26 September 2022
Ms Jane Seaborn
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Seaborn
Freedom of Information
FOI Reference number: 22/23 - 2
I refer to your email dated 15 July 2022 to the Fair Work Commission (
Commission), in which
you requested access to documents under the
Freedom of Information Act 1982 (
FOI Act).
I am authorised to make a decision in relation to your request pursuant to section 23 of the FOI
Act.
Timeframe for Processing Request
The 30 day statutory time period for processing this request commenced on the day following the
day on which your request was received (subsection 15(5) of the FOI Act).
On 1 August 2022, I sent you an estimate of preliminary charges to process your request, and on
the same date you agreed to pay the estimated charges. The time to process your request was
suspended on 1 August 2022 and started again when confirmation of the deposit being paid was
received by the Commission. The Commission received the deposit on 16 August 2022,
therefore the new due date for your request was 28 August 2022.
On 23 August 2022, I notified you that as your request covers documents which contain the
personal information of other individuals, if it is reasonably practicable, the Commission is required
(under section 27A of the FOI Act) to consult with those individuals before making a decision on
the release of those documents.
For this reason, the period for processing your request was extended by 30 days to allow the
Commission time to consult. The due date for a decision on your request is now
26 September
2022.
Your Request
You requested access to the following documents:
‘Documents, emails, file notes and other communications and records relating to all
complaints made about former Fair Work Commissioner Barbara Deegan, and details of
the resulting investigations by the FWC and any independent investigations into Ms
Deegan's conduct during her entire employment (of some 18 years) with the FWC.’
Decision
I conducted searches of the Commission’s archived system and requested searches to be
conducted by Commission staff of the Complaints mailbox and archived system and the
Presidents mailbox for documents within the scope of your request.
As set out at
Attachment 1,
I have identified 371 pages that are within the scope of your request.
I have decided to grant you access in full to 25 pages (pages 22, 96 to 117, 134, 135).
I have decided to give you edited copies of 9 pages (15, 21, 23, 35, 94, 129, 133, 222, 298).
In summary:
- Page 15 is a response to a complaint with the complainant’s personal information
redacted
- Page 21 is a copy of a complaint with the complainant’s personal information redacted
- Page 22 is a copy of an invitation to an HR Practitioner’s Forum presented by the
Australian Government Solicitor
- Page 23 is a response to a complaint with the complainant’s personal information
redacted
- Page 35 is a response to a complaint with the complainant’s personal information
redacted
- Page 94 is a response to a complaint with the complainant’s personal information
redacted
- Pages 96 to 117 are a copy of a transcript that was attached to page 94
- Page 129 is a response to a complaint with the complainant’s personal information
redacted
- Pages 133 is a response to a complaint with the complainant’s personal information
redacted
- Pages 134 and 135 are a Guide to appealing a decision, published by Fair Work
Australia, which was attached to page 133
- Page 222 is a response to a complaint with the complainant’s personal information
redacted
- Page 298 is a response to a complaint with the complainant’s personal information
redacted
I have decided to refuse access to 337 pages.
The reasons for my decision are set out below.
Reasons for decision
In reaching my decision I took the following material into account:
• your correspondence of 15 July 2022 outlining the particulars of your request;
• documents falling within the scope of your request;
• the FOI Act. Some relevant provisions are set out in
Attachment 3;
• submissions made by a third party who was consulted under section 27A of the FOI
Act; and
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
Guidelines).
Conditional Exemptions
Certain operations of agencies
Section 47E of the FOI Act relevantly provides:
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency
(d) have a substantial adverse effect on the proper and efficient conduct of operations of an
agency.
There must be at least a real, significant or a material possibility of adverse effect and the
adverse effect must be sufficiently serious to cause concern to a reasonable person.
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link to page 3 link to page 3 link to page 3 link to page 3 link to page 3
Paragraph 5.20 of the Guidelines provides:
5.20 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is sufficiently
serious or significant to cause concern to a properly concerned reasonable person.
…
Paragraph 6.115 of the Guidelines provides:
6.115 The terms ‘would reasonably be expected’ and ‘substantial adverse’ have the same
meanings as explained in Part 5. If the predicted effect would be substantial but not adverse or
maybe even beneficial, the conditional exemption does not apply. It would be unlikely for the
potential embarrassment of an employee to be considered to be an effect on an agency.
