• the guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act (the FOI Guidelines, and;
• relevant case law
Certain operations of agencies exemption – s 47E(d)
I have decided to refuse access to 26 documents under s47E(d) of the FOI Act.
Section 47E(d) of the FOI Act provides that:
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.
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.
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:
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 documents that I have found to be exempt under s 47E(d) of the FOI Act can be
described as:
• documents related to current freedom of information complaint
investigations being considered by the OAIC
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
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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 range
of functions and powers promoting access to information under the FOI Act,
including making decisions on Information Commissioner reviews and investigating
and reporting on freedom of information complaints.
Information regarding current freedom of information complaint matters
All 26 documents contain information that is not publicly known, regarding freedom
of information investigations that are currently open and are still being investigated
by the OAIC. The release of this information at this time to a third party who is not a
party to these investigations would, or could reasonably be expected to adversely
impact on both the ability of the OAIC to manage the specific matters referred to and
future matters if parties cannot be confident that their information will not be kept
confidential while their complaints are still being investigated.
The AAT has recognised in Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) [24] 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 investigation process. In my
view, the OAIC’s ability to carry out is regulatory functions in conducting FOI
complaint investigation would be substantially and adversely affected if there was a
lack of confidence in the confidentiality of the investigative process while the
investigations are still on foot. As such, I consider the release of information on
current and ongoing matters that are not currently in the public domain would have
a substantial adverse effect on the proper and efficient conduct of the operations of
the OAIC.
The public interest test – section 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.
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In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, Deputy President
Forgie explained that:
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… the time at which I make my decision for s 11A(5) requires access to be given to a
conditional y exempt document “at a particular time” unless doing so is, on balance,
contrary to the public interest. Where the balance lies may vary from time to time for it
is affected not only by factors peculiar to the particular information in the documents
but by factors external to them.
In this case, I must consider whether disclosure of the documents at this time would
be contrary to the public interest.
Subsection 11B(3) of the FOI Act provides a list of public interest factors favouring
disclosure. The FOI Guidelines at paragraph [6.19] also provide a non-exhaustive list
of public interest factors favouring disclosure, as well as public interest factors
against disclosure. In my view, the relevant public interest factor in favour of
disclosure in this case is that the disclosure would promote the objects of the FOI Act
and inform debate on a matter of public importance. Other factors are not relevant
in this instance.
The public interest factors favouring disclosure must be balanced against any public
interest factors against disclosure. The FOI Guidelines at paragraph [6.22] contain a
non-exhaustive list of factors against disclosure. In my view, the fol owing relevant
public interest factor against disclosure in this case is that disclosure:
• could reasonably be expected to prejudice an agency’s ability to obtain
confidential information’ and
• could reasonably be expected to prejudice the proper and efficient conduct of
FOI complaint investigation functions of the OAIC.
I have given significant weight to the factor that disclosure could reasonably be
expected to prejudice the proper and efficient conduct of the FOI complaint
investigation functions of the OAIC . In each case, the information that has been
considered exempt relates to sensitive information that the OAIC has been provided
in relation to investigating freedom of information complaints. The disclosure of the
information to third parties, who is not a party to these reviews, of the material
within this matter, while the complaints are being investigated, will impact on the
wil ingness of parties to provide this information to the OAIC in the future and thus
1
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
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directly impact the efficient conduct of the OAIC. Whilst I acknowledge the factors
that support disclosure of this information, particularly that disclosure would
promote the objects of the FOI Act, I am satisfied that giving access to the
conditional y exempt material at this time would, on balance, be contrary to the
public interest.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Margaret Sui
Senior Lawyer
12 August 2022
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI 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.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
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 60 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.
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Section 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_
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@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
xxxxx@xxxx.xxx.xx. More information is available on the Access our information
page on our website.
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