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 33 documents within the scope of your request. I have decided to
give you access to 33 documents in part.
Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 1 August 2022;
• the documents at issue;
• the FOI Act, in particular ss 22 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 33 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 individuals and businesses who are not federal public
servants or contractors to the federal public service is irrelevant and may be
redacted under s 22.
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I have reviewed all documents located by the relevant line area. These documents
contain personal information of individuals who are not public servants, or
contractors to the public service, which you identified as irrelevant to your request.
Accordingly, I am satisfied that the material comprising personal information of
individuals who are not federal public servants or contractors to the federal public
service is irrelevant material that is outside the scope of your request in accordance
with s 22(1)(a)(ii) of the FOI Act.
Certain operations of agencies exemption – s 47E(d)
I have decided to grant access in part to 33 documents under s 47E(d) of the FOI Act.
The material and documents I have found to be exempt under s 47E(d) of the FOI Act
can be described as material specifically relate to IC review and FOI complaint
matters.
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 al egation 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).
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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 Information Commissioner (IC) reviews and investigating FOI
complaints. I note the documents in scope of this review were from IC review matters
and FOI complaints that external third parties lodged with the OAIC, which you are
not a party to.
The AAT has recognised in
Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) at [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.
All 33 documents within scope of your request contain material pertaining to IC
review matters and FOI complaints that is not publicly available or publicly known.
The release of this information to a third party who is not a party to these reviews
would, or could reasonably be expected to, adversely impact on the ability of the
OAIC to manage the specific matters referred to and future matters if parties cannot
be confident that their information will be kept confidential. While you have
excluded the personal information of private individuals from the scope of your
request, the documents contain information particular to these IC reviews and FOI
complaints that was provided to the OAIC for the purposes of conducting IC reviews
and investigating FOI complaints.
In my view, the OAIC’s ability to carry out its regulatory functions in conducting IC
reviews and investigating FOI complaints would be substantially and adversely
affected if there was a lack of confidence in the confidentiality of the review and
investigatory processes. In each case, the information that has been considered
exempt relates to sensitive information that the OAIC has been provided in relation
to reviewing FOI decisions or investigation FOI complaints. The disclosure of the
information to third parties, who are not a party to these reviews and investigations,
of the material within this matter, will impact on the willingness of parties to provide
this information to the OAIC in the future and thus directly impact the efficient
conduct of the OAIC. 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.
The public interest test – s 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
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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:
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… 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. 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:
• prejudice the OAIC’s ability to obtain confidential information
• prejudice the ability of the OAIC to conduct IC reviews and investigate FOI
complaints in a private manner
• prejudice the proper and efficient conduct of the Information Commissioner
review and FOI complaint investigation functions of the OAIC.
I have given significant weight to the factor that disclosure of the material outlined
above could reasonably be expected to prejudice the proper and efficient conduct of
the Information Commissioner review and FOI complaint investigation of the OAIC.
The disclosure of the information to a third party, who is not a party to these reviews,
of the material within this matter would or could reasonably expected to
substantially and adversely impact on the willingness of parties to provide this
information to the OAIC in the future and thus directly impact the efficient conduct of
1
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
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the OAIC. 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 conditionally 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
31 August 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 wil 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.
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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.
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