Where a claim is made by an foi agency that release of a document in its original form is
exempt in ful , the FOI Act creates an obligation on the foi agency to consider if access in
another form would allow some release.
This was not done. Some individual details may have some valid concerns, but this is
untrue for every part of such documents.”
A decision on your internal review decision is due on 3 November 2022.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests on behalf of the OAIC. I have again identified 14 documents within the
scope of your request. I have decided to vary the original decision and refuse access
to 13 documents in full and refuse access to 1 document in part.
Regarding the document that I have refused access to in part, please note that the
rest of the material in this document is irrelevant to your request and has therefore
not been provided to you.
1 Please find attached a schedule detailing the access
decisions made regarding the documents within the scope of your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 23 August 2022
• the OAIC’s FOI decision FOIREQ22/00242 dated 23 September 2022 and the
accompanying schedule and documents
• your internal review request dated 4 October 2022
• the FOI Act, in particular ss 37(1)(a) and 47E(c) of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act to which regard must be had in performing a function or
exercising a power under the FOI Act (FOI Guidelines)
• consultation with line areas of the OAIC in relation to your request
• relevant case law
1 Document 10 on the attached schedule, containing 23 pages, only contains one paragraph on page 7
within the scope of your request. The rest of this document is unrelated to your request for
“…copy of
the reporting of the instances referred to in the statement given by the OAIC ‘There have been instances
where OAIC staff members have received threats of harm from members of the public’.”.
Searches undertaken
Section 24A of the FOI Act requires that all reasonable steps have been taken to
locate documents within scope of an FOI request.
As part of the internal review process, I reviewed the searches performed in the
course of processing your original request. I also conducted additional searches in an
effort to locate documents within the scope of your request.
The following line areas of the OAIC were contacted to conduct reasonable searches
for documents relevant to your request:
• OAIC Executive
• Dispute Resolution Branch
• Freedom of Information Branch
• Corporate Services
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s case management system -
Resolve
• the OAIC’s document storage system –
Content Manager
• the Outlook accounts of relevant staff members and line areas
In the course of processing this internal review, no further documents within the
scope of your request were able to be located, beyond those already identified in the
course of processing your original request.
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts previously undertaken, I am satisfied that a
reasonable search has been undertaken in response to your request and that no
further documents have been found in addition to those located in response to your
original request.
Irrelevant material (s 22)
I have found that 1 document that I have found to be exempt in part contains
irrelevant material, or material outside the scope of your request. As noted above, I
have found the other 13 documents are exempt in full, for the reasons discussed
below.
Section 22(1)(b)(i ) 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.
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 original FOI request you have requested a “…
copy of the reporting of the
instances referred to in the statement given by the OAIC ‘There have been instances
where OAIC staff members have received threats of harm from members of the
public’.”
Regarding the one document that I have refused access to in part, all other material
in this document is unrelated to reporting of threats of harm to OAIC staff.
Accordingly, I am satisfied that these material are irrelevant or outside the scope of
your FOI request in accordance with s 22(1)(a)(i ) of the FOI Act.
I note that in your internal review request you state the following:
“...the FOI Act creates an obligation on the foi agency to consider if access in another
form would allow some release.
This was not done. Some individual details may have some valid concerns, but this is
untrue for every part of such documents.”
The FOI Guidelines relevantly state the following at [3.95]
An agency or minister may refuse access to a document on the ground that it is
exempt. If so, the agency or minister must consider whether it would be reasonably
practicable to prepare an edited copy of the document for release to the applicant,
that is, a copy with relevant deletions (s 22).
At [3.97] – [3.98] the FOI Guidelines state:
The obligation to prepare an edited copy of a document so that it does not contain
exempt or irrelevant content is subject to the fol owing conditions:
it is possible for the agency or minister to prepare an edited copy of
the document (s 22(1)(b))
it is reasonably practicable to prepare an edited copy, having regard
to the nature and extent of the modification required, and the
resources available to modify the document (s 22(1)(c)), and
it is not apparent, from an applicant’s request or consultation with
the applicant, that the applicant would decline access to the edited
copy (s 22(1)(d)).
Applying those considerations, an agency or minister 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 to government information under the FOI Act 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.
In the course of processing this internal review, I have considered whether it would
be reasonably practicable to prepare an edited copy of the document pages within
scope of your request that I have held to be exempt or out of scope in full. I have had
regard to the nature and extent of the modification required, and the resources
available to modify the document, as per s 22(1)(c) of the FOI Act.
