Our reference: FOIREQ15/00006
Mr Peter Timmins
By email:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Timmins
Outcome of your Freedom of Information request
I refer to your request for access to information under the
Freedom of Information
Act 1982 (Cth) (the FOI Act).
Summary
I, Karen Toohey, am an officer authorised under s 23(1) of the FOI Act to make decisions in
relation to FOI requests.
On 28 January 2015, you requested access to:
documents concerning discussions with the Attorney General's Department about the
conduct of OAIC functions from 1 January 2015 including proposals put to or received from
the Department concerning funding and staffing, and any agreement or understanding
reached on these and related matters.
The decision was due to be provided to you on 27 February 2015. On 27 February 2015, you
agreed to extend the processing time under s 15AA of the FOI Act to 13 March 2015 and
also agreed to revise the scope of your FOI request to documents created on or after 30
September 2014. On 13 March 2015, you agreed to further extend the processing time
under s 15AA to 20 March 2015.
On 16 and 17 March 2015, you revised the scope of your request to exclude the names and
direct contact details of non-SES officers and the direct contact details of SES officers. On 19
March 2015, you revised the scope of your request to exclude the attachments to
documents 61 and 64 which are excel spreadsheets outlining OAIC assets. We attempted to
contact you on 19 March 2015 to advise you that we were having technical difficulties with
providing you the documents by 19 March 2015.
I have found 64 documents that fal within the scope of FOI request. I did this by liaising
with the Information Commissioner and the Privacy Commissioner who are responsible for
the conduct of the OAIC’s functions. The attached schedule of documents provides a
description of each document that fal s within the scope of your request and the access
decision for each of those documents.
Enquiries 1300 363 992 • xxx@xxxx.xxx.xx • TTY 1800 620 241 • www.oaic.gov.au
ABN 85 249 230 937
With regards to the documents you requested:
• I have decided to grant you access to edited copies of documents 1-5, 8-25, 29-34,
43-49, 50-58 and 61-64 with irrelevant matter deleted under s 22 and with exempt
matter deleted under the deliberative processes exemption (s 47C), and the
personal privacy exemption (s 47F).
• I have decided to refuse access to documents 6-7, 26-28, and 35-42 in their entirety
under s 47C.
I have set out my reasons for this decision below. The Schedule sets out each document
which fal s within the scope of your request and the relevant decision.
Material taken into account
I have taken the following material into account into making my decision:
• the content of the document that fal within the scope of your request
• your agreement to revise the scope of your request to exclude certain material
• the FOI Act (specifically ss 11A, 22, 47C, 4F)
• the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act
• submissions from the Attorney-General’s Department, Attorney-General’s Office,
Australian Public Service Commission, Australian Human Rights Commission,
Department of the House of Representatives and the Department of Prime Minister
and Cabinet.
Reasons for decision
Irrelevant material (s 22(1)(a))
Section 22 of the FOI Act allows the Office of the Australian Information Commissioner
(OAIC) to prepare an edited copy of a document so as not to disclose any information that
would reasonably be regarded as irrelevant to the FOI request.
Documents 1-5, 8-25, 30-34, 44-47, 50-57 and 59-64 contain the names and contact details
of various Australian Public Service (APS) staff. As you have revised the scope of your FOI
request to exclude such information, I have deleted the names and direct contact details of
non-SES officers and the direct telephone numbers of SES-officers under s 22(1)(a).
Documents 61 and 64 contain attachments which are excel spreadsheets listing OAIC assets.
As you have revised the scope of your request to exclude these attachments, these
attachments will not be included as part of the package of documents that wil be provided
to you.
Accordingly, I have decided to grant you access to edited copies of the documents with
deletions, as set out in the Schedule.
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Deliberative processes exemption (s 47C)
I have decided that documents 6-7, 26-28, and 35-42 are exempt in ful under s 47C and that
documents 1-3, 8-21, 29-34, 43, 48-49, 58, 61-63 contain material which is exempt under s
47C.
Section 47C of the FO I Act provides that a document is conditional y exempt if its disclosure
would disclose matter in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of an
agency..
