Ministerial and Information
Management Branch
Department of Defence
CP1-6-001
PO Box 7910
CANBERRA BC ACT 2610
Tel: 02 626 62200
Fax: 02 626 62112
xxx@xxxxxxx.xxx.xx
Our reference: FOI 231/14/15
Mr Les Stockley
By email:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Stockley
NOTICE OF DECISION ON FREEDOM OF INFORMATION REQUEST
1.
I refer to your email, dated 1 February 2015, which we received on 2 February 2015,
in which you requested access, under the
Freedom of Information Act 1982 (FOI Act), to:
“…a copy of the charge summary for the assault committed by the then Cpl Jacqui
Lambie, now senator of Australia.”
Background
2.
On 20 February 2015, our office informed you that the decision maker had determined
that there was a requirement to consult with a third party under section 27A [Consultation –
documents affecting personal privacy] of the FOI Act, before finalising the decision. As such,
in accordance with section 15(6) [extension of processing period to comply with requirement
of section 26A, 27 or 27A] of the FOI Act, the statutory timeframe was amended to
6 April 2015.
3.
I note that the above mentioned due date was a public holiday. In accordance with the FOI
Guidelines issued by the Australian Information Commissioner, if the last day for notifying a
decision falls on a Saturday, Sunday or a public holiday, the timeframe will expire on the first day
following which is none of those days. Noting the due date was a gazetted pubic holiday in the
ACT (from where all FOI requests are administered), the due date for you to receive a
response is today [7 April 2015].
4.
The purpose of this letter is to provide you with the decision relating to the document
that is the subject of your request.
FOI decision maker
5.
Colonel MRC Kennedy, Director Personnel Policy – Army was the authorised officer
pursuant to section 23 of the FOI Act to make a decision on this FOI request.
Defending Australia and its National Interests
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Documents identified
6.
Colonel Kennedy identified one document, being the ‘Summary Proceedings Report’
as falling within the terms of your request.
Decision
7.
Colonel Kennedy decided to partially release the identified document with deletions in
accordance with section 22 of the FOI Act [Access to edited copies with exempt or irrelevant
matter deleted]. Colonel Kennedy deemed the deleted material exempt under sections 47F
[public interest conditional exemptions - personal information] and 47E(d) [public interest
conditional exemptions - certain operations of agencies] of the Act.
8.
Colonel Kennedy’s reasons for this decision are outlined below.
Material taken into account
9.
Colonel Kennedy had regard to:
a.
the terms of the request
b.
the content of the documents in issue
c.
relevant provisions in the FOI Act
d.
the Guidelines issued by the Office of the Australian Information
Commissioner under section 93A of the FOI Act
e.
third party response to consultation.
Reasons for Decision
Personal information of third parties
10.
Colonel Kennedy noted that the identified document contained personal information
of individuals other than you. It is appropriate to consider whether this information is exempt
from release under the FOI Act.
As part of the decision making process Colonel Kennedy
sought third party consultation. He considered the results of the third party consultation when
making his decision.
Section 47F of the FOI Act
11.
Colonel Kennedy found that the document contains information relating to then
Corporal Lambie’s military charge of
‘Assault in a Public Place’. Colonel Kennedy
considered this information to be widely known and readily available from publicly available
resources. Senator Lambie has made this information known and spoken publicly about the
incident on a number of occasions. As such, Colonel Kennedy considered that it is reasonable
to release this information.
12.
Colonel Kennedy also found that the document contained personal information,
including witness names, ranks and PMKeyS (personnel identification) numbers of other
people. He considered the disclosure of this material would constitute an unreasonable
disclosure.
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13.
The guidelines issued by the Australian Information Commissioner note that ‘the
personal privacy exemption is designed to prevent ‘unreasonable’ invasion of third parties
privacy’. In accordance with subsection 47F(2), in determining whether the disclosure of this
information would involve the unreasonable disclosure of personal information, Colonel
Kennedy had regard to:
a.
the extent to which the information is well known
b.
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
c.
the availability of the information from publicly accessible sources
d.
any other matters that the agency considers relevant.
14.
Against those criteria, Colonel Kennedy found:
a.
the specific personal information listed is not well known
b.
the information is not readily available from publicly accessible
sources.
15.
With reference to the assessment above, Colonel Kennedy considered that the release
of this information would be an unreasonable disclosure of personal information and
conditionally exempt under section 47F(1) of the FOI Act.
Public interest considerations – section 47F
16.
Section 11A(5) of the FOI Act requires Defence to allow access to a conditionally
exempt document unless access to the document would be contrary to the public interest.
17.
When assessing whether disclosure is, on balance, contrary to the public interest,
Colonel Kennedy considered the guidelines provided by the Australian Information
Commissioner, together with a range of factors that favour access to a document as set out in
section 11B(3) [Public interest exemptions – factors] of the FOI Act.
