FOI LEX 45243 JH decision 260822.pdf

Our ref: FOI LEX 45243
Decision date: 26 August 2022
Applicant: JH
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear JH,
Freedom of Information Request: LEX 45243

1.  I refer to your correspondence received by the Department of Social Services
(the Department) on 27 July 2022, in which you requested access to ‘the
Incoming Government Briefs (IGBs) provided from the Department to its
respective Ministers since 21 May 2022’ under the Freedom of Information
Act 1982 (Cth) (FOI Act).

2.  The Department has identified three (3) documents relevant to your request
(the documents). These three documents are the IGBs prepared by the
Department after the federal election in May 2022, to address the change of
Government. The IGBs were prepared for the:

  Minister for Social Services
  Minister for the National Disability Insurance Scheme and Minister for
Government Services; and
  Minister for Housing and Homelessness.

3.  I have made a decision to grant you part access to the documents.

4.  The documents to which I am granting you part access, are listed in
Appendix 1, together with the relevant exemption provisions. I have
provided access to an edited copy of the documents in accordance with
section 22 of the FOI Act.
Authority to make decision

5.  I am an officer authorised by the Secretary of the Department to make
decisions about access to documents in the possession of the Department,
in accordance with subsection 23(1) of the FOI Act.
Background

6.  On 27 July 2022, you made the following request:

"I request the incoming government briefs provided from the Department
to its respective Ministers since 21 May 2022."

7.  The Department sought confirmation on 4 August 2022 that you wished to continue
with your request, given that redacted versions of the Briefs were available on the
Department’s Disclosure Log.

8.  On 5 August 2022, you confirmed that you wished to proceed with your request.

9.  On 10 August 2022, the Department formally acknowledged your request.

10. I have decided not to impose a charge in relation to this request, in
accordance with Regulation 8 of the Freedom of Information (Charges)
Regulations 2019.
Decision

11. We have identified three (3) documents that fall within the scope of your
request.

12.  I am satisfied that all documents relevant to your request have been
identified.

13. I have made a decision to grant you part access to the documents subject to
sections 47B, 47C, 47D, 47E, 47F and 47G of the FOI Act. My reasons for
this decision follow.
Material taken into account

14. When making my decision I considered the following:

  the terms of your original request;
  the types of information and documents that are in the Department’s
possession;
  consultation with relevant business areas on the documents falling within
scope of your request;
  courtesy consultation responses from the NDIA and Services Australia;
  third party consultation response; and
  the content of the documents that fall within the scope of your request.

15. I also particularly considered the following provisions of the FOI Act:

  sections  11  and  11A  which  give  the  Australian  community  a  legally
enforceable  right  to  access  information  held  by  the  Government  of  the
Commonwealth;
  section 3 which outlines the objects underpinning that right of access;
  section 11B to assess whether release of a conditionally exempt document
was contrary to the public interest;
  sections  47B,  47C,  47D,  47E,  47F  and  47G  of  the  FOI  Act  as  they  are
relevant to the document;
  section 22 which  requires the release of  exempt  documents in  an edited
form  in  certain  circumstances,  including  the  removal  of  information  that
would reasonably be regarded as exempt or irrelevant.

16. I have also considered the Guidelines issued by the Australian Information
Commissioner under section 93A of the FOI Act (FOI Guidelines).

17. Full extracts of the FOI Act provisions I have relied upon are in Appendix 2.
Reasons for decision

18. I have decided to grant part access to the documents within the scope of
your request in accordance with the following provisions of the FOI Act.

Public interest conditional exemption—deliberative processes (section 47C)

19. Section 47C of the FOI Act provides for the conditional exemption of
documents in circumstances where disclosure would disclose a deliberative
matter in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken
place, in the course of, or for the purposes of, the deliberative processes
involved in the functions of an agency, a Minister or the Government of the
Commonwealth.

20. Deliberative matter does not include purely factual material, however, where
material was gathered as a basis for intended deliberations, this may be
considered deliberative matter (see FOI Guidelines [6.67]).

21. Paragraph [6.59] of the FOI Guidelines provides that:

‘Deliberative process’ generally refers to the process of weighing up or

evaluating competing arguments or considerations or to thinking processes –
the process of reflection, for example, upon the wisdom and expediency of a
proposal, a particular decision or a course of action.