Paragraph 6.114 of the Guidelines provides:
6.114 For the exemption in section 47E(c) to apply, the documents must relate to either:
• the management of personnel – including the broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and
occupational health and safety; or
• the assessment of personnel – including the broader performance management policies
and activities concerning competency, in-house training requirements, appraisals and
under performance, counsel ing, feedback, assessment for bonus or eligibility for progression.
In
Carver and Fair Work Ombudsman,
1 the Australian Information Commissioner discussed the
importance for an agency of it being able to collect frank evidence in relation to a code of conduct
investigation of an employee, noting that persons providing such evidence would expect it not to
be widely disclosed.
2
In
De Tarle and Australian Securities and Investments Commission,3 the Administrative Appeals
Tribunal (
AAT) stated:
I accept that candour is essential when an agency seeks to investigate complaints …
staff may be reluctant to provide information and cooperate with investigators if they were
aware that, the subject matter of those discussions would be disclosed and made public.
That then would, in my view, have a substantial adverse effect on the management of
the agency's personnel.4
With the exception of pages 127, 146, 155, 212, 231, 237, 253 and 259 (which are parts of emails
but just include generic disclaimers about use of the email), and pages 134 - 135, al of the pages
that are within the scope of your request contain information which was col ected or created for
the purposes of dealing with particular complaints about a Commission Member.
From the commencement of the
Fair Work Act 2009 (
FW Act), complaints about Commission
Members have been handled pursuant to the complaints handling process administered by the
President of the Commission under section 581A of the FW Act. The Commission’s Procedure
for dealing with complaints about Members (
Complaints Procedure) provides details of the
procedure followed in dealing with such complaints.
5
The Complaints Procedure operates in a statutory context in which the President cannot compel
a Commission Member to provide a response to a complaint or has limited power to take
1 [2011] AICmr 5.
2 Ibid at [22].
3 [2016] AATA 230.
4 Ibid at [42].
5 Available at
https://www.fwc.gov.au/about-us/contact-us/feedback-and-complaints/complain-about-
member-commission/procedure-dealing.
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link to page 4 link to page 4 link to page 4 link to page 4
disciplinary action against a Member. Under the FW Act, a Member may generally only be
removed from office by the Parliament on the grounds of proved misbehaviour or inability to
perform the duties of office because of physical or mental incapacity.
It follows that the capacity of the Commission to appropriately resolve a complaint, including by
identifying and addressing any Member performance issues, depends to a significant extent upon
the cooperation of the Member involved. If Members held a concern that information collected for
the purposes of dealing with complaints under the Complaints Procedure has the potential to be
disclosed to others, it is expected that Members wil be reluctant to participate openly and
candidly in the process.
Further, people making complaints about Commission Members do so on the understanding that
their complaint will not be made public. The Commission does not publish copies of complaints
received, and only publishes de-identified, aggregate data about complaints in its annual reports.
If people thought that the detail they provide in complaints might be made publicly available, this
may limit the frankness with which they raise their concerns.
In
Jones and Australian Federal Police,
6 the AAT found that Australian Federal Police
Professional Standards investigations relied upon information being treated confidentially. The
AAT found documents relating to such an investigation to be conditionally exempt under section
47E having regard to their content and the following additional factors:
• the documents contain information that was obtained in circumstances where
there was an expectation of confidentiality;
• the documents do not reveal any unlawful activity in the … investigation process;
• the documents relate to events in the recent past; and
• the people who provided information to the … investigation have not consented
to the disclosure of that information.
7
While I note that the pages within the scope of your request do not relate to events in the recent
past, I otherwise consider that the factors listed above apply in this case. The pages within scope
contain information obtained under the Complaints Procedure, through which there was and
remains an expectation of confidentiality by the complainants and the relevant Members.
Additionally, they do not reveal any unlawful activity in the complaint handling process.
Accordingly, I am satisfied that granting access to material in the pages that was collected from
complainants and Members would have a substantial adverse effect on the Commission’s ability
to manage and assess its personnel and could reasonably be expected to prejudice the
Commission’s ability to effectively and properly investigate and resolve future complaints about
Members. I am satisfied that this information is conditionally exempt under sections.47E(c) and
(d).
Pages 1 to 14, 90 to 91, 118 to 127, 168 to 216 and 260 to 292 relate to complaints arising in the
context of conferences before the Commission, and include details of the discussions, parties to,
and outcomes of those conferences, including copies of Terms of Set lement. In accordance with
sections 368(2), 374(2), 398(2) and 776(2) of the FW Act,
8 conferences must be conducted in
private and in general, discussions in private conferences are treated as being confidential. The
FW Act’s predecessor legislation similarly required that compulsory conferences generally be
conducted in private (see
Workplace Relations Act 1996 (Cth), s.115(3)).
