Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
I have identified one document within the scope of your request. The document was created
under s 17 of the FOI Act and it contains document property information col ected from the
OAIC’s IT systems.
I have decided to refuse access to the document in ful .
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 5 November 2022;
• the FOI Act, in particular s47E(d);
• 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); and
• relevant caselaw.
Requests involving the use of computers – s 17
Under s 17 of the FOI Act, if an FOI request is made for a document that could be produced by
using a computer ordinarily available to the agency for retrieving or col ating stored
information, an agency is required to deal with the request as if it was a request for written
documents to which the FOI Act applies.
The FOI Guidelines at [3.204] explain that s 17 requires an agency to produce a written
document of information that is stored electronical y and not in a discrete written form, if it
does not appear from the request that the applicant wishes to be provided with a computer
tape or disk on which the information is recorded. The obligation to produce a written
document arises if:
The agency could produce a written document containing the information by using a:
• ‘computer or other equipment that is ordinarily available’ to the agency
for retrieving or collating stored information (s 17(1)(c)(i)), or making a
transcript from a sound recording (s 17(1)(c)(ii)); and
• producing a written document would not substantially and unreasonably
divert the resources of the agency from its other operations (s 17(2)).
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If those conditions are met, the FOI Act applies as if the applicant had requested access to the
written document and it was already in the agency’s possession.
Regarding your request, you have requested ‘
the file properties of each of the 14 documents
listed in the schedule of documents given in FOIREQ22/00321’. This was information that was
not available in a discrete form but was able to be produced in a written document through
the use of a computer.
In light of this, Officers in the OAIC Legal Services team created a document under s 17 in
response to your request. I have decided to refuse access to that document in full.
Certain operations of agencies exemption- section 47E(d)
I have decided to refuse access in ful to 1 document that was created under s 17 of the FOI Act
under section 47E(d) of the FOI Act.
The material within this document that I have found to be conditional y exempt is material
disclosing:
1. Properties concerning the location of the files,
2. Properties concerning the size of the files and
3. Properties concerning the created, modified or access date of the files
Under s 47E(d) of the FOI Act, a document is conditional y 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.
Additional y, 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’.
OAIC File Location Properties
The OAIC material that I have held to be exempt under section 47E(d) of the FOI Act in this
matter is material concerning the file location properties of the 14 documents in question
within the OAIC’s IT system.
The OAIC col ects and stores a range of personal and financial information about members of
the public. The location properties of a file contain information about the OAIC’s IT system
(including the network location and storage of information). I consider that disclosure of this
information could compromise the safety and security of the storage of the information held
by the OAIC. The impact of any compromise to the safety and security of the OAIC’s
information systems would result in a serious adverse impact on the functions and
responsibilities of the OAIC.
I therefore consider that the disclosure of the location properties (from the OAIC’s computer
system) of the 14 documents in question could reasonably be expected to have a substantial
adverse effect on the proper and efficient conduct of the OAIC’s operations. I have decided
that the location properties of the documents are conditional y exempt from disclosure under
section 47E(d) of the FOI Act.
Size and details relating to the documents
In addition to the file location properties, the material I have held to be exempt under section
47E(d), also contains material concerning the size and details relating to the documents
(including date created and accessed).
The 14 documents in question contain material for which access was refused in ful in
FOIREQ22/00242 on 23 September 2022. The decision in FOIREQ22/00242 to refuse access to
the documents varied upon internal review (FOIREQ22/00321) on 3 November 2022. Namely,
the decision maker decided to vary the original decision and refuse access to 13 documents in
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full and refuse access to 1 document in part. As was explained to you in FOIREQ22/00321, the
documents contain material pertaining threats of harm made against OAIC staff members. I
agree with the findings of the decision maker 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.
I note that the document properties sought in your FOI request include the location, size and
creation, modification and access date of the files. I am of the view that file location properties
form a crucial part of the documents in question, insofar as they indirectly disclose
information about the content and material within each file. I consider that the release of this
information may reveal how the OAIC manages security incidents and could have a substantial
and unreasonable impact on the management of security incidents.
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.
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.
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
[6.19]), I find that the only public interest factor favouring disclosure is that disclosure would
general y 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 factors against disclosure are:
• Disclosure of the document at issue could reasonably be expected to prejudice and
have an adverse impact on the OAIC’s functions and responsibilities in safely and
securely maintaining OAIC’s information systems
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• Disclose of the document at issue, could have a substantial and unreasonable impact
on the management of security incidents at the OAIC.
I conclude that the factors 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 conditional y exempt under s 47E(d) of the FOI Act.
Conclusion
Please find attached a schedule of documents detailing the access decisions made regarding
the document within the scope of your request.
Please see the fol owing page for information about your review rights.
Yours sincerely
Alessia Mercuri
Lawyer
5 December 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 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:
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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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