22. I note that the deliberative processes conditional exemption does not require
an assessment of whether harm would result from disclosure.

23. The documents subject to your request are the three (3) IGBs prepared by
the Department in response to the recent change of Government as a
result of the June 2022 federal election.

24. IGBs are an important part of the Government’s briefing process when a
change in Government occurs. The purpose of an IGB is to provide incoming
Ministers with an overview of a Department’s portfolio and to highlight key
challenges and matters for immediate attention. I consider that this briefing
process is deliberative in nature.

25. These three (3) IGB’s were prepared by various staff members of the
Department and signed off by the Department’s Secretary, Ray Griggs. They
provide extensive and detailed summaries relating to the functions,
expenditure and activities of the Department and other Commonwealth
Agencies, including Services Australia and the NDIS. This includes advice
on Government activities that are currently the subject of deliberation by the
Department, or by another Commonwealth or State agency.

26. Due to the very nature of a briefing document, the IGBs contain both factual
and deliberative material.

27. Having reviewed the material contained within the documents and the advice
of relevant Department internal business areas who assisted with the drafting
of the IGBs and the courtesy consultation responses from Services Australia
and the NDIS, I consider that they were prepared as part of a deliberative
process and that they contain deliberative material, namely the Department’s
advice, opinions and recommendations to its incoming Ministers.

28. I also note that the Information Commissioner and AAT decisions of Crowe
and Department of the Treasury [2013] AICmr 69 (29 August 2013), Dan
Conifer and Department of the Prime Minister and Cabinet (No. 2) (Freedom
of information) [2017] AICmr 117 (15 November 2017) and Dreyfus and
Secretary, Attorney-General's Department [2015] AATA 962 all support the

understanding that parts of IGBs will generally be appropriate for conditional
exemption under section 47C of the FOI Act.

29. Accordingly, I have made a decision to redact certain deliberative material
contained within the documents under section 47C of the FOI Act. I have also
made a decision to redact material that is both factual and deliberative
material, where is inextricably intertwined and cannot otherwise be separated
(see FOI Guidelines [6.73]).

30. As section 47C is a conditional exemption, its application also requires the
consideration of a public interest test, which I have discussed below.

31. Finally, I note that I have primarily relied on section 47C of the FOI Act to
redact material contained within the documents. However, where that
redacted material is both factual and deliberative in nature, I have also relied
on other provisions of the FOI Act (sections 47B, 47D, 47E, 47F and 47G)
which I have discussed further below.
Public interest conditional exemption—Commonwealth-State relations
(section 47B(a))

32. Section 47B(a) of the FOI Act provides for the conditional exemption of
documents where disclosure would or could reasonably be expected to cause
damage to relations between the Commonwealth and a State.

33. Paragraph 6.23 of the FOI Guidelines provides:

A decision maker may consider that disclosure would, or could reasonably be
expected to damage the working relations of the Commonwealth and one or
more States (s 47B(a)). ‘Working relations’ encompass all interactions of the
Commonwealth and the States,23 from formal Commonwealth-State
consultation processes such as the Council of Australian Governments
through to any working arrangements between agencies undertaken as part
of their day to day functions.

34. Paragraph 6.34 of the FOI Guidelines further provides that:

Decision makers may also need to consider future working relationships
where disclosure may, for example:  impair or prejudice the future flow of
information  adversely affect Commonwealth-State police operations or

investigations  adversely affect the development of future Commonwealth-
State projects.

35. Parts of the documents contain information relating to current projects and
agreements involving the Commonwealth and other State Government
entities.

36. Relevant business areas of the Department were consulted on the potential
release of this material and provided advice that the disclosure of the
material would likely damage current and future relationships between the
Department and these State Government entities and that disclosure would
likely adversely affect the progression of projects currently under
development and review.

37. I further understand that part of the success of these projects is the free flow
of information between the Commonwealth and State and I consider that the
release of this material at this point in time, may impair the future flow of
similar information to the Commonwealth.

38. Accordingly, I have found that this material meets the criteria for exemption
under section 47B(a) of the FOI Act and have made the decision to redact this
material.

