Our reference: FOI 161
28 September 2022
Mr Peter Timmins
Via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Timmins
YOUR FREEDOM OF INFORMATION REQUEST: FOI 161
I refer to the request for access to documents under the
Freedom of Information Act 1982 (FOI
Act) you made on 29 August 2022. You have requested access to the following documents held
by the National Archives of Australia (National Archives):
“…all documents held that relate to the handling of my inquiry NAA1000339078 lodged on
11 February 2022.”
AUTHORITY AND RELEVANT MATERIALS
I am authorised to make decisions under section 23(1) of the FOI Act.
In reaching my decision I referred to the following:
• the terms of your FOI request
• the documents relevant to the request
• the relevant provisions of the FOI Act
• the Guidelines published by the Office of the Information Commissioner under section 93A of
the FOI Act (the FOI Guidelines).
SUMMARY OF DECISION
I have identified 21 documents, including attachments, which fall within the scope of your request.
Searches were undertaken according to normal business practices, I am satisfied that the National
Archives has taken all reasonable steps to find documents falling within the scope of your request.
DECISION ON ACCESS
In summary, I have decided to grant you access to:
13 documents in
part and
refused 8 documents in full.
The Schedule of Documents (
Attachment A) sets out information regarding the exemption
provisions that I have determined apply to the relevant documents.
REASONS FOR DECISION
Section 22(1) – Access to edited copies with exempt or irrelevant matter deleted
Section 22(1) of the FOI Act provides a process for access to a document with deletions removing
exempt or irrelevant matter. I have assessed the information in the relevant documents and I am
satisfied that some of the content is irrelevant to the scope of your request. Some of this
information has been redacted from the documents to which part and refused access has been
given.
Section 47C(1) – Public Interest conditional exemptions – deliberative processes
Section 47C of the FOI Act provides that a document is conditionally exempt if disclosure of the
document under the Act would disclose matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation
that has taken place in the course of, or for the purposes of, the deliberative processes involved in
the functions of an agency. Section 47C is a conditional exemption and is subject to the proper
application of the public interest test (considered below).
In applying this exemption, paragraph 6.55 of the FOI Guidelines provides that:
The deliberative processes exemption differs from other conditional exemptions in that no type of
harm is required to result from disclosure. The only consideration is whether the document includes
content of a specific type, namely deliberative matter.
A number of the documents falling within the scope of the FOI request are deliberative in
character. They comprise of opinions, advice, options and/or recommendations concerning the
development of a decision on the terms of a proposed response to inquiry NAA1000339078.
I am satisfied that the relevant material is not purely factual and is deliberative matter within the
meaning of section 47C(1), being in the nature of and relating to:
• opinion, advice and recommendations
• a collection of facts or opinions, including the pattern of facts or opinions considered; or
• interim decisions or deliberations.
The identified information constitutes the opinions and recommendations of the National Archives
when considering options in relation to the development of a decision on the terms of a proposed
response to inquiry NAA1000339078.
Section 47E(d) – Public Interest conditional exemptions – substantial adverse effect on the
proper and efficient conduct of the operations of an agency
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if disclosure of the
document under the Act would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations of an agency. Section 47E is a
conditional exemption and is subject to the proper application of the public interest test
(considered below).
I have considered whether any of the information is conditionally exempt on the basis that
disclosure would, or could reasonably be expected to, result in a substantial adverse effect on the
proper and efficient conduct of the operations of the National Archives. The information I have
conditionally exempted under this particular provision contains opinions and deliberations about
the National Archives and its operations associated with processing your inquiry.
In reviewing the material, I have made the decision that disclosure of some of this information
would, or could reasonably be expected to, have a substantial adverse effect on the National
Archives. The information I have conditionally exempted under this particular provision contains
opinions, deliberations and preliminary views about the processing your inquiry.
On that basis, I find that relevant parts of these documents are conditionally exempt under
section 47E(d).
Section 47F(1) – Public interest conditional exemptions – personal privacy
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its disclosure
under the Act would involve the unreasonable disclosure of personal information about any person
(including a deceased person). Section 47F is a conditional exemption and is subject to the proper
application of the public interest test (considered below).
Paragraph 6.127 of the FOI Guidelines provides:
The FOI Act shares the same definition of ‘personal information’ as the Privacy Act, which regulates
the handling of personal information about individuals. The cornerstone of the Privacy Act’s privacy
protection framework is the Australian Privacy Principles (APPs), a set of legally binding principles
that apply to both Australian Government agencies and private sector organisations that are subject
to the Act
In this regard, personal information includes a person’s name, address, telephone number and
login and password details. Given this strict definition, all personal information regarding a
person’s name, email address, telephone and signatures has been conditionally exempted using
this provision of the FOI Act.
