relevant case law
Investigation of a breach of law (s 37(1)(a))
I have found the documents exempt in ful under s 37(1)(a) of the FOI Act.
Under s 37(1)(a), a document is exempt if its disclosure would, or could reasonably
be expected to, prejudice the conduct of a current investigation.
Section 37(1)(a) of the FOI Act states:
37 Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would,
or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible
breach, of the law, or a failure, or possible failure, to comply with a
law relating to taxation or prejudice the enforcement or proper
administration of the law in a particular instance;
The FOI Guidelines at [5.86] provides:
Section 37(1)(a) applies to documents only where there is a current or pending
investigation and release of the document would, or could reasonably be expected
to, prejudice the conduct of that investigation. Because of the phrase ‘in a particular
instance’, it is not sufficient that prejudice wil occur to other or future
investigations: it must relate to the particular investigation at hand. In other words,
the exemption does not apply if the prejudice is about investigations in general.
Additionally, at [5.87] the FOI Guidelines further explains:
The exemption is concerned with the conduct of an investigation. For example, it
would apply where disclosure would forewarn the applicant about the direction of
the investigation, as well as the evidence and resources available to the investigating
body — putting the investigation in jeopardy. The section wil not apply if the
investigation is closed or if it is being conducted by an overseas agency.
In order to determine whether disclosure of the documents would, or could
reasonably be expected to prejudice the conduct of a current investigation, the FOI
Guidelines at [5.16] - [5.17] notes:
The test requires the decision maker to assess the likelihood of the predicted or
forecast event, effect or damage occurring after disclosure of a document.
2
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and
requires analysis of the reasonable expectation rather than certainty of an event,
effect or damage occurring. It may be a reasonable expectation that an effect has
occurred, is presently occurring, or could occur in the future.
The documents at issue pertain to an ongoing investigation by a law enforcement
agency that is currently on foot. The existence of this investigation has not been
made public. Releasing the documents at issue will prejudice the conduct of the
current investigation.
Furthermore, I consider that disclosure of the documents would prejudice the
current investigations on foot. I consider it likely that the documents and the parties
involved, wil be subject to scrutiny over matters which have not been thoroughly
investigated by the appropriate law enforcement agency, if the documents are
disclosed on a public forum such as Right to Know. It is likely that as a result, the
relevant parties would be discouraged from actively participating in the current
investigation.
Accordingly, I have decided that the documents at issue are exempt under s 37(1)(a)
of the FOI Act. I consider that disclosure would, or could reasonably be expected to,
prejudice the conduct of the current investigation by a law enforcement agency.
Management and assessment of personnel (s 47E(c))
In the alternative, I have found the documents exempt under section 47E(c) of the
FOI Act. The documents can be described as:
1. Documents containing information pertaining to threats of harm against OAIC
staff members
Under s 47E(c) of the FOI Act, a document is conditionally exempt if its disclosure
could reasonably be expected to have a substantial adverse effect on the
management or assessment of personnel by an agency.
Section 47E(c) of the FOI Act states:
A document is conditionally 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.
3
The FOI Guidelines explain at [6.114]:
For this exemption to apply, the document 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
the assessment of personnel – including the broader performance
management policies and activities concerning competency, in-house
training requirements, appraisals and underperformance, counsel ing,
feedback and assessment for bonus or eligibility for progression.
I have considered the material at issue in the documents. I consider the relevant
material relates to the management of personnel, including the broader human
resources policies and activities, recruitment and occupational health and safety.
The circumstances of this request where the relevant material arises in documents is
for internal use only for the management of personnel and security purposes by the
OAIC and is material that is not published on the OAIC’s website.
Section 19 of the Work Health and Safety Act 2011 requires employers to ensure, as far
as is reasonably practicable, the health and safety of their workers. This means
employers must eliminate risks to health and safety so far as it is reasonably
practicable to do, or minimise the risks if it is not reasonably practicable to eliminate
them (section 17).
As was outlined to you in FOIREQ22/00190, there have been instances where OAIC
staff members have received threats of harm from members of the public, raising
both security and work health and safety concerns. This real risk of harm is
compounded where in it the FOI request is made via the Right to Know website,
where it is almost certain that al documents released can be published without
effort and quickly disseminated globally. Release of documents containing
information pertaining to threats of harm against OAIC staff members, would, or
could reasonably be expected to increase the risk of further threats against these
staff members.
Therefore, based on the information before me at this time, I am of the view that
disclosure of these documents via a public forum such as Right to Know, would, or
could reasonably be expected to substantial y and adversely affect the OAIC’s ability
to manage its personnel, including its broader human resources policies and
activities, particularly in relation to its statutory occupational health and safety
obligations as an employer.
4
I find the relevant material comprising of documents containing information
pertaining to threats of harm against OAIC staff members conditionally exempt
under s 47E(c) at this time.
The public interest test – s11A(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 conditional y 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 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 at [4]:
… the time at which I make my decision for s 11A(5) requires access to be
given to a conditionally 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.
The FOI Guidelines provide a further 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 wil enhance the scrutiny of government
decision making. I do not consider that the material that has been identified as
exempt under s 47E(c) of the FOI Act would enhance the scrutiny of government
decision making.
As such, the only public interest factor favouring disclosure in this case is that
disclosure would promote the objects of the FOI Act general y through promoting
access to government held information. Other factors are not relevant in this
instance.
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.
5
I consider that the relevant factor against disclosure in this instance is that disclosure
of documents containing information pertaining to threats of harm against OAIC staff
members via a public forum on Right to Know could reasonably be expected to
prejudice the OAIC’s ability to manage its personnel, including its broader human
resources policies and activities towards occupational health and safety. In
particular, in light of past instances where OAIC staff members have been subject to
threats of harm, disclosure of this material by the OAIC via a public form on Right to
Know in this case would be in contravention of OAIC’s obligations under the Work
Health and Safety Act 2011 to eliminate or minimise known risks to health and safety
as far as it is reasonably practicable to do so.
On balance, I consider that the factor against disclosure outweighs the factor in
favour of disclosure. I have therefore decided that it would be contrary to the public
interest to give you access to the information that I have found to be exempt under
s47E(c) of the FOI Act.
Conclusion
Please see the fol owing page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Alessia Mercuri
Lawyer
23 September 2022
6
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 usual y 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.
7
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.
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 would be unreasonable to publish.
As I have refused access to the documents, no documents are required to be
published on the disclosure log.
8
