Our reference: FOIREQ22/00271
Attention:  Julie
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00271
Dear Julie
I am writing to advise you of my decision in response to your application for internal
made on 10 September 2022 of the FOI decision in FOIREQ22/00198.
Original FOI Decision (FOIREQ22/00198)
On 27 July 2022, you applied to the OAIC for access to the following:
“I request copy of al  s 15AB and s 15AC requests received by the OAIC from DVA in the
period 1 June to 27 July 2022.
Personal information of private individuals (not Commonwealth employees and
contractors) is irrelevant.”
On 29 July 2022 the OAIC wrote to you to ask if you were willing to exclude the names
of private businesses from the scope of this request, for example, where the FOI
request subject to the s15AB and s15AC applications from the Department of
Veterans’ Affairs (the Department) were made by a private business.
In an email to the OAIC, received on 1 August 2022 you stated:
“You requested that I advise whether I am wil ing to exclude 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).
Yes, you may.”
On 26 August 2022, the OAIC made a decision in relation to your request. 71
documents were identified as being within the scope of your request. You were
granted access to 63 documents in part and refused access to 8 documents in full.
Documents were held to be exempt in part under s 47E(c) and s 47E(d) of the FOI Act.
1300 363 992
T +61 2 9284 9749  GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666  Sydney NSW 2001  ABN 85 249 230 937

Internal review
On 10 September 2022 you sought internal review of this decision stating:
“I am writing to request an internal review of Office of the Australian Information
Commissioner's handling of my FOI request FOIREQ22/00198 'Section 15AB and Section
15AC requests from DVA'…”
Material taken into account
In making my internal review decision, I have had regard to the following:
•  your original freedom of information request FOIREQ22/00198 dated 27
July 2022
•  the decision of the delegate dated 26 August 2022 the subject of this
internal review and accompanying schedule and documents
•  your request for internal review dated 10 September 2022
•  the FOI Act, in particular sections 22 and 47E(d)
•  relevant case law
•  the FOI Guidelines issued by the Australian Information Commissioner
under s 93A of the FOI Act.
Internal Review Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.

An internal review decision is a ‘fresh decision’ made by a person other than the
person who made the original decision (section 54C of the Freedom of Information Act
1982 (the FOI Act)). I have had regard to, but not relied on, the delegate’s original
Freedom of Information (FOI) decision.

I have identified 71 documents with the scope of your request. I have decided to
release all 71 documents in part. In my internal review decision, I have decided to
vary the material exempted from release. The additional material I have decided to
release to you is as follows:
•  information regarding dates throughout all 71 documents, and
•  8 documents in part which relate to extension of time requests that are
now finalised.

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In the original decision, I note that 10 documents were found to be exempt in part
under s 47E(c) of the FOI Act. This exempt material was as follows:
•  the surnames and direct contact details (such as email addresses and
mobile numbers) of DVA staff members
In this internal review, this exemption has not been maintained, and this material is
now only held to be exempt under s 47E(d). Please note that for the 8 additional
documents that were previously exempted in full, I have provided an additional
document bundle and schedule, to reduce confusion. There are therefore two
schedules being released to you in this internal review. Details of my decision are
included in the attached schedules and the reasons for my decision are set out
below.
Irrelevant material (s 22)
I have found that all documents within the scope of your request 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 excluded as irrelevant from your request personal
information of private individuals and organisations. Consistent with your request, I
have deleted this irrelevant material from your request under s 22 of the FOI Act. In
addition, a number of documents within the scope of your request contain material
which is exempt from disclosure. On this basis, I have prepared the documents for
release by removing exempt material in accordance with s 22 of the FOI Act.
Please note that in the original decision the subject of this internal review request,
agency reference numbers were held to be exempt under s 47E(d). In this internal
review I have decided that these are out of scope under s 22 of the FOI Act, by virtue
of them being the personal information of private individuals/organisations (not
Commonwealth employees and contractors) which you have stated is irrelevant.
Certain operations of agencies exemption – s 47E(d)
I have found 71 documents exempt in part under s 47E(d) of the FOI Act.
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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 is not related to you
•  the Department staff surnames
•  direct email addresses of the Department staff, and
•  direct mobile phone numbers of the Department staff.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its 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.
The FOI Guidelines provide:
-  at [6.101] 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.
-  at [6.103] An agency cannot merely assert that an effect would occur fol owing
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’.
Material contained in and attached to extension of time applications submitted by
the Department, that is not related to you