The public interest test entails a public authority deciding whether, in relation to a request for
information, it serves the interest of the public to disclose the information or to maintain an
exemption in respect of the information requested. In balancing whether information should be
excluded pursuant to section 47F(1) of the FOI Act, I have exercised my discretion to withhold
personal information relating to people (including public servants) whose names and contact
details are not currently held within the public domain.
Public Interest Test – section 11A(5) of the FOI Act
Section 11A(5) of the FOI Act provides that when a document is conditionally exempt, the public
interest test must be considered. I have applied the public interest test jointly across the
conditional exemptions (outlined above) as it covers the similar material in the documents or the
same factors as to why disclosure is not in the public interest apply across the documents.
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have considered relevant factors in favour of disclosure. In particular, I have considered the
extent to which disclosure would:
• promote the objects of the FOI Act
• inform debate on a matter of public importance
• promote effective oversight of public expenditure
• facilitate access to information by members of the public that allows them to be satisfied
that proper processes have been followed by the National Archives.
I have identified the following factors as weighing against the release of the documents:
• Disclosure would be contrary to reasonably held expectations of confidentiality and internal
assessment processes when providing opinions and advice to assist responsible National
Archives officers.
• Whether documents were previously circulated in the public domain.
• Disclosure could reasonably be expected to prejudice the protection of an individual’s right
to privacy including whether the personal information is that of a government employee in
relation to personnel management and the disclosure of the information could be
reasonably considered to reveal information about their private disposition or personal life.
Based on these factors, I have decided that the public interest in disclosing some information in
the relevant documents is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act
in making this decision.
CHARGES
Section 29 of the FOI Act authorises an agency or Minister to impose a charge for providing
access to a document.
In this case, it has been decided that charges will not be imposed.
DISCLOSURE LOG
The National Archives will update its Disclosure Log in accordance with its normal administrative
practice.
REVIEW RIGHTS
See
Attachment C for more information about your rights to seek a review of this decision.
If you have any queries about this notice, please contact me in writing vi
a xxx@xxx.xxx.xx.
Yours sincerely,
Raquel Lopera
Authorised FOI Decision Maker
ATTACHMENT A – SCHEDULE OF DOCUMENTS
Document
Page
Document
Description
Access Decision
Number
number
Date
1
1-7
17 March 2022
Email
Partial Access
Subject: FW: NAA1000336523 Redirected
Exemptions Applied:
question Reference - general
Section 22- Irrelevant Material
Section 47C- Deliberative Process
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
2
8-15
31 March 2022
Email
Partial Access
Subject: [EXT] FW: NAA1000336523
Exemptions Applied:
Redirected question Reference - general
Section 22- Irrelevant Material
Section 47C- Deliberative Process
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
3
16-18
16 February 2022
Attachment to Document 2
Partial Access
Email
Exemption Applied:
Subject: [EXT] FW: NAA1000339078
Redirected question Reference - general
Section 47F- Personal Privacy
4
19
28 April 2022
Email
Partial Access
Subject: unauthorised destructions query
Exemption Applied:
follow up?
Section 22- Irrelevant Material
Section 47C- Deliberative Process
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
5
20
1 April 2022
Attachment to Document 4
Partial Access
Email
Exemptions Applied:
Subject: PMs text messages ordered to be
produced
Section 22- Irrelevant Material
Section 47C- Deliberative Process
Section 47F- Personal Privacy
6
21-26
16 February 2022
Attachment to Document 4
Partial Access
Email
Exemptions Applied:
Subject: RE: RE: first draft response
NAA1000336523 Redirected question
Section 47C- Deliberative Process
Reference - general
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
7
27-30
15 February 2022
Attachment to Document 4
Partial Access
Email
Exemptions Applied:
Subject: RE:
Section 47C- Deliberative Process
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
8
31
29 October 2020
Attachment to Document 7
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
9
32
Undated
Attachment to Document 8
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
10
33-35
24 April 2020
Attachment to Document 8
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
11
36-37
5 March 2020
Attachment to Document 7
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
12
38
28 February 2020
Attachment to Document 11
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
13
39
2 March 2020
Attachment to Document 11
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
14
40
29 February 2020
Attachment to Document 7
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
15
41-46
Undated
Attachment to Document 7
Refused Access
Exemption Applied:
Section 22- Irrelevant Material
16
47
12 May 2022
Email
Partial Access
Subject: RE: unauthorised destructions query
Exemption Applied:
follow up?
