OFFICIAL: Sensitive
• relevant case law
• the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act.
• Submissions made by relevant third parties
Whether reasonable steps were taken to find documents- s24A
Section 24A requires that an agency take ‘all 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, who conducted
searches and located documents on the OAIC’s case management system
Resolve
Based on the searches conducted, I am satisfied that all reasonable steps have been
taken to find the documents in scope of your FOI request.
Access to edited copies with irrelevant and exempt matter deleted- s22
I have found that the 38 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 38 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.
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OFFICIAL: Sensitive
Certain operations of agencies exemption-s47E(d)
I have found 17 documents to be exempt in full and 1 document to be exempt in part
under section 47E(d) of the FOI Act.
17 documents exempt in ful
The information within the 17 documents that I have found to be exempt in full is
material that relates to Information Commissioner reviews that are stil open and stil
being determined by the OAIC.
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.
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.
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 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’.
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OFFICIAL: Sensitive
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 Australian Information Commissioner’s privacy
powers, freedom of information powers and regulatory powers, under the Australian
Information Commissioner Act 2010 (Cth) (AIC Act), the Privacy Act 1988 (Cth) (‘The
Privacy Act’) and the Freedom of Information Act 1982 (Cth) (‘The FOI Act’). Under the
AIC Act and the FOI Act, the Information Commissioner has a 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, as wel as assessing and making decisions on
vexatious applicant declarations.
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 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 full to 17 documents that relate to Information Commissioner
reviews that are current and ongoing. Given that these reviews remain open, I consider
that while the matter is on foot, disclosure of the relevant material at this stage can
impede the efficient conduct of the case. Specifically, review 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 reviews. Parties to the review 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 review, it is
appropriate for the parties to the review to be advised of that outcome. The OAIC’s
Freedom of Information Regulatory Action Policy advises at paragraph 73 that the
Information Commissioner wil generally not comment publicly about ongoing IC
review applications.
The release of this information at this time to a third party who is not a party to these
reviews 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
reviews are still being investigated. While you have excluded the personal information
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OFFICIAL: Sensitive
of private individuals from the scope of your request, the documents contain
information particular to these IC reviews that was provided to the OAIC for the
purposes of conducting IC reviews.
I consider that at this time disclosure of this material to you via the Right to Know
website, when the IC review is 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 conducting IC reviews.
1 document exempt in part
I have found one document exempt in part under s47E(d). The information within the
1 document that I have found to be exempt in part is material that relates to the
operations of the Department for Home Affairs (‘DHA’) in matters concerning
Commonwealth security.
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 DHA, I have taken into consideration the functions and activities of the DHA.
The information contained within the 1 document provides detailed information on
the operations of the DHA in managing security threats to the Commonwealth.
I therefore consider that it can reasonably be expected that the disclosure of the
material would have a substantial adverse effect on the DHA’s operations in upholding
Commonwealth security.
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 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 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. 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.
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OFFICIAL: Sensitive
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 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 Information
Commissioner review functions of the OAIC.
• Could reasonably be expected to prejudice the DHA’s ability to investigate and
s55G matters in the future
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 full 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
Based on the advice of the Records Officer who conducted the searches, the terms of
your request, and searches undertaken, I am satisfied that all reasonable steps have
been taken to find documents that fall within the scope of your request.
As already mentioned, I have decided to grant access in part to 38 documents and
refuse access in ful for 17 documents found within the scope of your request.
The documents are currently being prepared for release and will be provided to you
by close of business Tuesday 1 November 2022. Please see the fol owing page for
information about your review rights.
Yours sincerely,
Alessia Mercuri
Lawyer
Legal Services
31 October 2022
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OFFICIAL: Sensitive
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.
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OFFICIAL: Sensitive
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 am of the view that the documents I have decided to release to you do not contain
personal information that would be unreasonable to publish. As a result, the
documents will be published on our disclosure log.
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