39. As section 47B is a conditional exemption, its application also requires the
consideration of a public interest test, which I have discussed below.
Public interest conditional exemption—financial or property interests
of the Commonwealth (section 47D)

40. Section 47D of the FOI Act provides a conditional exemption for documents
where disclosure would have a substantial adverse effect on the financial and
property interests of the Commonwealth or of an agency.

41. Paragraph 6.90 of the FOI Guidelines provides:

The financial or property interests of the Commonwealth or an agency may
relate to assets, expenditure or revenue-generating activities…

42. For this conditional exemption to apply, the potential effect of disclosure must

be both substantial and adverse.

43. Parts of the documents contain detailed information about the finances of the
Department and, more broadly, the Commonwealth. This includes
breakdowns of unprocessed debt’s known as the ‘Debt Book’ and specific
breakdowns of inter-agency expenditure. I understand this specific material is
not currently publicly available.

44. I note that at various times during the year, Agencies are required to report
Commonwealth financial information (e.g. in Agency Annual Report and in
response to Senate Estimate enquiries). Outside of these times of publication,
it is important that Agencies are able to swiftly brief relevant Ministers on
point-in-time financial information. I note that figures relating to unprocessed
debts are fluid and can change with time and as a result of further enquiries or
the processing of payments owed to the Commonwealth. I consider that the
release of such financial material would likely have a substantial adverse
effect on the financial interests of the Commonwealth.

45. I have also had regard to the Information Commissioner decision of Briggs
and Department of the Treasury (No.3) [2012] AICmr 22 (20 August 2012),
which I consider to be relevant to the disclosure of the Department’s debt
book information at this point in time. At paragraphs [14] and [15] of the
decision, the Information Commissioner provides:

[14] As the Treasury advised Mr Briggs in its reasons for decision, the third
paragraph of document 13 contains details about ‘provisions made in the
contingency reserve for a particular Budget measure’. The Treasury also
states—and I can accept—that, ‘[w]hile it is publically known that the
Government has allocated a capped amount in the Contingency Reserve to
support delivery of the measure, details of the amount placed in reserve are
not publically known pending the conclusion of negotiations with key
stakeholders’.

[15] I agree with the Treasury that the disclosure of this information at this
time would have a substantial adverse effect on the financial interest of the
Commonwealth.

46. Accordingly, I have found that this material meets the criteria for exemption
under section 47D of the FOI Act and have made the decision to redact this
material.

47. As section 47D is a conditional exemption, its application also requires the

consideration of a public interest test, which I have discussed below.

Public interest conditional exemption--certain operations of agencies
(section 47E(d))

48. Section 47E(d) provides for the conditional exemption of documents in
circumstances where disclosure would, or could reasonably be expected
to, have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.

49. As discussed above, IGBs are an important process of new Government and
enable the efficient and effective briefing of new Ministers. To ensure that
incoming Ministers are briefed appropriately, it is important that the
Department is able to provide full and proper advice on its relevant functions
and activities.

50. Where the IGBs contain intertwined factual and deliberative material, it is
often the result of the author providing factual analysis or drawing conclusions
as to the reasons why a particular policy or spending activity has or has not
proceeded as planned, or why a particular group of the community has or has
not used Commonwealth initiatives or services as expected.

51. The IGBs also contain information relating to the functions and activities of
other Agencies including Services Australia and the NDIA and matters relating
to Commonwealth staffing and appointments which are currently under
deliberation or discussion.

52. I consider that the disclosure of this material would inhibit the ability of the
Department and other Agencies (including Services Australia and the NDIA)
to provide this level of advice or commentary, in amongst factual material
which supports those opinions. I consider that this would ultimately have a
substantial adverse effect on Agency operations, namely the ability to provide
full and proper briefings to its incoming Ministers.

53. Accordingly, I have made a decision to redact parts of the document bundle in
accordance with section 47E(d) of the FOI Act. As section 47E(d) is a
conditional exemption, its application also requires the consideration of a
public interest test, which I have discussed below.

Public interest conditional exemptions--personal privacy (section 47F)

54. Section 4 of the FOI Act confirms that personal information has the same
meaning as is defined in section 6 of the Privacy Act 1988 (Privacy Act),
which is:
...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;

(b)
whether the information or opinion is recorded in a material form or
not.

