FOIREQ22 00198 Decision Finalised.pdf

Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
•  your freedom of information request dated 27 June 2022;
•  the documents at issue;
•  the FOI Act, in particular ss 22, 47E(c) and 47E(d);
•  the guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act (the FOI Guidelines, and;
•  relevant case law
Irrelevant material – s 22
I have found material in 63 documents to contain irrelevant material, or material
outside the scope of your request.
Section 22(1)(b)(ii) 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 FOI request, you specified that the following material was irrelevant to your
request:
Personal information of private individuals (not Commonwealth employees and
contractors) is irrelevant.
You later extended the scope of irrelevant material to include:
…names of private businesses from the scope of this request (for example,
where the FOI request subject to the 15AB and s 15AC applications from DVA was
made by a private business).
I have reviewed all documents located by the relevant line area. These documents
contain information you have identified as irrelevant to your request. Accordingly, I
2

have found that this material is irrelevant to your request and it has been deleted
under s 22 of the FOIA Act.
Management and assessment of personnel – s 47E(c)
I have found material contained in 10 documents that are exempt under section
47E(c) of the FOI Act. Based on my examination of the relevant document, the
exempt material can be described as:
•  the surnames and direct contact details (such as email addresses and mobile
numbers) of DVA staff members
Under s 47E(c) 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
management or assessment of personnel by an agency.
Section 47E(c) 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:
…
(c) have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth or 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.
During the course of processing this FOI request, the OAIC undertook courtesy
consultation with the department, who objected to the disclosure of this material.
Based on the material before me at this time, I am satisfied that the disclosure of the
surnames and direct contact details of the Department’s staff members would, or
could reasonably be expected to have a substantial and adverse effect to the
3

Department’s ability to manage its personnel, including its broader human resources
policies and activities towards occupational health and safety.
In my view, this material is conditionally exempt under s 47E(c) of the FOI Act. I wil
consider public interest factors in the later parts of my decision.
Certain operations of agencies exemption – s 47E(d)
I find 8 documents exempt in ful  and 63 documents exempt in part 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 allegation 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 material and documents that I have found to be exempt under s 47E(d) of the FOI
Act can be described as:
•  Material contained in and attached to extension of time applications
submitted by the Department, that are not related to you
•  Department’s staff surnames,
4

•  direct email addresses of its staff,
•  direct mobile phone numbers of the Department’s staff
Material contained in and attached to extension of time applications submitted by
the Department, that are not related to you
During the course of processing this FOI request, the OAIC undertook courtesy
consultation with the department, who objected to the disclosure of this material.
Based on the information before me at this time, I am satisfied that disclosure of
some of this material would, or could be expected to substantial y and adversely
affect the proper and efficient operations of the OAIC. Therefore, I have decided to
give you access to 63 documents in part and exempt access to 8 documents.
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
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 extension of time request matters.
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.
The documents which I have decided to refuse you access in full (8 in total) relate to
current and open extension of time applications that are being considered by the
OAIC. In my view, until such time that the parties to these applications have had the
opportunity to make submissions regarding the applications, and have been advised
of the outcome of the application, disclosure of these documents to a third party, via
a public forum on Right to Know, would, or could reasonably be expected to have a
substantial and adverse effect on the OAIC’s proper and efficient conduct of
determining extension of time applications. Parties to an extension of time
application have an expectation that the application will be considered by the OAIC
and conducted in a private manner.
Nevertheless, where the extension of time application have been finalised, I have
decided to give you access to some material contained in these applications which
the Department lodged with the OAIC. I have found only parts of these applications
exempt under s 47E(d), comprising the materials relating to specific FOI requests
made by individuals who are not associated with you, sensitive parts of the
5

Department’s submissions to the OAIC that are particular to these FOI requests, and
are particular to the EOT application that are not related to you. While these
applications have been finalised, I am of the view that the release of this material at
this time to a third party who is not associated with the matter, via a public forum on
Right to Know would negatively impact on the OAIC’s assessment process regarding
EOT requests if parties cannot be confident that the information they provide to the
OAIC for the purposes of making an administrative decision will be kept confidential
and adversely affect the quality of the information received by the OAIC in making an
assessment for extension of time in the future.
As such, I consider the release of that is not currently in the public domain would
have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC.
Surnames, Direct Email Addresses and Mobile Phone Numbers of Department of
Veterans’ Affairs Staff
In the IC Review decision on ‘LY’ and Commonwealth Ombudsman (Freedom of
information) [2017] AICmr 68 (17 July 2017) the Commissioner accepted that ‘giving
the applicant access to the contact details would have a substantial adverse effect
on the proper and efficient conduct of the Ombudsman’s operations under the
Ombudsman Act 1976’. Having considered the material in this case, I consider the
reasoning in ‘LY’ is equal y applicable to the material in this case.
From the documents at issue, I note that it appears in general outgoing
correspondences to members of the public, the Department would provide a general
contact phone number and a general email address as the main point of contact for
the Department. Based on my examination of the relevant material, noting that the
surnames of Department officers were embedded in their direct contact email
address, that the mobile phone numbers would provide direct access, and the
reasoning in ‘LY’ which I consider is applicable here, I am satisfied that due to the
nature of the work of the Department of Veterans Affairs, if the relevant material is
disclosed which will allow contact to be made to the individual officer rather than
through the established contact arrangements, this would, or could reasonably be
expected to substantial y and adversely affect the efficient operations of the
Department’s functions.
Therefore, I am satisfied that the surnames, direct email addresses and mobile
phone numbers of Department of Veterans’ Affairs’ staff members are conditionally
exempt from disclosure under s 47E(d) of the FOI Act.
6

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.
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:1
… 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 of material relating to extension of time request matters could
reasonably be expected to prejudice an agency’s ability to obtain confidential
information’.
•  disclosure of material relating to extension of time request matters could
reasonably be expected to prejudice the proper and efficient conduct of the
extension of time request review functions of the OAIC.

1 Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
7

•  disclosure of the mobile phone numbers, direct email addresses and
surnames of DVA staff could reasonably be expected to prejudice the
Department’s ability to manage its personnel.
•  disclosure of the mobile phone numbers, direct email addresses and
surnames of DVA staff could reasonably be expected to prejudice the efficient
operations of the Department’s functions and maintaining the existing
contact arrangements with members of the public.

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
26 August 2022



8

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.
9

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.
The documents I have decided to release to you contains exempt material and
therefore an edited version of the documents will be published on our disclosure log
after being released to you.

10