In my view, some of the material exempted in documents 1-3, 8-21, 29-34, 43, 48-49, 58,
61-63 and all of the material exempted in documents 6-7, 26-28 and 35-42 is opinion, advice
or recommendation, prepared in the course of deliberations within the OAIC and between
the OAIC and other agencies such as the Attorney-General’s Department. In particular, the
material exempted is deliberative material prepared by or provided to the OAIC concerning
the functions of the OAIC after 1 January 2015, the functions of which are dependent on the
passage of the
Freedom of Information Amendment (New Arrangements) Bil 2014.
Public interest test
Section 11A(5) of the FOI Act sets out the public interest test which must be considered if a
document is conditional y exempt. The provision provides that the agency or Minister must
give the person access to the document if it is conditionally exempt at a particular time
unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest.
In assessing whether the disclosure of a document would be contrary to the public interest,
I must balance the factors for and against disclosing the document. The public interest test
is weighted towards providing access. Therefore, if the factors for and against releasing a
document are even, we must provide access to the document.
Of the factors favouring disclosure set out in s 11B(3), two are relevant to this FOI request:
• promoting the objects of the FOI Act and
• inform debate on a matter of public importance.
These factors must be balanced with the factors against disclosure. The FOI Act does not list
any factors weighing against disclosure. However, I have identified the following factors as
relevant:
• the opinions, recommendations and discussions set out in the documents anticipate
the passage of the
Freedom of Information (New Arrangements) Bil 2014. The Bill
has not passed through parliament.
• disclosure of the documents could reasonably be expected to impact on the ability
of the OAIC to obtain full opinions and recommendations from relevant agencies.
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In my view, the factors against disclosure are significant at this point in time and outweighs
the factors in favour of disclosure.
Accordingly, I am satisfied that the identified material within documents 1-3, 8-21, 29-34,
43, 48-49, 58, 61-63 and the entirety of documents 6-7, 26-28, and 35-42 is conditionally
exempt under s 47C of the FOI Act and that disclosure would be contrary to the public
interest.
Personal privacy exemption (s 47F)
I have decided that documents 34 and 55-57 contain material which is exempt under s 47F.
Section 4F of the FOI Act provides that a document is conditionally exempt if its disclosure
would involve the unreasonable disclosure of personal information about certain identified
individuals.
In my view, some of the material exempted in documents 34 and 55-57 contain personal
information concerning certain individuals’ personal leave. In my view, the release of such
information would be an unreasonable disclosure of personal information about those
individuals.
Public interest test
Section 11A(5) of the FOI Act sets out the public interest test which must be considered if a
document is conditional y exempt. The provision provides that the agency or Minister must
give the person access to the document if it is conditionally exempt at a particular time
unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest.
In assessing whether the disclosure of a document would be contrary to the public interest,
I must balance the factors for and against disclosing the document. The public interest test
is weighted towards providing access. Therefore, if the factors for and against releasing a
document are even, we must provide access to the document.
Of the factors favouring disclosure set out in s 11B(3), I consider one to be relevant:
promoting the objects of the FOI Act. As noted above, the FOI Act does not list any factors
weighing against disclosure. However, I consider that disclosure of such information could
reasonably be expected to prejudice the protection of an individual’s right to privacy.
In my view, the factor against disclosure outweighs the factor in favour of disclosure.
Accordingly, I am satisfied that the identified material within documents 34 and 55-57 is
conditional y exempt under s 47F of the FOI Act and that disclosure would be contrary to
the public interest.
If you disagree with my decision
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. We encourage you to seek internal review as a first
step as it may provide a more rapid resolution of your concerns.
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Internal review
You have the right to apply for an internal review of my decision under section 54A of the
Act. An internal review will be conducted, to the extent possible, by an officer of the OAIC
who was not involved in or consulted in the making of my decision. If you wish to apply for
an internal review, you must do so in writing within 30 days. There is no application fee for
internal review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should
be reviewed.
Further 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 (including 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 wil usual y not be in the interests of the
administration of the 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, it is likely that the
Information Commissioner will decide (under section 54W(b) of the Act) not to undertake
an IC review on the basis that it is desirable that my decision be considered by the AAT.
Section 57A of the 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 internal review or IC review can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you may submit your application or complaint by email to
xxxxxxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666. For further information, please call our
enquiries line on 1300 363 992.
Questions about this decision
If you wish to discuss this decision, please contact me on 1300 363 992.
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Yours sincerely
Karen Toohey
Assistant Commissioner
Dispute Resolution Branch
23 March 2015
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Document Outline
