Attachment B – Reasons: Freedom of Information
Request No. LEX2846 (Part 1)
Authority
As a Senior Government Lawyer, Legal and Procurement Branch, I am an authorised decision-maker
under section 23 of the FOI Act.
Retrieval process To identify documents for your request, I arranged for relevant staff likely to be able identify
documents to undertake a comprehensive search of the relevant electronic holdings used by the
AEC. Relevant staff were interrogated on their findings, and confirmed comprehensive searches
were undertaken and that further documents were unlikely to be within scope.
I also organised for the AEC’s internal IT file management system team to produce a document that
contained the information you sought under Category D.
Relevant Documents
With regard to the Relevant Documents identified in At achment A, I have decided:
a) to grant access in full to Document Numbers 1, 2, 3, 4 & 5.
b) to grant access to an edited copy of Document 6 from which exempt matter has been deleted
under sections 47F and 42 of the FOI Act.
Material taken into account I have taken the following material into account in making my decision:
a) the content of the documents that fall within the scope of your FOI Request;
b) the FOI Act, specifically sections 42 and 47F;
c) the guidelines (‘FOI Guidelines’) issued by the Australian Information Commissioner under
section 93A of the FOI Act;
d) the FOI Guidance Notes, July 2011 issued by the Department of Prime Minister and Cabinet;
and
e) the
Privacy Act 1988.
For the reasons set out below, I have decided that one or more of the following exemptions, identified
in the schedule of documents at Attachment A for each document, applies to that document or part of
it: sections 42 and 47F.
Section 47F – Personal privacy
Section 47F of the FOI Act conditionally exempts a document if its disclosure under the FOI Act
would involve the unreasonable disclosure of personal information about any person (with certain
exceptions regarding the disclosure to a person of their own personal information).
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
In making my decision I had regard to:
•
the extent to which the information is well known;
•
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;
•
the availability of the information from publicly accessible sources;
•
Part 6 (Conditional Exemptions) of the FOI Guidelines.
Under subsection 11A(5) of the FOI Act, the AEC (as an agency) 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.
The disclosure of this information could reasonably be considered to prejudice the relevant
individuals’ right to privacy, including that of individuals who are no longer with the AEC. I have also
identified that there is a general risk of harm to an individual in giving access to personal, which may
be used to facilitate harassment.
Having regard to the above considerations and the factors set out in sections 11 and 47F of the FOI
Act, I have decided that the balancing of considerations weighs in favour of not releasing the names
of AEC staf below director level.
Section 42 – Legal professional privilege
Section 42(1) exempts a document if it is of such a nature that it would be privileged from production
in legal proceedings on the ground of legal professional privilege (LPP).
A document is exempt from production on the ground of legal professional privilege if all of the
following apply:
i) there exists a lawyer-client relationship;
ii) there have been confidential communications which are recorded in the document;
iii) the communications were for the dominant purpose of providing legal advice or in the
context of actual or anticipated legal proceedings; and
iv) the privilege has not been waived.
I find that disclosure of the document exempted under section 42(1) would involve disclosure of
document that would be exempt from production in legal proceedings on the ground of legal
professional privilege.
The AEC has a legal branch which is staffed by lawyers admitted to practice and who hold practising
certificates. The lawyers in this branch provide independent legal advice. They do not work on policy
or other issues.
The document to which the exemption has been applied contain communications which were at the
time and remain confidential and were for the dominant purpose of providing legal advice. I am not
aware of any information that would suggest privilege in the communications has been waived.
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
Document Outline