In
‘L’ and Australian Human Rights Commission,
9 the Australian Information Commissioner held
that disclosure of documents containing a record of discussions between the respondent and the
conciliation officer during the conciliation of a complaint made by the applicant:
would undermine the confidential nature of its conciliations and affect the willingness of people to
engage in an open and frank manner during the conciliation process in the future. That would have
6 [2016] AATA 329.
7 Ibid at [21]-[22].
8 See also s.592(3) of the FW Act.
9 [2012] AICmr 21.
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link to page 5
a substantial adverse effect on the proper and efficient conduct of the Commission’s operations.
Accordingly, the documents sought by the applicant are conditionally exempt under s 47E(d).10
The Commission’s conciliation processes are intended to facilitate settlements of disputes and
avoid litigation. This could be said to facilitate access to justice. I consider there is a real possibility
that disclosure of pages 1 to 14, 90 to 91, 118 to 127, 168 to 216 and 260 to 292 may undermine
or be perceived to undermine the confidentiality of settlement discussions and the processes of
the Commission as disclosure of such discussions may adversely impact the wil ingness of
parties to engage in full and frank settlement discussions. This could reduce the rate of settlement
achieved at or following conciliation, resulting in increased costs to parties and to the Commission
or courts in the future. Accordingly, I am satisfied that the pages concerning complaints arising in
the context of Commission conferences are conditionally exempt under section 47E(d).
Personal Information
Section 47F of the FOI Act
I have applied the conditional exemption in section 47F(1) of the FOI Act, which deals with
unreasonable disclosure of personal information to pages 1 to 14, 16 to 20, 24 to 34, 37 to 93,
95, 118 to 128, 130, 131, 132, 136 to 221, 223 to 297, 299 to 371 and to certain parts of pages
15, 21, 23, 35, 94, 129, 133, 222, 298.
Section 47F of the FOI Act relevantly provides:
'(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).
(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(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 mat ers dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.'
Personal Information
Section 4(1) of the FOI Act states that the term 'personal information' has the same meaning as
in the
Privacy Act 1988 (Cth). Section 6(1) of the
Privacy Act 1988 (Cth) (
Privacy Act) defines
‘personal information’ as:
'. .information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
a. whether the information or opinion is true or not; and
b. whether the information or opinion is recorded in a material form or not. .'
Paragraph 6.130 of the Guidelines provides:
'Personal information can include a person's name, address, telephone number, date of
birth, medical records, bank account details, taxation information and signature.'
10 Ibid at [10].
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I consider that, with the exception of pages 127, 146, 155, 212, 231, 237, 253 and 259 (which are
the final pages of emails and just include a disclaimer about use of the email), and pages 134 -
135, all of the pages that are within the scope of your request contain the ‘personal information’
of people other than you (
Third Party Personal Information). This includes the names and
contact details of complainants and other people involved in their matters before the
Commission, details of their complaint, details of their Commission case and information
provided or evidence given in proceedings before the Commission. In some cases, this includes
sensitive information (as that term is defined in the Privacy Act), such as information about a
complainant’s medical condition or sexual orientation or practices. It also includes copies of
documents that include complainants’ financial information.
'Unreasonable' disclosure
In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.138 of the
Guidelines provides:
'6.138 The personal privacy exemption is designed to prevent the unreasonable invasion
of third parties' privacy. The test of 'unreasonableness' implies a need to balance the
public interest in disclosure of government-held information and the private interest in the
privacy of individuals.'
As discussed in
‘FG’ and National Archives of Australia [2015] AICmr 26, other factors that may
be relevant are:
• The nature, age and current relevance of the information
• Any detriment that disclosure may cause to the person to whom the information
relates
• Any opposition to disclosure expressed or likely to be held by that person
• The circumstances of an agency’s collection and use of the information
• The fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
• Whether disclosure of the information might advance the public interest in
government transparency and integrity.
I have considered the above factors and am satisfied that the disclosure of the Third Party
Personal Information would be unreasonable for the following reasons.
