Our reference: FOIREQ22/00224
Attention: Verity Pane
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request – FOIREQ22/00224s
Dear Verity Pane
I refer to your request for access to documents made under the
Freedom of
Information Act 1982 (Cth) (the FOI Act). Your Freedom of Information (FOI request)
was received by the Office of the Australian Commissioner (OAIC) on 12 August 2022.
In your request you seek access to the fol owing:
“I want copy of al s 55G decisions (excluding drafts) the OAIC received in July 2022.
Let's see if you'll claim 100% exemption to me.
The personal information of private individuals (not Commonwealth public servants
and contractors) is irrelevant.”
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
40 documents within the scope of your request. I have made a
decision to:
• grant access in part to
22 documents, and
• refuse access in ful to
18 documents.
A schedule of documents is attached.
In accordance with section 26(1)(a) of the FOI Act, the reasons for my decision and
findings on material questions of fact are provided below.
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
The following line area of the OAIC conducted reasonable searches for documents
relevant to you request:
• Freedom of Information Intake & Early Resolution
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s case management system - Resolve
• the OAIC’s document holding system – Content Manager
• OAIC’s email system
• general computer files
The following search terms were used when undertaking electronic records
searches:
• ‘s55G’
• ‘Revised decision’
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request.
Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 12 August 2022
• the FOI Act, in particular sections 22 and 47E(d) of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act to which regard must be had in performing a
function or exercising a power under the FOI Act (FOI Guidelines)
• submissions from other Commonwealth agencies in relation to the release of
the documents
• relevant case law
Irrelevant material (s 22)
I have found material in 22 documents contain irrelevant material, or material
outside the scope of your request.
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Section 22(1)(b)(i ) 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 personal information of private individuals
(excluding Commonwealth public servants and contractors). Consistent with your
request, I have deleted irrelevant material, including material that you have
expressly excluded in your request. I have released 22 documents in part with
personal information of private individuals deleted as irrelevant to your request in
accordance with section 22 of the FOI Act. I note that personal information is more
than just names and contact details and includes representative details and details
of the FOI requests where those details may identify an individual.
Certain operations of agencies exemption – s 47E(d)
I have decided to refuse access to 18 documents under s 47E(d) of the FOI Act.
Section 47E(d) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
…
(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:
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An agency cannot merely assert that an effect would occur following
disclosure. The particulars of the predicted effect should be identified during
the decision making process, including whether the effect could reasonably
be expected to occur. Where the conditional exemption is relied upon, the
relevant particulars and reasons should form part of the decision maker’s
statement of reasons, if they can be included without disclosing exempt
material (s 26, see Part 3).
The documents that I have found to be exempt under s 47E(d) of the FOI Act can be
described as:
• s 55G decisions made by a number of Commonwealth agencies, each
provided to the OAIC for the purposes of conducting Information
Commissioner reviews currently being considered by the OAIC.
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 Information Commissioner reviews and investigating
and reporting on freedom of information complaints.
Information regarding current Information Commissioner review matters
These 18 documents contain information that is not publicly known, regarding
Information Commissioner reviews that are currently open and are still being
determined by the OAIC. The release of this information at this time to a third party
who is not a party to these reviews would, or could reasonably be expected to,
adversely impact on both 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 their reviews are still being investigated. While you
have excluded the personal information of private individuals and the names of
private businesses from the scope of your request, the documents contain
information particular to these IC reviews that was provided to the OAIC for the
purposes of conducting IC reviews.
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. In my
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view, the OAIC’s ability to carry out is regulatory functions in conducting Information
Commissioner reviews would be substantially and adversely affected if there was a
lack of confidence in the confidentiality of the review process while the Information
Commissioner reviews are still on foot.
As such, I consider the release of information on current and ongoing matters that
are 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 – 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:
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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
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
1
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
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non-exhaustive list of factors against disclosure. In my view, the fol owing relevant
public interest factors against disclosure in this case is that disclosure:
• could reasonably be expected to prejudice an agency’s ability to obtain
confidential information, and
• could reasonably be expected to prejudice the proper and efficient conduct of
the Information Commissioner review functions of the OAIC.
I have given significant weight to the factor that disclosure could reasonably be
expected to prejudice the proper and efficient conduct of the Information
Commissioner review functions of the OAIC. In each case, the information that has
been considered exempt relates to sensitive information that the OAIC has been
provided in relation to determining Information Commissioner reviews. The
disclosure of the information to third parties, who is not a party to these reviews, of
the material within this matter, while the reviews are being considered, would or
could reasonably expected to substantial y 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 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.
Disclosure log decision
Section 11C of the FOI Act requires agencies to publish online document 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.
I have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.
Please see the following page for information about your review rights.
Yours sincerely
Emily Elliott
Senior Lawyer
12 September 2022
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email t
o 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_
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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 t
o 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
xxx@xxxx.xxx.xx. More information is available on the Access our information page
on our website.
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Document Outline