In light of the highly sensitive nature of the majority of the material the subject of
your request and the extent of the deletions required, all that would be left to be
released to you would be heavily redacted documents that would convey no
material of substance, and no material relevant to your FOI Act. I am therefore
satisfied that in this instance it would not be reasonably practicable to prepare an
edited copy of the documents the subject of this internal review and have therefore
not done so. In light of this, there are no documents to be provided to you.
Investigation of a breach of law (s 37(1)(a))
I have found 13 documents within the scope of your request exempt in full, and 1
document exempt in part under s 37(1)(a) of the FOI Act.
Section 37(1)(a) specifies that 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 will 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.
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 relevant material relates to an ongoing investigation concerning threats of harm
made to OAIC staff. The relevant events and investigation have not been publicised.
As the investigation is current, the disclosure of documents to the Right to Know
forum would likely have the ability to prejudice the investigation. As the original
decision-maker noted, the publication of the documents and information could
discourage parties from actively participating in the investigation, and therefore the
investigation would be prejudiced in this manner.
I therefore agree with the original decision-maker that the documents within the
scope of your request are exempt under s 37(1)(a) of the FOI Act.
Management and assessment of personnel (s 47E(c))
I have also found that, in the alternative, 13 documents within the scope of your
request conditionally exempt in full, and 1 document conditional y exempt in part
under s 47E(c) of the FOI Act.
Section 47E(c) of the FOI Act specifies that a document will be 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.
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.
The documents contain information that concerns threats of harm made against
OAIC staff members. I consider the material relevant to the management of
personnel, including the broader human resources policies and activities,
recruitment and occupational health and safety.
I agree with the original decision-maker’s finding that the material contained within
the relevant documents is for internal use only, specifical y for the management of
OAIC personnel, and that the material is not published on the OAIC’s website.
As was outlined to you in FOIREQ22/00190 and FOIREQ22/00242, 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 the FOI request is made via the Right to Know website,
where it is almost certain that all 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.
As an employer, the OAIC has obligations under the
Work Health and Safety Act 2011
to ensure, as far as is reasonably practicable, that risks to the health and safety of its
employees are minimised. I am of the view, for the reasons discussed above, that the
release of the documents and their publication to the Right to Know website would
prevent the OAIC from complying with its obligations under the
Work Health and
Safety Act 2011. It could therefore 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 with regard to statutory work
health and safety obligations.
I therefore find that the relevant documents concerning threats of harm to OAIC staff
conditional y exempt under s 47E(c) at this particular 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 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.
The explanation from Deputy President Forgie in the AAT case of Utopia Financial
Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 at [4] is relevant here:
… 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.
For the purposes of this internal review, I must consider whether the disclosure of
the documents at would be contrary to the public interest in order for the documents
to be conditional y exempt under s 47E(c) at this particular time.
Noting the non-exhaustive factors favouring disclosure, as listed in the FOI
Guidelines at paragraph [6.19]), I find that the only public interest factor favouring
disclosure is that disclosure would generally promote the objects of the FOI Act
through promoting access to government held information. No other factors are
relevant.
Having regard to the factors against disclosure in the FOI Guidelines at [6.22], I have
found that the factor against disclosure are as follows:
• Disclosure of the documents at issue 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.
• Disclosure of the documents at issue could negatively impact a criminal
investigation.
• Disclosure of the documents at issue could create a safety risk for OAIC staff
members.
I conclude that the factor against disclosure outweigh the factor in favour of
disclosure and it would therefore be contrary to the public interest to provide access
to the documents that are conditionally exempt under s 47E(c) of the FOI Act.
Conclusion
Please find attached a schedule of documents detailing the access decisions made
regarding the documents within the scope of your request.
Please see the following page for information about your review rights.
Yours sincerely,
Margaret Sui
Senior Lawyer
3 November 2022
If you disagree with my decision
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You have the right to seek review of this decision by the Information Commissioner.
(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.
It is the Information Commissioner's view that it wil 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.
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 10
Alternatively, you can post your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or apply by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online document 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 no further documents or information have been located in response to your
Internal Review request and any documents within scope of your request have been
found to exempt, there is no requirement for such materials to be published on the
OAIC’s disclosure log.