Due to the passage of time and noting the approximately 18 year period covered by your request,
I consider that it is not reasonably practicable (within the meaning of section 27A(4)) for me to
consult with all of the individuals whose personal information is included in the Third Party
Personal Information. However, during the processing of your request I invited an individual,
under section 27A of the FOI Act, to make submissions on whether disclosure of the documents
would involve the unreasonable disclosure of their personal information and would, on balance,
be contrary to the public interest. I received submissions from the individual, which I have taken
into account as required by section 27A of the FOI Act.
I have decided that disclosure of the Third Party Personal Information would involve the
unreasonable disclosure of personal information because:
• you do not have the consent from the individuals for the release of their personal
information to you;
• the information is not available from publicly accessible sources;
• the information includes sensitive information, such as information about individuals’
health and sexual orientation and practices;
• the individual I was able to consult with has opposed the release of the information in
pages 10 to 15 and 206 to 216 on the grounds that disclosure may cause them
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link to page 7
prejudice, and I am satisfied that the individual's contentions are reasonable in the
circumstances.
I have also taken into consideration that the FOI does not control or restrict any subsequent use
or dissemination of information released under the FOI Act, and that a decision to give a person
access should therefore be made in the knowledge that the applicant may share the content of
the pages with others or publish them to a larger audience.
11 Accordingly, I believe that granting
unrestricted access to the Third Party Personal Information would affect the personal privacy of
the individuals involved, noting that in some cases the pages contain significant personal
information about them, which could be widely distributed with no restrictions imposed on their
further use.
Based on the above, I have decided that the Third Party Personal Information is conditionally
exempt under section 47F(1) of the FOI Act.
Public Interest Test
Under section 11A(5) of the FOI Act, the Commission must give you access to conditionally
exempt documents unless in the circumstances it would be, on balance, contrary to the public
interest to do so.
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
• promote the objects of the FOI Act; and
I have also considered the relevant factors weighing against disclosure. In particular, I have
considered the extent to which disclosure could reasonably be expected to:
• harm the interests of an individual;
• prejudice the protection of an individual’s right to privacy;
• prejudice the Commission’s ability to obtain confidential information;
• prejudice an agency’s ability to obtain similar information in the future; and
• impede the administration of justice generally, including procedural fairness.
As discussed earlier, disclosure of the pages within the scope of your request would disclose
personal information about the individuals involved in the mat ers to which the complaints relate,
which was provided to the Commission with an expectation of confidentiality. Disclosure of these
pages could also be reasonably expected to prejudice the ability of the Commission to effectively
investigate and appropriately resolve future complaints about Commission Members.
Furthermore, disclosure of pages concerning private conferences could reasonably be expected
to undermine the perceived confidentiality of settlement discussions and processes and so
adversely impact the wil ingness of parties to engage in full and frank settlement discussions.
Based on these factors, I have decided that in the circumstances of this particular matter, the
public interest in disclosing the conditionally exempt material is outweighed by the public interest
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.
In this instance, I consider that the public interest is weighted more heavily against disclosure
and therefore giving access to the conditionally exempt material would, on balance, be contrary
to the public interest. Accordingly, I refuse access to the conditionally exempt material.
11 Guidelines at paragraph 3.36.
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Redacting documents
A refusal to give access to exempt documents triggers a requirement to consider section 22 of
the FOI Act. This section relevantly requires that if an agency decides to refuse access to an
exempt document, if possible, the agency must prepare an edited copy of a document, modified
by deletions. It must be reasonably practicable for an edited copy to be prepared, particularly
having regard to the nature and extent of the modification and the resources available to modify
the document.
The Guidelines provide that an agency ‘should take a common sense approach in considering
whether the number of deletions would be so many that the remaining document would be of little
or no value to the applicant. Similarly, the purpose of providing access may not be served if
extensive editing is required that leaves only a skeleton of the former document that conveys little
of its content or substance…’.
12
I have concluded that it is reasonably practicable to prepare edited copies of pages 15, 21, 23,
35, 94, 129, 133, 222, 298 , but not the other pages containing exempt material. The nature and
extent of the modifications that would be required mean that redacting the exempt material from
those documents would leave a skeleton of the former documents and strip them of their
meaning and substance, and the time and resources required to apply the redactions would be
significantI note that pages 46 to 50, 52 to 58, 60, 62 to 67, 168, 223 to 259, 305, 306 to 310, 314
also contain material that I consider to be outside the scope of your request, which I have
redacted as irrelevant.
