Our reference: FOIREQ22/00241
Attention:  Julie
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00241
Dear Julie
I am writing to advise you of my decision in response to your application for internal
review of the decision made on 17 August 2022 (FOIREQ22/00181).
Original FOI Decision
On 13 July 2022, you applied to the OAIC for access to the following:
“I want copy of every letter the OAIC sent in FY2021/22 that states "The purpose of this
letter is to advise you of my intention to recommend the delegate of the Information
Commissioner exercises the discretion to decide not to continue to undertake a review
of your IC review application".
Personal information of any person to be redacted under s 22, as well as the FOI and IC
review references numbers.
Transparency of reasoning as to why ic reviews are not recommended by OAIC staff is
important in showing what confidence can be had in the Office's primary statutory
functions.”
On 15 August 2022, after entering into a consultation period with you, you were
advised in light of the short timeframe remaining to process your request, you were
informed that, the original decision maker would interpret your scope as follows, if
we did not receive a response from you:
“ITD letters from the first 100 IC Review matters received by the OAIC in the 2022
Financial Year”.
We did not receive a response prior to the decision made on 17 August 2022. The
decision granted access to 90 documents in part and 10 documents in ful . The
documents were provided to you in two tranches, with the first provided on 24
August 2022 and the second on 1 September 2022.

1300 363 992
T +61 2 9284 9749  GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666  Sydney NSW 2001  ABN 85 249 230 937

Internal review
On 29 August 2022 you sought internal review of this decision stating:
I write for an internal review of Office of the Australian Information Commissioner's
handling of my FOI FOIREQ22/00181 's 54W decline review recommendation letters'.

A ful history of my FOI request and al correspondence is available on the Internet at
this address:
https://www.righttoknow.org.au/request/s_54w_decline_review_recommendat

This improper decision proclaims it is exercising two powers beyond the scope of the
FOI Act - deferring access (which outside of s 21, which was not invoked, the OAIC has
no power to do) and substituting a clear and unambiguous scope without consent (s
15(2)(b) does not al ow for an foi agency to substitute its preferred scope for an
applicant's scope) - that is improper, unethical and ultra vires.

The claim that the OAIC is also keeps no reasonable records as would be expected of an
adequate record keeping system for Commonwealth records of the dates it issues
correspondence to third parties is one that flies in the face of the Commissioner's
guidelines that:

"it is implicit in the objectives [of the FOI Act] that there is a requirement for sound
record keeping so that an agency’s documents can be readily identified and found
when an FOI request is received... In summary, applicants cannot be disadvantaged by
poor or inefficient record keeping by agencies or ministers... Poor record keeping or an
inefficient filing system would not of themselves provide grounds for a claim that
identifying or locating documents would be a substantial and unreasonable diversion
of resources. See ‘AP’ and Department of Human Services [2013] AICmr 78 [38]."

as the Guidelines explain:
Given the objectives in the FOI Act that information held by government is a national
resource and that public access to information should be facilitated, agencies must
ensure that appropriate resources are al ocated to dealing with FOI matters. This may
include assigning additional temporary resources to handle a peak in the number or
complexity of requests or to overcome inadequate administrative procedures. Poor
record keeping or an inefficient filing system would not of themselves provide grounds
for a claim that identifying or locating documents would be a substantial and
unreasonable diversion of resources.

As the Information Commissioner stated: "I think that poor record keeping or an
inefficient filing system can also not in themselves provide grounds for a claim that the
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preparation of documents (for decision and editing) would be a substantial and
unreasonable diversion of an agency’s resources."

In this case, the fact that the OAIC claims its databases/registries cannot extract its
outgoing correspondence in date order and by type amounts to an inadequate
administrative procedure. As the Guidelines explain, an foi agency cannot rely on the
inadequacy of its systems to act as a barrier to access.