18.
Subsection 11B(3) states factors favouring access to the document in the public
interest include whether access to the document would do any of the following:
a.
promote the objects of this Act
b.
inform debate on a matter of public importance
c.
promote the effective oversight of public expenditure
d.
allow a person to access his or her own personal information.
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19.
In considering the above points Colonel Kennedy found that disclosure of the
requested document may promote some objects of the FOI Act, as information held by the
Government is a national resource. However, disclosure of the requested document would
not increase public participation in Government processes, nor would it increase the scrutiny
or discussion of Government activities. While Colonel Kennedy noted that the release of the
requested material may be of interest to you, it would not you access to your own personal
information.
20.
In coming to this decision Colonel Kennedy also took into account the guidelines
which discuss other factors considered to be relevant, in particular he considered paragraph
6.132 which states
‘whether it would shed light on the workings of government. Further, at
6.133 the guidelines state
‘…if the information disclosure were of no demonstrable relevance
to the affairs of government and was likely to do no more than excite or satisfy the curiosity of
people about the person whose personal affairs were disclosed… disclosure would be
unreasonable.’
21.
Colonel Kennedy further considered subsection 11B(4) [public interest exemptions –
irrelevant factors] of the FOI Act which lists factors which must not be taken into account in
deciding whether access would, on balance, be contrary to the public interest. None of the
factors he took into account were listed under subsection 11B(4) of the FOI Act.
22.
After assessing all of these factors, Colonel Kennedy decided that the harm that could
arise from disclosure of the personal information far outweighs any favourable public interest
factors that would be gained from the release and he deemed the information exempt under
section 47F of the FOI Act.
Section 47E(d) of the FOI Act
23.
A document is conditionally exempt under section 47E(d) if its disclosure would have
a substantial adverse effect on the proper and efficient conduct of the operations of Defence.
The document contains the names, signatures and PMKeyS numbers of Defence personnel
that were involved in the prosecution of the offence.
24.
Colonel Kennedy noted that the ability of Defence members to undertake a military
prosecution is an important function to the command of the Army. Discipline within Defence
is paramount in maintaining the safety of our members. He also noted that participating in
military justice proceedings is a secondary duty of Defence members. Given the named
party’s standing in the community, there is a possibility that releasing the personal
information of other Defence members involved in the proceedings could lead to unsolicited
contact including undue media attention. This could directly affect the willingness of Defence
members to participate in proceedings in the future.
25.
Accordingly, Colonel Kennedy considered this material to be conditionally exempt
under section 47E(d) of the FOI Act.
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Public interest considerations – section 47E
26.
Colonel Kennedy
found that the identified information is conditionally exempt under
section 47E of the FOI Act. Section 11A (5) provides that, if a document is conditionally
exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest’.
27.
Colonel Kennedy considered the factors favouring disclosure set out in section 11B(3)
of the FOI Act. The relevant factors being that disclosure may promote some of the objects of
the FOI Act, as information held by the Government is a national resource and it would not
allow access to your own personal information. Arising from these factors, Colonel Kennedy
considered the importance of transparency in investigations of the work-related conduct of
Government employees.
28.
Colonel Kennedy further had regard to paragraph 6.140 of the Guidelines, which
outlines that careful consideration should be given to the release of information that does not
relate to a public servant’s usual duties and responsibilities. Colonel Kennedy considered that
members undertaking duties such as Prosecuting Officer and Defending Officer are not the
usual, everyday duties and responsibilities of these members.
29.
Subsection 11B(4) [irrelevant factors] of the FOI Act lists factors which must not be
taken into account in deciding whether access would, on balance, be contrary to the public
interest. Colonel Kennedy stated that he did not take into account these factors when making
his decision.
30.
Colonel Kennedy found that the public interest factors against disclosure outweigh the
factors for disclosure of the identified personal information due to the impact on the
operations of this Agency and deemed the information exempt under section 47E (d) of the
FOI Act.
31.
A copy of the document in the form approved for release is at Enclosure 1.
Rights of review
32.
The FOI Act provides for rights of review of decisions. A copy of the fact sheet,
“Freedom of Information – Your Review Rights”, setting out your rights of review is at
Enclosure 2.
Further information
33.
The FOI Act ma
y be accessed at: http://www.comlaw.gov.au/Details/C2015C00013.
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34.
All departmental action on your request is now complete. Should you have any
questions in regard to this matter please contact this office.
Yours sincerely
Theresa Stinson
Assistant Director - Media Case Management
Freedom of Information
7 April 2015
Enclosures:
1.
Document in the form for release
2.
Fact Sheet: Freedom of Information – Your Review Rights
Document Outline