Section 47F- Personal Privacy
17
48-52
16 February 2022
Email
Partial Access
Subject: RE: RE: first draft response
Exemptions Applied:
NAA1000336523 Redirected question
Reference - general
Section 47C- Deliberative Process
Section 47E(d)- Certain Operations of an Agency
Section 47F- Personal Privacy
18
53-54
21 March 2022
Email
Partial Access
Subject: NAA1000339078 Redirected question
Exemption Applied:
Reference - general
Section 47F- Personal Privacy
19
55-56
24 March 2022
Email
Partial Access
Subject: NAA1000339078 Redirected question
Exemption Applied:
Reference - general
Section 47F- Personal Privacy
20
57-58
3 May 2022
Email
Partial Access
Subject: NAA1000339078 Redirected question
Exemption Applied:
Reference - general
Section 47F- Personal Privacy
21
59-60
16 May 2022
Email
Partial Access
Subject: NAA1000339078 Redirected question
Exemption Applied:
Reference - general
Section 47F- Personal Privacy
ATTACHMENT B – RELEVANT LEGISLATION
22 Access to edited copies with exempt or irrelevant matter deleted Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to
documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as
irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having
regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the
applicant would decline access to the edited copy.
47C Public interest conditional exemptions—deliberative processes
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would disclose
matter (
deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation that
has taken place, in the course of, or for the purposes of, the deliberative processes
involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note:
An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an agency
or not, including reports expressing the opinions of such experts on
scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given
in the exercise of a power or of an adjudicative function.
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including
a deceased person).
(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must
have regard to the following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a
request by a person for access to a document by reason only of the inclusion in
the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the
agency, or an official document of the Minister, that contains information
concerning the applicant, being information that was provided by a qualified
person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the
case may be) that the disclosure of the information to the applicant might
be detrimental to the applicant’s physical or mental health, or well-being.
(5) The principal officer or Minister may, if access to the document would otherwise
be given to the applicant, direct that access to the document, so far as it contains
that information, is not to be given to the applicant but is to be given instead to a
qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of
qualified person in subsection (7), as the first-mentioned qualified person;
and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section
may be exercised by an officer of the agency acting within his or her scope of
authority in accordance with arrangements referred to in section 23.
(7) In this section:
qualified person means a person who carries on, and is entitled to carry on, an
occupation that involves the provision of care for the physical or mental health of
people or for their well-being, and, without limiting the generality of the foregoing,
includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
ATTACHMENT C – REVIEW RIGHTS
Your rights to seek review of a decision made under the Freedom of Information Act 1982 If you do not agree with this decision, you may choose to exercise your review rights in the
following ways:
• Request the National Archives of Australia to conduct an internal review of the decision. If
you disagree with the National Archives of Australia’s internal review decision, you may then
apply to the Office of the Australian Information Commissioner (OAIC) for a review of that
decision; or
• Apply directly to the Office of the Australian Information Commissioner (OAIC) for a review of
the decision. However, we do encourage you to seek internal review as a first step as it may
provide a more rapid resolution for your concerns. If you are dissatisfied with the Information
Commissioner’s decision, you may apply to the Administrative Appeals Tribunal for a review
of the Commissioner’s decision.
INTERNAL REVIEW OF DECISION BY THE NATIONAL ARCHIVES
Pursuant to section 54 of the FOI Act, you have the right to apply to the National Archives for an
internal review of the decision. A different officer from the one who made the original decision will
conduct the review. The reviewer will make a fresh decision.
If the decision has been made by the Director-General of the Archives, you do not have the option
to request an internal review under the FOI Act. You will need to apply for a review of the decision
by the Information Commissioner (see below).
You do not have to complete a special form in order to request an internal review. However, your
application for an internal review must be made in writing, and lodged within 30 days after the day
on which you are notified of the decision. It is desirable (but not essential) that you outline the
reasons why you are dissatisfied with the decision in your application for internal review. There is
no cost attached to an application for internal review.
An application for internal review should be directed to:
FOI Coordination Officer
National Archives of Australia
PO Box 4924
Kingston ACT 2604
Email:
xxx@xxx.xxx.xx REVIEW OF DECISION BY THE INFORMATION COMMISSIONER
The Information Commissioner is an independent office holder who is authorised to review
decisions of agencies and Ministers made under the FOI Act.
You do not have to request an internal review of a decision made under the FOI Act before making
an application for review to the Information Commissioner (but you may do so if you wish).
There is no cost associated with making an application for review by the Information
Commissioner.
