14 September 2022
BE
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 22/08/01044
File Number:
OBJ2022/22565
Dear BE
Freedom of Information (FOI) request – Access Decision
On 17 August 2022, the Department of Home Affairs (the Department) received a request for
access to a document under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following document:
I seek access under the FOI Act to MS22-000833. I note that part of this document is
available on the Home Affairs FOI disclosure log (FA 22/06/00085 published
14 July 2022) however parts of this document were redacted on the basis that the
information was irrelevant to that particular request.
Given that my request is for access to this specific document (and without knowing
the precise scope of the previous request), no aspect of this document is irrelevant
to my request for the purposes of s.22(1)(a)(i ) of the FOI Act other than names or
contact details of departmental staff.
I also confirm that I do not seek access to any of the information which has been
redacted under section 47F(1) of the Act in the version of this document that is
publicly available on the department's disclosure log.
In relation to the information that was redacted on the basis of deliberative process
(47C) I confirm that I would like this information included within my request, noting
that over a month has elapsed since the date of the previous FOI decision and that
further final decisions in the form of the grant of permanent residency to this family
have occurred which would require a fresh assessment of the basis of any
deliberative process claim.
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • www.homeaffairs.gov.au
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your request
• the document relevant to the request
• the FOI Act
• Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
• advice from departmental officers with responsibility for matters relating to the
document to which you sought access
4
Document in scope of request
The Department has identified one document as falling within the scope of your request.
This document was in the possession of the Department on 17 August 2022 when your request
was received.
5
Decision
The decision in relation to the document in the possession of the Department which fall within
the scope of your request is as follows:
• Release one document in part with deletions
6
Reasons for Decision
Detailed reasons for my decision are set out below.
My findings of fact and reasons for deciding that the exemption provision applies to that
information are set out below.
6.1 Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose information
that would reasonably be regarded as irrelevant to the request, it is possible for the Department
to prepare an edited copy of the document, modified by deletions, ensuring that the edited copy
would not disclose any information that would reasonably be regarded as irrelevant to the
request.
On 23 August 2022, the Department advised you that its practice is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff contained in documents that fall within scope of an FOI request.
I note that your request explicitly states that you do not seek access to the names or contact
details of departmental staff.
I have decided that parts of document marked ‘s22(1)(a)(i )’ would disclose information that could
reasonably be regarded as irrelevant to your request. I have prepared an edited copy of the
document, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
- 2 –
The remainder of the document has been considered for release to you as it is relevant to your
request.
6.2 Section 22 of the FOI Act – deletion of exempt material
I have decided to prepare an edited copy of the document. The grounds upon which the edited
copy of this document are explained below.
6.3 Section 42 of the FOI Act – Legal Professional Privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
I am satisfied that part of the document comprises confidential communication passing between
the Department and its legal advisers, for the dominant purpose of giving or receiving legal
advice.
In determining that the communication is privileged, I have taken into the consideration the
following: • there is a legal adviser-client relationship
• the communication was for the purpose of giving and/or receiving legal advice;
• the advice given was independent and
• the advice was given on a legal-in-confidence basis and was therefore
confidential.
The content of the document is not part of the rules, guidelines, practices or precedents relating
to the decisions and recommendations of the Department. The document does not fall within the
definition of operational information and remain subject to legal professional privilege.
I have decided that part of the document is exempt from disclosure under section 42 of the
FOI Act.
6.4 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the functions
of the Department.
‘
Deliberative matter’ includes opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes of
an agency.
‘
Deliberative processes’ generally involves “
the process of weighing up or evaluating competing
arguments or considerations”1 and the ‘
thinking processes – the process of reflection,
for example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’2
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
- 3 –
The document contains advice, opinions and recommendations prepared or recorded in the
course of, or for the purposes of, the deliberative processes involved in the functions of
Department, being possible consequences of the Minister’s decision. I am satisfied that this
deliberative matter relates to a process that was undertaken within government to consider
whether and how to make or implement a decision or some similar activity.3
Disclosure of this deliberative information could reasonably be expected to inhibit full and frank
advice from the Department to its Minister and, as a result, full consideration by the Government
on any potential future consideration of certain related matters.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I have
had regard to the fact that “purely factual material” does not extend to factual material that is
an integral part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.4 A factual summary
prepared to aid a complex issue may be classed as purely factual material, but may also be of
a character as to disclose a process of section involving opinion, advice or recommendation.
As such, a conclusion which involves a deliberative process may well prevent material from being
purely factual.5
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that the information is conditionally exempt under section 47C of the FOI Act.