In processing the FOI request the subject of this review, the OAIC undertook courtesy
consultation with the Department, which 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 substantially and adversely
affect the proper and efficient operations of the OAIC. Therefore, I have decided to
give you access to 71 documents in part.
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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 by relevant parties in the confidentiality of the
investigation process.

Noting that all the extension of time applications within the scope of your request
have been finalised at the time of this internal review, 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 material relating to specific FOI requests made by individuals
who are not associated with you, as well as the sensitive parts of the Department’s
submissions to the OAIC that are particular to these FOI requests, and are particular
to the extension of time applications that are unrelated 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 the OAIC’s assessment
process regarding extension of time requests. This is because 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, this is likely to adversely affect
the quality of the information received by the OAIC in making an assessment for
extension of time applications in the future.

The disclosure of such information to third parties, who are not a party to these
reviews and investigations, of the material within these matters, could significantly
deter parties from providing this information to the OAIC in the future, or impact the
openness and frankness of their submissions to the OAIC.As such, I consider the
release of information 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.
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Surnames, Direct Email Addresses and Mobile Phone Numbers of the Department
Staff

In the IC Review decision ‘LY’ and Commonwealth Ombudsman (Freedom of
information) [2017] AICmr 68 (17 July 2017)  at [24] 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’ applies to the material in this case.

From the documents at issue, it appears that in general outgoing correspondence to
members of the public, it is the practice of the Department to provide a general
contact phone number and a general email address as the main point of contact for
the Department. Due to the nature of the work of the Department, I consider that if
the relevant material is disclosed, this will allow contact to be made to the individual
officer of the Department 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. I have reached this conclusion
based on my examination of the relevant material, the fact that the surnames of
Department officers were embedded in their direct contact email address, that their
mobile phone numbers would provide direct access, and the reasoning in ‘LY’ which I
consider is applicable here.
Therefore, I am satisfied that the surnames, direct email addresses and mobile
phone numbers of the Department staff members are conditionally exempt from
disclosure under s 47E(d) of the FOI Act.
Regarding the additional material released to you, I am satisfied that providing this
material to you will not have a substantial adverse effect on the proper and efficient
conduct of the operations of the OAIC.
Public interest (s 11A(5))
An agency cannot refuse access to conditionally exempt documents unless giving
access would, on balance, be contrary to the public interest (s 11A(5) FOI Act). 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 this case, I must
consider whether disclosure of the documents at this time would be contrary to the
public interest.
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The FOI Guidelines provide a non-exhaustive list of factors favouring disclosure (see
[6.19]). I consider 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.
Against these factors, I must balance the factors against disclosure. The FOI Act does
not specify factors against disclosure, however the FOI Guidelines at paragraph [6.22]
provides a non-exhaustive list of factors against disclosure.
I consider that the relevant factors against disclosure in this instance are as follows:
•  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, and

•  disclosure of the mobile phone numbers, direct email addresses and
surnames of the Department’s staff could reasonably be expected to
prejudice the efficient operations of the Department’s functions in
maintaining their existing contact arrangements with members of the public.
I have decided that at this time, giving you full access to the documents, which I have
found to be conditionally exempt under s 47E(d) of the FOI Act, would, on balance,
be contrary to the public interest.
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 it would be unreasonable to publish.
The documents I have decided to release to you contains exempt material. As a
result, an edited version of the documents will be published on our disclosure log
within 10 days of providing you access.
Yours sincerely
Jian Liu
Acting Director, Legal
10 October 2022
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If you disagree with my decision
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
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. 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.
s 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_
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@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 xxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
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Document Outline