FOIREQ2200296 Decision.pdf

“Senior Lawyer” is not contained in the document then I do not consent to it being
redacted).
5.  The names of individuals not part of the OAIC. Please note the rules at part 2 and 3
apply to individuals not part of the OAIC. I do not consent to the removal of
position descriptions, organisation names, or domain names of non-OAIC entities.
…
In addition to providing suggested documents, any information the OAIC line areas are
wil ing to provide that alleviates the concerns that decisions are not correctly being
published correctly.”
On 10 October 2022 we wrote to you to clarify the scope of your request as follows:
“We would be grateful if you could please clarify the scope of your  request, as soon as
possible and ideally before 12pm Wednesday 12 October 2022:
1. whether your request only relates to FOI decisions, or both FOI and privacy decisions
made by the OAIC?
2. In relation to your request #5 “any requests to remove decisions that have already
been published on Austli , and all documents that relate to each of those requests” –
are you seeking recent removal requests or all removal requests unlimited by time?”
On 10 October you clarified the scope of your request as follows:
I've answered your questions below:
“1. whether your request only relates to FOI decisions, or both FOI and privacy
decisions made by the OAIC?
- My request relates to all requests that are issued an AICmr number
2. In relation to your request #5 “any requests to remove decisions that have already
been published on Austli , and all documents that relate to each of those requests” –
are you seeking recent removal requests or all removal requests unlimited by time?
- I don't know how many requests have been made, so I wil  keep my requests to al
removal requests. If this causes an undue burden, it would be helpful if the OAIC could
tel  me how many requests over the last few years fit this category.”
Discussion
We note that your request includes ‘any information the OAIC line areas are wil ing to
provide that alleviates the concerns that decisions are not correctly being published
correctly.’ We have consulted with the FOI branch of the OAIC which has provided
2

further information in addition to the documents they have provided. The FOI branch
has advised as follows regarding your request:
1.  Your request states:
To assist the OAIC, examples of decisions from Austli  that I can’t find include but are not
limited to:
[2022] AICmr 60
[2022] AICmr 59
[2022] AICmr 33
The FOI Branch has identified that both [2022] AICmr 60 and [2022] AICmr 59 are
available on Austlii and the following links are provided for your reference:
•  William Summers and Department of the Prime Minister and Cabinet (Freedom of
Information) [2022] AICmr 59 (12 August 2022)
•  Rex Patrick and Department of the Prime Minister and Cabinet (Freedom of
Information) [2022] AICmr 60 (12 August 2022)
Your request correctly identifies that that third decision [2022] AICmr 33 is
currently unavailable on Austli .
2.  As set out in the schedule and documents provided, we have only been able to
identify a smal  number of cases in which the OAIC has requested the removal of
a decision from Austli . Of the three cases we have identified one was published
with errors in the decision and was subsequently republished with the errors
corrected. One was removed from Austlii while the decision was subject to
litigation. Once the litigation had been finalised the decision was republished.
The final decision, identified in your request, [2022] AICmr 33 is the subject of
current litigation and is not currently published.
3.  All IC review decisions made under s 55K of the FOI Act are allocated AICmr
reference numbers. Al  IC review decisions are published.
4.  All vexatious declarations are also allocated AICmr reference numbers. With
respect to the publishing of s 89K decisions, the FOI Guidelines at [12.51] advise
that the Information Commissioner wil  generally publish reasons for making a
s 89K declaration, but there is no requirement that the Commissioner publish a
s 89K decision. There may be circumstances where the OAIC considers it
inappropriate or unnecessary to publish.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
3

I have identified 17 documents within the scope of your request. I have made a
decision to:
•  grant full access to 7 documents;
•  refuse access in ful  to 8 documents; and
•  grant access in part to 2 documents.
The documents and schedule of documents are attached to this decision.
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
The following line areas of the OAIC conducted reasonable searches for documents
relevant to your request:
•  FOI Dispute Resolution
•  Privacy
•  Legal services
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

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. I am satisfied that all reasonable steps
have been taken to find documents within the scope of your request and that no
other documents within the scope of your request exist.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
•  your freedom of information request dated 16 September 2022;
•  the documents at issue;
4

