Whether reasonable steps were taken to find documents – s 24A
Section 24A requires that an agency take ‘al reasonable steps’ to find a requested document
before refusing access to it on the basis that it cannot be found or does not exist.
I have considered the search and retrieval efforts in processing your FOI requests. As
previously advised to you, this involved:
• A search and retrieval request to the relevant line area (Freedom of
Information Regulatory Group), who conducted searches and located a
document on the OAIC’s Case Management System Resolve
On the basis of the search conducted, I am satisfied that under s 24A of the FOI Act, al
reasonable steps have been taken by the OAIC to find the documents that fal within the scope
of your request. I am also satisfied that the 16
documents identified during the search and
retrieval process is the only documents within the scope of your request.
Access to edited copies with irrelevant and exempt matter deleted– s 22
I have found that 9 documents located 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 ‘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 9 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- s47E(d)
I have found 7 documents to be conditional y exempt in full under section 47E(d) of the FOI
Act.
The information within the 7 documents that I have found to be exempt in full is material that
relates to open complaint matters that are still being investigated by the OAIC.
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Under s 47E(d) 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 proper and efficient
conduct of the operations of an agency.
Section 47E(d) 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:
…
(d) 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.
Additional y, 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 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’.
The word ‘substantial’, taken in the context of substantial loss or damage, has been
interpreted as ‘loss or damage that is, in the circumstances, real or of substance and not
insubstantial or nominal’.
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 OAIC’s powers the Freedom of Information Act 1982 (Cth)(‘The FOI Act’) to
investigate and make determinations in relation to Freedom of Information complaints by
members of the public.
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
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the confidentiality of the investigative process. Similarly, in this instance, the OAIC’s ability to
carry out its regulatory functions would be affected if there was a lack of confidence in the
confidentiality of this process.
I have refused access in ful to 7 documents that relate to ongoing complaint matters that are
still open and being investigated by the OAIC. Given that these complaints remain open, I
consider that while the matters are on foot, disclosure of the relevant material at this stage
can impede the efficient conduct of the investigation. Specifical y, investigation 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 complaint
will be provided an opportunity to respond if an adverse finding is likely to be made, for
procedural fairness reasons. Further, if a determination is made regarding the complaint, it is
appropriate for the parties to the complaint to be advised of that outcome.
The release of this information at this time to a third party who is not a party to these
investigations 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 complaints are still being
investigated. While you have excluded the personal information of private individuals from
the scope of your request, the documents contain information particular to these complaints
that was provided to the OAIC for the purposes of investigating and making determinations
on complaints.
I consider that at this time disclosure of this material to you via the Right to Know website,
when the complaint is open and ongoing, would, or could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of the OAIC’s operations in
reviewing and making determinations concerning complaints.
The public interest test- s11A(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 conditional y 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.
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 wel as public interest factors against disclosure. The relevant
public interest factor in favour of disclosure in this case is that disclosure would promote the
objects of the FOI Act and inform debate on a matter of public importance. Other factors are
not relevant.
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
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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
• could reasonably be expected to prejudice the OAIC’s ability to obtain similar
information in the future, and
• could reasonably be expected to prejudice the conduct of complaint investigations
and determinations by the OAIC
As this list is non-exhaustive, I have also taken into account that refusing to release the
documents at issue is in line with the OAIC’s Freedom of Information Regulatory Action Policy ,
which relevantly states the fol owing at [72]:
“The Information Commissioner wil not comment publicly about the commencement
of or ongoing complaint investigations and CI s as the FOI Act provides that
investigations must be conducted in private”
I am satisfied that the public interest factors against disclosure outweigh the public interest
factor in favour of disclosure.
I have decided that at this time, giving you ful access to the documents, which I have found
to be conditional y exempt under s 47E(d) of the FOI Act would, on balance, be contrary to the
public interest.
Conclusion
As noted above, I have decided to refuse access in full to 7 documents and grant access in part
to 9 documents.
The documents for release and document schedule can be found attached to this decision.
Please see the fol owing page for information about your review rights.
Yours sincerely
Alessia Mercuri
Lawyer
Legal Services
3 January 2023
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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 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.
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.
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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.
I am not of the view that the documents I have decided to release to you contain
personal and business information that would not be unreasonable to publish. As
a result, the documents will be published on our disclosure log.
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