Access to a conditionally exempt document must generally be given unless it would be contrary
to the public interest to do so. I have turned my mind to whether disclosure of the information
would be contrary to the public interest, and have included my reasoning in that regard at
paragraph 6.6 below.
6.5 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual,
or an individual who is reasonably identifiable, whether the information or opinion is true or not,
and whether the information or opinion is recorded in a material form or not (see s 4 of the FOI Act
and s 6 of the
Privacy Act 1988).
I note that your request explicitly states that you do not seek access to the information contained
in this document that was previously exempted under section 47F. I have nevertheless
considered this information on its merits.
I consider that disclosure of the information marked 's47F' in the document would disclose
personal information relating to third parties. The information within the document would
reasonably identify a person or persons, either through names, family relationships or
immigration status.
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
4
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
5
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
- 4 –
The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to four factors set out in s.47F(2) of the FOI Act. I have
therefore considered each of these factors below:
•
the extent to which the information is well known;
•
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
•
the availability of the information from publicly available resources;
•
any other matters that I consider relevant.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individual or individuals concerned are not generally known to be associated
with the matters discussed in the document. The information is not available from publicly
accessible sources.
I do not consider that the information relating specifically to the third parties would be relevant to
the broader scope of your request, as you are seeking access to the Minister’s decision-making
process rather than information which wholly relates to other individuals.
I am satisfied that the disclosure of the information within the document would involve
an unreasonable disclosure of personal information about one or more individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless
it would be contrary to the public interest to do so. I have turned my mind to whether disclosure
of the information would be contrary to the public interest and included my reasoning in that
regard at paragraph 6.6 below.
6.6 The public interest – section 11A of the FOI Act
As I have decided that parts of the document are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3
and 3A)
(b) inform debate on a matter of public importance
(c) promote effective oversight of public expenditure
(d) allow a person to access his or her own personal information.
- 5 –
Having regard to the above I am satisfied that:
•
Access to the document would promote the objects of the FOI Act.
•
While the subject matter of the document does have the character of some public
importance and that there may be some public interest in the document,
the information exempted, however, is specific and limited.
•
No insights into public expenditure wil be provided through examination of the
document.
•
You do not require access to the document in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the document:
•
A Ministerial Submission plays an important role in the relationship between
a Department and its Minister. Its purpose is to provide frank and honest advice. It is
inherently confidential between the Department and its Minister and the preparation
of a Ministerial Submission is essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
o
concerns existing in the open and honest nature of advice being provided which
may then hinder future deliberations and decision making processes for the
Department and the Government as a whole and
o
future Ministerial Submissions being prepared with a different audience in mind,
which would compromise the quality of the advice being prepared for the
Minister.
•
I consider that the public interest in protecting the process of the provision of free and
honest confidential advice by a Department to its Minister has, on balance, more
weight than the public interest that might exist in disclosing the deliberative matter.
Endangering the proper working relationship that a Department has with its Minister
and its ability to provide the Minister with honest advice confidentially would be
contrary to the public interest. I do not consider that the relative weight of these
considerations has been affected by the passage of time, either in this specific
instance or in general terms.
•
Disclosure of the personal information which is conditionally exempt under
section 47F of the FOI Act could reasonably be expected to prejudice the protection
of those individuals' right to privacy.
•
The information conditionally exempt under section 47F of the FOI Act is not well
known to the public generally and is not readily available from public sources. I have
had regard to the fact that disclosure of information under the FOI Act must be
considered to be a disclosure to the world at large and not just to you as the applicant.
•
The Department is committed to complying with its obligations under the
Privacy
Act 1988, which sets out standards and obligations that regulate how the Department
must handle and manage personal information. It is firmly in the public interest that
the Department uphold the rights of individuals to their own privacy and meets its
obligations under the Privacy Act. I consider that non-compliance with the
Department’s statutory obligations concerning the protection of personal information
would be contrary to the public interest and that this factor weighs strongly against
disclosure.
- 6 –
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which
the request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the document would be contrary to the public
interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
8
Your Review Rights
Internal Review
If you disagree with this decision, you have the right to apply for an internal review by the
Department of this decision. Any request for internal review must be provided to the Department
within 30 days of you being notified of the decision. Where possible please attach reasons why
you believe a review of the decision is necessary. The internal review wil be carried out by an
officer other than the original decision maker and the Department must make a review decision
within 30 days.
Applications for review should be sent to:
By email to: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
OR
By mail to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN ACT 2617
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for
a review of this decision. You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a request for a review to the OAIC, please see
https:/ www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
- 7 –
9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify the
Department of Home Affairs as the relevant agency.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely
Ann-Clare
Position no. 60040814
Authorised Decision Maker
Department of Home Affairs
- 8 –