I have deleted the exempt information from pages 15, 21, 23, 35, 94, 129, 133, 222, 298 in
accordance with section 22 on the basis that the information was exempt under sections 47F(1)
or 47(E) and 11A(5) of the FOI Act. I wil provide you with the edited copies of these pages.
I have decided that pages 22, 36, 96, to 117, 134, 135 do not contain exempt material and
accordingly I have not redacted any information from them.
Release of documents
The Commission received a number of exemption contentions from the individual consulted
under section 27A which were not accepted in relation to page 15. I notified these parties of my
decision on 26 September 2022. These parties have 30 days to apply for internal or Information
Commissioner review of my decision. The information on page 15 relating to the individual will be
withheld under section 27A(5) of the FOI Act, until all opportunities for review or appeal of the
decision to give access to the information have run out, and the access decision stil stands.
Charges
On 1 August 2022 I notified you of my preliminary assessment of charges for the processing of
your FOI request. The Commission received your deposit of $365.50 on 16 August 2022. Upon
completion of your request, I confirm the actual amount for processing was calculated to be
$1052.
Documents for release wil be provided following receipt of the balance of the processing charge
which is $686.50.
Length of documents
Number of pages
371
PROCESSING CHARGES
A. Search and retrieval
12 Guidelines at paragraph 3.98.
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Task
Time
Cost @ $15/hr
Search and retrieval of documents
11.5 hours
$172
B. Decision making
Task
Time
Cost @ $20/hr
Examination of pages for decision making
27 hours
$540
10 hours
(actually 12
hours, but
$200
only charging
10 as
Consultation with third parties
quoted)
Preparation of documents for release including redacting
4 hours
exempt or irrelevant material
$80
4 hours
(actually 7
hours but
$80
only charging
4 hours as
Preparation of decision letter
quoted)
Preparation of schedule of documents
4 hours
$80
Decision making subtotal (before deduction of 5
49hours
hours)
$980
Decision making subtotal (after deduction of
44 hours
first 5 hours free)
$880
FINAL TOTALS AND DEPOSIT
TOTAL (total of A and B)
$1052
LESS DEPOSIT
$365.50
REMAINING BALANCE
$686.50
Please note that charges are calculated on the actual time taken to process your FOI request,
which includes searching for and reviewing all pages, including those that are exempt in part or
full from release under the FOI Act. The charges do not reflect the number of pages that you are
being granted access to, nor how helpful they will be to you (noting that I do not know the reason
for your FOI request).
The pages below are the pages I have granted you access to in part or full:
I have decided to grant you access to 25 pages (pages 22, 96 to 117, 134, 135).
I have decided to give you edited copies of 9 pages (15, 21, 23, 35, 94, 129, 133, 222, 298).
Al other pages I have refused you access to under the FOI Act as stated above in my decision
letter.
You can pay the remaining balance by bank transfer to:
Account Name: FWC Official Departmental Receipts Account
BSB: 093-003
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Account Number: 110440
Access to documents
Once I have confirmation that the remaining balance has been paid, I will send you a copy of the
pages that I have granted you access to in full or part.
Rights of review I have set out your rights to seek a review of my decision at
Attachment 2.
Should you have any queries concerning this mat er, please contact me via email on
xxx@xxx.xxx.xx.
Kind regards
Tracey
FOI and Privacy Officer
Fair Work Commission
Email:
xxx@xxx.xxx.xx
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Attachment 1 - Schedule of Documents – Barbara Deegan – 22/23 - 2
Pages
Description
Decision
FOI
Comments
exemption
1 to 371
Documents related to complaints about
Exempt in part s47F(1)
s47F(1) – to third party information
former Commissioner Barbara Deegan
Exempt in full to pages – 1 to 14, 16 to 20, 24 to 34, 37
to 93, 95, 118 to 128, 130, 131, 132, 136 to 221, 223 to
297, 299 to 371
Exempt in part to pages – 15, 21, 23, 35, 94, 129, 133,
222, 298
Redactions applied under s22
s47E(c)
s47E(c) and (d) – applied to information that could have
and (d)
a substantial adverse effect on the management of
complaints
Exempt in full to pages – 1 to 6, 10 to 13, 15 to 20, 24 to
91, 118 to 132, 136 to 166, 168, 169, 198 to 221, 260 to
278, 292 to 371
Exempt in part to pages - 133
Redactions applied under s22
s47E(d)
s47E(d) - applied to information that could have a
substantial adverse effect on the conduct of
conferences
Exempt in full to pages – 1 to 14, 90 to 91, 118 to 127,
168 to 216 and 260 to 292
Release in full – page 22, 36, 96, to 117, 134, 135
Release in part to pages – 15, 21, 23, 35, 94, 129, 133,
222, 298
s22(1)(c) – applied to pages 25 to 36, 45 to 60, 61 to
89, 223 to 259 and 305 to 330
s22 – information outside the scope of the request –
pages 46 to 50, 52 to 58, 60, 62 to 67, 168, 223 to 259,
305, 306 to 310, 314
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Attachment 2 - Rights of Review
Internal review
If you disagree with my decision, you have the right to apply for an internal review by the
Commission. If you want to apply to the Commission for internal review, you should do so within
30 days after you are notified of my decision. The internal review wil be conducted by an officer
other than myself, and the Commission must make a review decision within 30 days.
