider the proper administration of the FOI Act is an important part of the
effective and efficient functioning of government. You may recall that Deputy President Forgie
made the following comments about the administration of the FOI Act in
Chief Executive
Officer, Services Australia and Warren (Freedom of Information) [2020] AATA 4557:
The whole of the FOI Act is a finely tuned balance between two interests. In one side of
the balance is the facilitation and promotion of access to a national resource that is
information held by Government, which enables increased public participation in
Government processes and increased scrutiny, discussion, comment and review of the
Government’s activities. In the other is the protection of the national interest, the essential
operation of government and the privacy of those who deal with government.
Achieving the required fine balance between the two competing interests of the FOI Act
necessitates a frank exchange of views between Agency officers. The Agency decision-maker
must then consider all views to establish an understanding of the content of the documents in
order to apply (if necessary) the relevant provisions of the FOI Act.
In this instance, I consider the disclosure of the material conditionally exempt under s 47C of
the FOI Act would meaningfully inhibit the exchange of views between Agency officers,
depriving FOI decision-makers a necessary understanding of documents and diminishing their
capacity to correctly and appropriately perform authorised duties under the FOI Act. I also
consider this would significantly affect the effective and efficient functioning of government as
contemplated by the Guidelines.
Having weighed the factors in favour of disclosure against the factors against disclosure, I am
satisfied the public interest in disclosing the material is outweighed by the public interest factors
against disclosure.
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.
Operations of the Agency
In your internal review request, you submit ed the Agency had wrongly concluded the
conditional exemption in s 47E(d) of the FOI Act applied to parts of the documents sought. In
particular, you submitted:
• you are not satisfied that the publication of statistics and discretionary decision making
processes and procedural information could reasonably be expected to enable
customers to circumvent established processes for the purpose of obtaining a material
benefit, and
• ‘hiding the [Agency’s] poorly designed processes from public scrutiny may be in the
[Agency’s] narrow, private interest, but it is not in the public interest.’
PAGE 8 OF 13
I have considered your submissions and the documents in question. I have determined the
documents sought contain material that, if disclosed, could reasonably be expected to have a
substantial adverse ef ect on the proper and efficient conduct of the operations of the Agency
as contemplated by s 47E(d) of the FOI Act. This material includes statistics, internal positional
mailboxes and information regarding decision-making processes.
I acknowledge and agree with your submission to the effect the disclosure of some (and
perhaps most) statistics and information regarding decision-making processes is unlikely to
have a substantial adverse effect on the proper and efficient conduct of the operations of the
Agency. Consistent with this, there are many parts of the documents sought which could be
described as statistics or information regarding decision-making processes which I do not
consider to be conditional y exempt pursuant to s 47E(d) of the FOI Act.
However, there are other, more limited, parts of the documents which fall within those broad
categories I consider would have a substantial adverse effect on the proper and ef icient
conduct of the operations of the Agency if disclosed. These parts of the documents largely
relate to discrete aspects of administrative and decision-making processes which are
necessary to facilitate the efficient and effective exercise of the Agency’s functions but which,
if disclosed, would be vulnerable to circumvention or manipulation.
Further, 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.
Finally, while I have no reason to believe you would misuse any conditionally exempt material
in the ways outlined above, 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.
For the reasons set out above, I am satisfied that parts of the documents sought are
conditionally exempt under s 47E(d) of the FOI Act.
Public interest considerations
As set out above, 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 disclosing the conditionally exempt material would promote the objects of the
FOI Act and facilitate access to government information and processes generally, both of
which are in the public interest. However, I also consider disclosing this material would likely
prejudice discrete aspects of the Agency’s administrative and decision-making processes,
which would have a significant adverse effect on the operations of the Agency and, as a
consequence, the public more broadly.
Contrary to your submissions, I do not consider this is about ‘hiding’ poorly designed processes
to protect the Agency’s own interests. Instead, this conditionally exempt material relates to
discrete aspects of administrative and decision-making processes which are necessary to
ensure the efficient and effective exercise of the Agency’s functions but which, if disclosed
would be vulnerable to circumvention or manipulation. The effect of such circumvention or
manipulation would be to prejudice the Agency’s ability to effectively, efficiently and accurately
deliver services to the Australian public.
PAGE 9 OF 13
Having weighed the factors in favour of disclosure against the factors against disclosure, I am
satisfied the public interest in disclosing the material is outweighed by the public interest factors
against disclosure.
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.
Personal information
In your internal review request, you did not make any submissions to the effect the Agency
had wrongly concluded the conditional exemption in s 47F(1) of the FOI Act applied to parts of
the documents sought. Notwithstanding this, I have considered the applicability of this
exemption to the documents sought in making this decision.
I also note that in your internal review request, you indicated you considered al staff details in
the documents to be within scope and were not irrelevant to your FOI request. In light of this
comment, I accept the staff details contained in the documents sought are not irrelevant for
the purposes of s 22(1)(a)(i ) of the FOI Act.
However, following a review of the documents sought, I have determined these staff details,
together with other peoples’ names and FOI request details that appear in documents 3 and
4, comprise personal information about people other than yourself.
I also consider disclosure of this personal information would be unreasonable because:
• you do not have the consent from these individuals to the release of their personal
information
• the information is private and not freely available in full or in part from publicly
accessible sources
• the identity of the individuals concerned are readily apparent or could be easily
ascertained, and
• in relation to the staff details, revealing this information is likely to pose a real and
unacceptable risk of rendering staff vulnerable to threats and unauthorised contact from
members of the public, which could jeopardise their physical safety and compromise
their mental health.
For the reasons set out above, I am satisfied parts of the documents sought are conditionally
exempt under s 47F(1) of the FOI Act.
Public interest considerations
As set out above, 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 disclosing the conditionally exempt material would promote the objects of the FOI
Act and facilitate access to government information and processes generally, both of which
are in the public interest. However, I also consider disclosing this material would prejudice the
individuals’ right to privacy, adversely affect the individuals’ interests and personal safety, and
prejudice the Agency’s ability to attract and retain staff.
As such, I find the public interest in disclosing the material is outweighed by the public interest
against disclosure.
PAGE 10 OF 13
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.
Summary of my decision
In conclusion, I have decided to grant you
part access to four documents.
PAGE 11 OF 13
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 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 internal review decision
If you stil believe a decision is incorrect, the FOI Act gives you the right to apply for a review
of the internal review decision. Under s 54M of the FOI Act, you can apply for a review of an
FOI decision by the Australian Information Commissioner. There are no fees for this review.
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
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
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
PAGE 12 OF 13
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 13 OF 13
Document Outline