•  the FOI Act, in particular ss 3, 11, 11A, 15, 22, 42, 46(b) and 47E(d);
•  the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines); and
•  relevant case law.
Access to edited copies with irrelevant and exempt matter deleted (section
22)
In accordance with section 22 of the FOI Act, an agency must consider whether it
would be reasonably practicable to prepare an edited copy of documents subject to
an FOI request where material has been identified as exempt or irrelevant to the
request.
I have determined that FOI Act exemptions apply to this material.
I have also identified the following material within the documents to be irrelevant or
out of scope of your request:
•  Names of individuals not part of the OAIC, which is identified to be out of
scope in your request
•  Portions of an OAIC procedural handbook which do not relate to publication
of decisions
Accordingly, I have made an edited copy of the documents (other than those which I
have found to be exempt in full) which removes irrelevant and out of scope material
and otherwise grants you full access to the material in scope of your request.
Documents subject to legal professional privilege (section 42)
I have identified material contained within the documents that comprises a
discussions in relation to ongoing legal proceedings involving the OAIC.
In accordance with section 42 of the FOI Act, I have decided to refuse access to these
documents in full as they are subject to legal professional privilege.
Documents attracting legal professional privilege
Section 42(1) 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.

5

In determining whether or not these documents could be privileged from production
in legal proceedings I have considered:

•  whether there is a legal adviser-client relationship,
•  whether the communication was for the purpose of giving or receiving,
legal advice, or use in connection with actual or anticipated litigation,
•  whether the advice given is independent, and
•  whether the advice given is confidential.

Generally, privilege may be claimed in legal proceedings in relation to advice sought
from and given by an inhouse lawyer, where the professional relationship between
the lawyer and the agency seeking advice has the necessary quality of independence,
as per Taggart and Civil Aviation Safety Authority (Freedom of information) [2016] AATA
327 at [32].

Having regard to this material, I am satisfied that there is a legal adviser - client
relationship between the OAIC’s General Counsel and legal services team, and the
FOI branch of the OAIC. The OAIC legal team is part of the corporate branch and is
separate from the FOI branch. Although not a determinative factor, all members of
the legal team hold practising certificates and are subject to all professional
obligations of legal practitioners. I consider that the separation of the legal team
from the FOI branch reinforces the independence of the legal advice and made the
relationship a legal adviser – client relationship.

Whether privilege attaches to a document depends on the purpose for which the
communication in the document was created. The High Court has confirmed that the
common law requires a dominant purpose test rather than a sole purpose test, as
per Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49. The
relevant documents were all created for the dominant purpose of being used in
connection with litigation.

Finally, I have turned my mind to whether the advice was given in confidence. In
relation to the relevant documents, the legal advice was clearly marked legal in
confidence, and they were only distributed to a limited number of OAIC employees
who were involved in the matter. I have not been able to identify any express or
implied waiver of the privilege and am satisfied that the advice was provided in
confidence.

Accordingly, I consider that the relevant documents are subject to legal professional
privilege.
6

The ‘real harm’ test
The FOI Guidelines explain at [5.150] that while not stipulated in section 42 of the FOI
Act, agencies should not claim exemption under section 42 unless it is considered
that ‘real harm’ would result from releasing the document. At [5.150] the FOI
Guidelines provide that:
The phrase ‘real harm’ distinguishes between substantial prejudice to the
agency’s affairs and mere irritation, embarrassment or inconvenience to the
agency.
The material in question relates to litigation which is still ongoing, and particularly to
elements of the matter which are still undecided. I consider that disclosure of
confidential communications discussing the OAIC’s strategies in ongoing litigation to
the wider public via the Right to Know website would substantially prejudice the
OAIC’s ability to effectively manage this matter, satisfying the ‘real harm’ test.
For the reasons given above, I consider the relevant documents identified in the
schedule are exempt under section 42 of the FOI Act.
Contempt of court (s 46)
I have found one document exempt from release under section 46(b) of the FOI Act.
Section 46 provides that a document is exempt if public disclosure of the would,
apart from the FOI Act and any immunity of the Crown:
(a)  …
(b)  be contrary to an order made or direction given by a Royal Commission or
by a tribunal or other person or body having power to take evidence on oath;
or
(c)  …
The FOI Guidelines explain at [5.187]:
Document protected by s 46(b) are document subject to an order prohibiting
their publication, made by a Royal Commission, tribunal or other body having
power to take evidence on oath. …
This document I have identified as exempt is subject to a letter of orders from the
Administrative Appeals Tribunal (AAT) concerning proceedings reviewing the
decision [2022] AICmr 33. The orders, inter alia, stated:
7

