Our reference: FOIREQ22/00225
Attention: Verity Pane
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request – FOIREQ22/00225
Dear Verity Pane
I refer to your request for access to documents made under the Freedom of
Information Act 1982 (Cth) (the FOI Act) and received by the Office of the Australian
Information Commissioner (OAIC) on 12 August 2022.
In your request you seek access to the fol owing:
“I request copy of al Freedom of Information Act complaints received by the
OAIC in July 2022. Let's see if you pul this 100% exemption rubbish on me.
Personal information of private individuals (excluding 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 33 documents within the scope of your request. I have decided that
30 documents are exempt in full and 3 documents are exempt in part. The schedule
and documents will be provided to you tomorrow,
13 September 2022.
Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 12 August 2022;
• the documents at issue;
• the FOI Act, in particular s 22 and 47E(d);
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
• 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 3 documents contain irrelevant material, or material outside
the scope of your request.
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 11 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 30 documents under s47E(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:
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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 documents that I have found to be exempt under s 47E(d) of the FOI Act can be
described as:
• documents related to current freedom of information complaint
investigations 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.
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
view, the OAIC’s ability to carry out is regulatory functions in conducting FOI
complaint investigation would be substantially and adversely affected if there was a
lack of confidence in the confidentiality of the investigative process while the
investigations 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.
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link to page 4
I have refused access in full to a number of documents that relate to complaints
made to the OAIC that are current and ongoing. Given that these complaints remain
open, I consider that while the investigation is on foot, disclosure of the relevant
material at this stage can impede the efficient conduct of the case. Specifical y, the
investigating officers are still in the process of formulating their views, and gathering
facts and evidence, and no decisions or findings have been made regarding these
complaints. Parties to the investigation will be provided an opportunity to respond if
an adverse finding is likely to be made, for procedural fairness reasons. Further, if a
finding is made regarding the complaint, it is appropriate for the parties to the
complaint to be advised of that outcome. The OAIC’s Freedom of Information
Regulatory Action Policy advises at paragraph 70 that the Information Commissioner
wil not comment publicly about ongoing complaint investigations as the FOI Act
provides that investigations must be conducted in private (see s 76(1) of the FOI Act).
Accordingly, I consider that at this time, disclosure of this material to you via the
Right to Know website, when the complaint is still being investigated by the OAIC,
and where the parties have not yet been advised of the outcome of the investigation,
would, or could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the OAIC’s operations in investigating FOI
complaints.
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.
1
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
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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:
• 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
FOI complaint investigation 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 FOI complaint
investigation functions of the OAIC. The disclosure of the information to third parties,
who is not a party to these reviews, of the material within this matter, while the
complaints are being investigated, 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. 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
5
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 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 wil 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
conta
ct xxxxx@xxxx.xxx.xx. More information is available on t
he 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 it would be unreasonable to publish.
The documents I have decided to release to you do not contain personal or business
information that would be unreasonable to publish. As a result, an edited version of
the documents will be published on ou
r disclosure log.
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Document Outline