55. Section 47F(2) of the FOI Act provides the following factors that an FOI
decision maker should take into account when considering the application of
this conditional exemption provision:

(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;
and

(d)
any other matters the decision maker considers relevant.

56. I have identified material within the documents that discloses the personal
information of third parties or could otherwise reasonably identify third party
members of the Australian community.

57. I am satisfied that this material meets the definition of personal information for
the purposes of both the FOI Act and Privacy Act and that it would be
unreasonable to release this material at this time, where it is currently under
deliberation and is not otherwise in the public domain. I further note that the
Department has obligations to protect the privacy of future, current and past
staff.

58. Accordingly, I have made a decision to redact this material under section
47F of the FOI Act. As section 47F is a conditional exemption, its
application also requires the consideration of the public interest test, which I
have discussed below.
Public interest conditional exemptions—business (section 47G(1)(a))

59. Business information is conditionally exempt and can be redacted
under section 47G(1)(a) of the FOI Act:

(1)  A document is conditionally exempt if its disclosure under this Act would
disclose information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs
of an organisation or undertaking, in a case in which the disclosure of the
information:

(a)  would, or could reasonably be expected to, unreasonably affect
that person adversely in respect of his or her lawful business or
professional affairs or that organisation or undertaking in respect of its
lawful business, commercial or financial affairs; or …

60. Information about the projects of a third-party business and service
provider are contained in the document bundle. I consider that this material
meets the definition of business information for the purposes of section
47G(1) of the FOI Act.
Public interest conditional exemptions—business (section 47G(1)(a))

61. Section 47G(1)(a) of the FOI Act provides for the redaction of business
information as follows:

(1)  A document is conditionally exempt if its disclosure under this Act would
disclose information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs
of an organisation or undertaking, in a case in which the disclosure of the
information:

(a)  would, or could reasonably be expected to, unreasonably affect
that person adversely in respect of his or her lawful business or
professional affairs or that organisation or undertaking in respect of its

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lawful business, commercial or financial affairs; or …

62. The document bundle contains information about the project of a third-party
business and service provider. I consider that this material meets the
definition of business information for the purposes of section 47G(1) of the
FOI Act.

63. Having consulted with this business, I am also satisfied that the release of this
material could reasonably be expected to adversely impact that third party’s
commercial and business affairs. I understand that much of this material is not
publicly known and that there is significant concern that disclosure could lead
to competitors launching similar project ideas, which would ultimately
adversely affect the efficacy of the project.

64. Accordingly, I have made a decision to redact parts of the document bundle in
accordance with section 47G(1)(a) of the FOI Act. As section 47G is a
conditional exemption, its application also requires the consideration of a
public interest test, which I have discussed below.

Application of the public interest test – sections 47B, 47C, 47D, 47E,
47F and 47G

65. Where material is identified as conditionally exempt, section 11A(5) provides
that an agency must give the person access to the document unless (in the
circumstances) access to the document would, on balance, be contrary to the
public interest.

66. In order to assess whether release of the conditionally exempt material would
be contrary to the public interest, I have considered that disclosure would
promote the objects of the FOI Act by providing access to government held
information.

67. I also considered the following factors which do not favour disclosure:

(a)
disclosure of the deliberative material contained within the documents
would likely have a demeaning effect on the value of the advice
provided in these and future IGBs;

(b)
disclosure of the deliberative material contained within the documents

11

would likely adversely affect or limit the extent that full and frank advice
is included in future IGBs;

(c)
disclosure could reasonably be expected to prejudice Commonwealth
and state relations;

(d)
disclosure could reasonably be expected to prejudice the success of
projects currently underway between the Department and other State
and Commonwealth agencies;

(e)
disclosure could reasonably be expected to prejudice the financial or
property interests of the Commonwealth;

(f)
disclosure could prejudice a person’s right to privacy;

(g)
disclosure could reasonably be expected to adversely affect the proper and
efficient conduct of the operations of the Department and other Commonwealth
Agencies, namely the full and proper briefing of its incoming ministers; and

(h)
disclosure could be expected to adversely affect the commercial and
business affairs of a third-party business and service provider who is
currently engaging with the Department.