Evidence given before the Tribunal, the contents of documents received in
evidence by the Tribunal and information otherwise lodged with or given to
the Tribunal, and which relates to this proceeding must not be published
except to the extent that it is contained in the Tribunal’s written reasons for a
decision in the proceeding.
Based on the material before me at this time, I am satisfied that the release of the
document would be contrary to the non-publication order issued by the AAT.
Therefore, I am satisfied that the document is exempt from release on the basis that
it would be contrary to an order given by a tribunal under s 46(b) of the FOI Act.
Proper and efficient conduct of the OAIC’s operations (Section 47E(d))
In accordance with section 47E(d) of the FOI Act, I have also made a decision to
redact material on the basis that disclosure would or could reasonably be expected
to have a substantial adverse effect on the proper and efficient conduct of the OAIC’s
operations.
Paragraph 6.101 of the FOI Guidelines explains that:
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 material that I have decided is subject to conditional exemption comprises of
the OAIC’s password for uploading decisions to the Austlii website.
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, particularly its functions in investigating privacy complaints, conducting
8

Information Commissioner reviews of FOI matters, and in making and publishing
decisions in these matters.
In ‘AW’ and Australian Taxation Office (Freedom of information) [2014] AICmr 1, the
then FOI Commissioner considered the decision by the Australian Taxation Office
(ATO) to exempt user IDs under section 47E(d) of the FOI Act. The user IDs are used by
ATO staff to access the ATO’s IT system. The Commissioner found that disclosing the
user IDs ‘would have an adverse effect on the security of the ATO’s IT systems and could
reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the ATO’. In a series of subsequent IC review decisions, the former
Australian Information Commissioner agreed with the reasoning given by the
Commissioner in ‘AW’ to find that user IDs used by ATO staff to access the ATO’s IT
system are exempt under section 47E(d) of the FOI Act.
I consider that the disclosure of the OAIC’s password could reasonably be expected
to have a substantial adverse effect on the proper and efficient conduct of the OAIC’s
operations. I have decided that the OAIC’s password for Austli is conditionally
exempt from disclosure under section 47E(d) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test.
The public interest test – s 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 at [4]:

… the time at which I make my decision for s 11A(5) requires access to be
given to a conditionally 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.
9

The public interest factors are specified in s 11B(3):

(3) Factors favouring access to the document in the public interest include
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.

The FOI Guidelines provide a further non-exhaustive list of factors favouring
disclosure (see [6.19]). These factors include when disclosure will reveal the reason
for a government decision and any background or contextual information that
informed the decision and when disclosure will enhance the scrutiny of government
decision making. I consider that the only public interest factor favouring disclosure
in this case is that disclosure would promote the objects of the FOI Act general y
through promoting access to government held information.

Against these factors, I must balance the factors against disclosure. Section 11B(4) of
the FOI Act provides factors which are not to be taken into account in , which I have
had regard to. Section 11B does not further prescribe the factors against disclosure
to be considered. In considering the documents subject to this request, I consider
that the follow factors do not favour disclosure:
• disclosure of the OAIC’s password could reasonably be expected to prejudice
the OAIC’s data security, and its efficient operations in making and publishing
its decisions.
On balance, I consider that the factors against disclosure outweigh the factor in
favour of disclosure. I have therefore decided that it would be contrary to the public
interest to give you access to the information that I have found to be conditionally
exempt under s 47E(d) of the FOI Act.
Conclusion
The documents and schedule of documents are enclosed for release.
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely

Molly Cooke
10

Lawyer

31 October 2022

11

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.
12

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 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 have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.

13