Applications for internal review should be sent to:
Murray Furlong
General Manager
Fair Work Commission
GPO BOX 1994
Melbourne VIC 3001
Email:
xxxxxxxxxxxxxx@xxx.xxx.xx
Review by the Information Commissioner
Under section 54L of the FOI Act, you can apply to the Information Commissioner for review of
my decision. If you want to apply to the Information Commissioner for review, you must do so in
writing within 60 days after you are notified of my decision.
More information is available on the Information Commissioner website at
https:/ www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
How to make a complaint
You can complain to the Information Commissioner about action taken by the Commission in
relation to your FOI request.
Enquires to the Information Commissioner can be directed to:
Phone: 1300 363 992 (local call charge)
For more information, visit:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint.
Attachment 3 - Relevant Provisions of the FOI Act
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has
been paid.
(2) This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with this
Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at
a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a
request (see section 3A (objects—information or documents otherwise accessible)).
(5) 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.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance,
be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the
document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at
a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of
exempt document in
subsection 4(1).
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11B Public interest exemptions—factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt
document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) 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 (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government,
or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the
document;
(c) the author of the document was (or is) of high seniority in the agency to which the request
for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public
interest, an agency or Minister must have regard to any guidelines issued by the Information
Commissioner for the purposes of this subsection under section 93A.
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably
be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an
edited copy) of the
document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to
documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be
regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having
regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the
applicant would decline access to the edited copy.
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Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is exempt matter because
of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole
document unless the applicant requests the agency or Minister to give the applicant a notice in
writing in accordance with that section.
27A Consultation—documents affecting personal privacy
Scope
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing personal
information about a person (including a person who has died); and
(b) it appears to the agency or Minister that the person or the person’s legal personal
representative (the
person concerned) might reasonably wish to make a contention
(the
exemption contention) that:
(i) the document is conditionally exempt under section 47F; and
(ii) access to the document would, on balance, be contrary to the public interest for the
purposes of subsection 11A(5).
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to
the public interest (see section 11A).
(2) In determining, for the purposes of paragraph (1)(b), whether the person concerned might
reasonably wish to make an exemption contention because of personal information in a
document, the agency or Minister must have regard to the following matters:
(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 information;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Opportunity to make submissions
(3) The agency or Minister must not decide to give the applicant access to the document unless:
(a) the person concerned is given a reasonable opportunity to make submissions in support of
the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.
(4) However, subsection (3) only applies if it is reasonably practicable for the agency or Minister
to give the person concerned a reasonable opportunity to make submissions in support of the
exemption contention, having regard to all the circumstances (including the application of
subsections 15(5) and (6) (time limits for processing requests)).
Decision to give access
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(5) If the agency or Minister decides to give access to the document, the agency or Minister must
give written notice of the decision to both of the following:
(a) the person concerned;
(b) the applicant.
Access not to be given until review or appeal opportunities have run out
(6) However, the agency or Minister must not give the applicant access to the document unless,
after all the opportunities of the person concerned for review or appeal in relation to the
decision to give access to the document have run out, the decision to give access still stands,
or is confirmed.
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the
Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the
document have
run out, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption
contention
(7) Subsections (5) and (6) do not apply unless the person concerned makes a submission in
support of the exemption contention as allowed under paragraph (3)(a).
Edited copies and personal information
(8) This section applies:
(a) in relation to an edited copy of a document—in the same way as it applies to the
document; and
(b) in relation to a document containing personal information—to the extent to which the
document contains such information.
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(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 or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
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(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the
public interest (see section 11A).
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