68. I also note that the public interest factors against disclosure of certain
deliberative material contained within IGBs more generally was discussed at
paragraph [107] of the decision in Dreyfus and Secretary, Attorney-General's
Department [2015] AATA 962 , where Her Honour, Justice Bennett observed
that:
The combination of factors against release in the public interest include the
nature of an IGB to a new Minister in a newly elected incoming Government,
the evidence … explaining the importance of maintaining the confidentiality of
not only the content of this IGB but also on the preparation of future IGBs, the
need for continuity of frankness, candour and completeness in the advice and
commentary contained in IGBs, the extent of deliberative matter contained in
such a document and the impact on the preparation of future IGBs if access
were granted … [The] context requires preparation of the document
unhindered by apprehension that the IGB, prepared as a confidential brief to
an incoming new Attorney-General, will be released. These factors were
relevant when the IGB was being prepared and remain relevant today.

69. I am satisfied that I have not considered any of the listed irrelevant factors for
consideration, as set out in section 11B(4) of the FOI Act.

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70. In balancing the public interest factors for and against disclosure, I have
placed greater weight on the factors against disclosure and am satisfied that
the public interest is to withhold the exempt material.
Delete exempt or irrelevant material from documents and provide
access to edited copies (section 22)

71. As explained above, some of the documents contain material which I have
decided to redact under FOI Act exemption provisions.

72. In accordance with section 22 of the FOI Act, I have prepared the documents
for release by removing the exempt material.
Release of documents

73. The documents with redactions applied in accordance with sections 47B, 47C,
47D, 47E, 47F and 47G of the FOI Act are enclosed.

Disclosure Log Decision

74. I am of the view that details of your request should be made available on the
Department’s FOI Disclosure Log. Accordingly, details of your request will be
published on the Department’s FOI Disclosure Log.

75. Please note that the Department does not publish details of FOI applicants, it
only publishes details of the FOI request and the documents released in
response to the request.

Your rights of review

76. Information about your rights to seek a review of this decision are at
Attachment A.

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77. Should you have any enquiries concerning this matter please do not hesitate
to contact the FOI team by email at xxx@xxx.xxx.xx.

Yours sincerely

Leah Kennedy
Deputy Chief Counsel
Legal Services Group

26 August 2022

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Appendix 1

LEX 45243

Document  No. of
Exemption
Date
Description
No.
pages
provision

IGB to Minister for Social
Sections 47B,
176
47C, 47D,
1
May 2022  Services
47E, 47F,
47G

IGB to Minister for the
Sections 47B,
2
119
  May 2022
47C, 47D,
National Disability
47E, 47F,
Insurance Scheme and
47G
Minister for Government
Services



IGB to Minister for
Sections 47B,
  3
  63
  May 2022
47C, 47D,
Housing and
47E and 47F
Homelessness

15

Appendix 2
Schedule of relevant provisions used in making this decision FOI LEX 45243

Excerpts from the Freedom of Information Act 1982 (Cth)

3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information
held by the Government of the Commonwealth or the Government of Norfolk Island,
by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative
democracy by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to
promoting better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that
information held by the Government is to be managed for public purposes, and is a
national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access
to information, promptly and at the lowest reasonable cost.

11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.

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).
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.

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Requests for access (as related to the requirements for requests)
Persons may request access
(1)
Subject to section 15A, a person who wishes to obtain access to a document of an
agency or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa)
state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the Minister, to
identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A)
The request must be sent to the agency or Minister. The request may be sent in any
of the following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister,
at the address of any central or regional office of the agency or Minister
specified in a current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by
the agency or Minister.

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.
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.

23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may
be made, on behalf of the agency, by the responsible Minister or the principal officer
of the agency or, subject to the regulations, by an officer of the agency acting within
the scope of authority exercisable by him or her in accordance with arrangements
approved by the responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or
body that is specified in Schedule 1, may be made on behalf of that court, tribunal,
authority or body by the principal officer of that court, tribunal, authority or body or,
subject to the regulations, by an officer of that court, tribunal, authority or body acting
within the scope of authority exercisable by him or her in accordance with
arrangements approved by the principal officer of that court, tribunal, authority or
body.