The exemption claims, especial y the "certain operations of agencies" claim on the
dates of such correspondence, is whol y untenable as these claims rely on generic and
broad template text claims that amount to a class specific claim, and not one based on
the material redacted or any reasonable evidence of a substantial adverse effect if
release occurred. They are blanket claims.
Deferred access
You state that the fact the documents were provided to you in two separate tranches
amounted to deferred access to the documents outside of s 21 of the FOI Act. The
FOI Act requires that a decision be provided to the applicant with the statutory
timeframe provided. I note that in relation to your request a decision was provided
within the statutory timeframe. The OAIC acknowledges the importance of timely
access to documents under the FOI Act. However, at times, given the number of FOI
on hand and the size and complexity of the documents, it can take additional time to
prepare documents for release in accordance with the FOI Act. This is what occurred
in relation to your request.
Scope of your request
I note that correspondence dated 15 August 2022 set out how your request was to be
interpreted. You were provided an opportunity to respond to that correspondence
and clarify the terms of your request. As you did not respond, I consider it was open
to the original decision maker to interpret the scope of your request as being “ITD
letters from the first 100 IC Review matters received by the OAIC in the 2022 Financial
Year”. Nonetheless, based on your request for internal review, I accept that your
request is for the first 100 's 54W decline review recommendation letters'.
Searches
Based on the terms of your request, additional searches of outgoing emails from the
FOIDR inbox, were undertaken and the first 100 's 54W decline review
recommendation letters' have been identified. I have made a decision in relation to
these letters.
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Material taken into account
In making my internal review decision, I have had regard to the fol owing:
•  your original freedom of information request FOIREQ22/00181 dated 13
July 2022
•  Request consultation undertaken with you dated 8 August 2022
•  Your response to the request consultation dated 12 August 2022
•  the decision of the delegate dated 17 August 2022 the subject of this
review
•  your request for internal review dated 29 August 2022
•  the FOI Act, in particular s 22 and s47E(d)
•  relevant case law
•  the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act.
Internal Review Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.

An internal review decision is a ‘fresh decision’ made by a person other than the
person who made the original decision (section 54C of the Freedom of Information Act
1982 (the FOI Act)). I have had regard to, but not relied on, the delegate’s original
Freedom of Information (FOI) decision.

I have decided to exempt 33 documents in part and 7 documents in ful  under
s47E(d) of the FOI Act. In addition, I have removed irrelevant material under s 22 of
the FOI Act. Details of my decision are included in the attached schedule and the
reasons for my decision are set out below
Irrelevant material (s 22)
I have found material in 93 documents contain irrelevant material, or material
outside the scope of your request.
Section 22(1)(b)(ii) of the FOI Act provides that an agency may prepare an edited
copy of a document by deleting information that is exempt or that would reasonably
be regarded as irrelevant to the request.
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The FOI Guidelines explain at [3.54] that a request should be interpreted as
extending to any document that might reasonably be taken to be included within the
description the applicant has used.
In your FOI request you excluded as irrelevant from your request personal
information of any person, as well as the FOI and IC review references numbers.
Consistent with your request, I have deleted irrelevant material, including material
that you have expressly excluded in your request. I have released documents in part
with personal information of private individuals deleted as irrelevant to your request
in accordance with section 22 of the FOI Act.
Certain operations of agencies exemption – s 47E(d)
I have found 40 documents to be exempt in full or in part under section 47E(d) of the
FOI Act.
The documents that I have found to be exempt contain material that relates to
current IC reviews being considered by the OAIC. I have also found exempt material
that relates to closed IC reviews where that material details departmental
submissions provided to the OAIC in the course of considering the IC review and the
OAIC’s assessment of those submissions. I note that you are not a party to any of the
IC reviews identified as relevant to your request.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure
could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
Section 47E(d) of the FOI Act states:
A document is conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
The FOI Guidelines at [6.101] provides:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably
expected to occur. The term ‘could reasonably be expected’ is explained in greater
detail in Part 5. There must be more than merely an assumption or al egation that
damage may occur if the document were to be released.
Additionally, at [6.103] the FOI Guidelines further explain:
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An agency cannot merely assert that an effect would occur following disclosure. The
particulars of the predicted effect should be identified during the decision making
process, including whether the effect could reasonably be expected to occur. Where
the conditional exemption is relied upon, the relevant particulars and reasons
should form part of the decision maker’s statement of reasons, if they can be
included without disclosing exempt material (s 26, see Part 3).
The term ‘substantial adverse effect’ explained in the Guidelines [at 5.20] and it
broadly means ‘an adverse effect which is sufficiently serious or significant to cause
concern to a properly concerned reasonable person’.
The word ‘substantial’, taken in the context of substantial loss or damage, has been
interpreted as ‘loss or damage that is, in the circumstances, real or of substance and
not insubstantial or nominal’.
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC, I have taken into consideration the functions and activities of
the OAIC.
In particular, I have had regard to the Australian Information Commissioner’s privacy
powers, freedom of information powers and regulatory powers, under the Australian
Information Commissioner Act 2010 (Cth) (AIC Act), the Privacy Act and the FOI Act.
Under the AIC Act and the FOI Act, the Information Commissioner has a range of
functions and powers promoting access to information under the FOI Act, including
making decisions on IC reviews and investigating and reporting on freedom of
information complaints, as well as assessing and making decisions on vexatious
applicant declarations.
The AAT has recognised in Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) that the conduct of an
agency’s regulatory functions can be adversely affected in a substantial way when
there is a lack of confidence in the confidentiality of the investigative process.
Similarly, in this instance, the OAIC’s ability to carry out its regulatory functions
would be affected if there was a lack of confidence in the confidentiality of this
process.
I have refused access in full to a number of documents that relate to IC reviews that
are current and ongoing. Given that these IC reviews remain open, I consider that
while consideration is ongoing, disclosure of the relevant material at this stage can
impede the efficient conduct of the case. Specifically, the relevant OAIC officers are
still in the process of formulating their views, and gathering facts and evidence, and
no decisions or findings have been made regarding these IC reviews. Parties to the IC
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review are provided an opportunity to respond if an adverse finding is likely to be
made, for procedural fairness reasons. Further, if an IC review is made, it is
appropriate for the parties to the IC review to be advised of that outcome. An IC
review is only considered for publication once the matter has been finalised.
In addition to open IC reviews, I have considered exempt a small amount of material
in closed IC reviews, where it relates to submissions provided to the OAIC from the
relevant department and the OAIC’s assessment of those submissions. Whilst
submissions are generally shared between the parties, they are not made public, and
can include sufficient detail to identify particular individuals. In addition,
departments are less likely to provide fulsome submissions if those submissions are
not treated confidentiality between the parties. I again, note that you are not a party
to any of these IC reviews.
Accordingly, I consider that at this time, disclosure of this IC review material to you
via the Right to Know website, would, or could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the OAIC’s
operations in conducting IC reviews.
Public interest (s 11A(5))
An agency cannot refuse access to conditional y exempt documents unless giving
access would, on balance, be contrary to the public interest (s 11A(5)). The FOI
Guidelines explain that disclosure of conditionally exempt documents is required
unless the particular circumstances at the time of decision reveal countervailing
harm which overrides the public interest in giving access. In this case, I must
consider whether disclosure of the documents at this time would be contrary to the
public interest. I must consider whether disclosure of the documents at this time
would be contrary to the public interest.
The FOI Guidelines provide a non-exhaustive list of factors favouring disclosure (see
[6.19]). These factors include when disclosure will reveal the reason for a
government decision and any background or contextual information that informed
the decision and when disclosure will enhance the scrutiny of government decision
making. I consider that the material that has been identified as exempt under
s47E(d) would enhance the scrutiny of government decision making. I also
acknowledge that disclosure would promote the objects of the FOI Act generally
through promoting access to government held information. Other factors are not
relevant.
Against these factors, I must balance the factors against disclosure. The FOI Act does
not specify factors against disclosure, however the FOI Guidelines at paragraph [6.22]
provides a non-exhaustive list of factors against disclosure.
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I consider that the relevant factors against disclosure in this instance are as follows:
•  that disclosure could reasonably be expected to prejudice the OAIC’s ability
to obtain confidential information
•  that disclosure could reasonably be expected to prejudice the OAIC’s ability
to obtain similar information in the future, and
•  that disclosure could reasonably be expected to prejudice the conduct of IC
reviews.
I have given significant weight to these factors, given the important role of the OAIC
as regulator for the FOI Act, and the need to work cooperatively with applicants and
agencies to ensure access to information to the public under the FOI Act. I am
satisfied that the public interest factors against disclosure outweigh the public
interest factor in favour of disclosure.
I have decided that at this time, giving you full access to the documents, which I have
found to be conditionally exempt under s 47E(d) of the FOI Act, would, on balance,
be contrary to the public interest.  The documents are being prepared for release.
They will be provided to you no later than 28 September 2022.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or
business information that it would be unreasonable to publish.
The documents I have decided to release to you contains exempt material. As a
result, an edited version of the documents be published on our disclosure log within
10 days of providing you access.
Yours sincerely

Emma Liddle
Director Legal
26 September 2022

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If you disagree with my decision
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 (which can be 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 will usually not be in the interests of
the administration of the FOI 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, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
s 57A of the FOI 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 IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact xxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
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Document Outline