26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant
access to a document in accordance with the request or deferring provision of access
to a document, the decision-maker shall cause the applicant to be given notice in
writing of the decision, and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material
on which those findings were based, and state the reasons for the decision;
and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into
account in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would
be contrary to the public interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information
Commissioner in relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in
subparagraphs (i) and (ii); including (where applicable) particulars of
the manner in which an application for internal review (Part VI) and
IC review (Part VII) may be made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply
to a decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a
nature that its inclusion in a document of an agency would cause that document to be an
exempt document.

47B
Public interest conditional exemptions--Commonwealth-State relations etc.

A document is conditionally exempt if disclosure of the document under this Act:
(a)
would, or could reasonably be expected to, cause damage to relations
between the Commonwealth and a State;
(b)
would divulge information or matter communicated in confidence by or on
behalf of the Government of a State or an authority of a State, to the
Government of the Commonwealth, to an authority of the Commonwealth or
to a person receiving the communication on behalf of the Commonwealth or
of an authority of the Commonwealth; or
(d)
would divulge information or matter communicated in confidence by or on
behalf of a Norfolk Island authority, to the Government of the
Commonwealth, to an authority of the Commonwealth or to a person
receiving the communication on behalf of the Commonwealth or an
authority of the Commonwealth; or
(f)
would  divulge  information  or  matter  communicated  in  confidence  by  or  on
behalf of the Government of a State or an authority of a State, to a Norfolk
Island authority or to a person receiving the communication on behalf of
a Norfolk Island authority.

Note: Access must generally be given to a conditionally exempt document unless it would be contrary
to the public interest (see section 11A).

47C
Public interest conditional exemptions—deliberative processes
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would disclose
matter (deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation
that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth; or
(d)
the Government of Norfolk Island.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests)
of scientific or technical experts, whether employed within an agency or not,
including reports expressing the opinions of such experts on scientific or
technical matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given
in the exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).

47D
Public interest conditional exemptions—financial or property interests of the
Commonwealth
A document is conditionally exempt if its disclosure under this Act would have a substantial
adverse effect on the financial or property interests of the Commonwealth or 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).

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:
(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, by Norfolk Island 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).

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.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the
agency, or an official document of the Minister, that contains information
concerning the applicant, being information that was provided by a qualified
person acting in his or her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case
may be) that the disclosure of the information to the applicant might be
detrimental to the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be
given to the applicant, direct that access to the document, so far as it contains that
information, is not to be given to the applicant but is to be given instead to a qualified
person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of
qualified person in subsection (7), as the first-mentioned qualified person;
and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may
be exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an
occupation that involves the provision of care for the physical or mental health of
people or for their well-being, and, without limiting the generality of the foregoing,
includes any of the following:
(a)
a medical practitioner;
(b)
a psychiatrist;

(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).

47G
Public interest conditional exemptions—business
(1)
A document is conditionally exempt if its disclosure under this Act would
disclose information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs of
an organisation or undertaking, in a case in which the disclosure of the
information:
(a)
would, or could reasonably be expected to, unreasonably affect that
person adversely in respect of his or her lawful business or professional affairs or
that organisation or undertaking in respect of its lawful business, commercial or
financial affairs; or
(b)
could reasonably be expected to prejudice the future supply of information
to the Commonwealth, Norfolk Island or an agency for the purpose of the
administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency.
(2)
Subsection (1) does not apply to trade secrets or other information to
which section 47 applies.
(3)
Subsection (1) does not have effect in relation to a request by a person
for access to a document:
(a)
by reason only of the inclusion in the document of information concerning
that person in respect of his or her business or professional affairs; or
(b)
by reason only of the inclusion in the document of information concerning
the business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information
concerning the business, commercial or financial affairs of an organisation
where the person making the request is the organisation or a person acting
on behalf of the organisation.
(4)
A reference in this section to an undertaking includes a reference to an
undertaking that is carried on by, or by an authority of, the Commonwealth,
Norfolk Island or a State or by a local government authority.
(5)
For the purposes of subsection (1), information is not taken to concern a
person in respect of the person’s professional affairs merely because it is
information concerning the person’s status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary
to the public interest (see section 11A)