Our ref: LEX 1075IR
15 April 2023
ME (Right to Know)
By email: firstname.lastname@example.org
Dear Sir / Madam,
Internal review of Freedom of Information decision – LEX 1075IR
I refer to your request for internal review of the AFP’s decision dated 31 October 2022 under
the Freedom of Information Act 1982
Attached at Annexure A to this letter is my decision and statement of reasons for that
General Counsel, Operations Legal
Chief Counsel Portfolio
FREEDOM OF INFORMATION
Australian Federal Police
ABN 17 864 931 143
GPO Box 401 Canberra City ACT 2601 |
Telephone: 02 5126 9366
| Email: email@example.com
afp gov au
STATEMENT OF REASONS RELATING TO AN INTERNAL REVIEW OF AN FOI DECISION BY
ME (RIGHT TO KNOW)
I, Alison Macdonald, General Counsel, Operations Legal, am an officer authorised under
section 23 of the Act to review original decisions made and make new decisions on behalf of
the Australian Federal Police (AFP
What follows is my decision and reasons for the decision in relation to your request for
On 5 October 2022 the AFP received your request in the fol owing terms:
I request a copy of any legal advice in the AFP's possession, dated on or after 1
January 2019, whether internal or external, that relates to s 2.2.9 or s 2.2.10 of the
Superannuation (PSSAP) Trust Deed.
On 31 October 2022, the AFP notified you of its decision to exempt one document (the
) in ful under section 42(1) of the Act (the original decision
On 1 November 2022, you wrote to the AFP requesting an internal review of the decision as
I am writing to request an internal review of Australian Federal Police's handling of my
FOI request 'Legal advice regarding PSSap Trust Deed'.
I note there is one document relating to this request, and that the sole reason for non-
disclosure is LPP.
The decision did not consider s 42(3), requiring disclosure of any/all operational
information contained in the requested document, even if the document is subject to LPP.
In addition, the AFP is free to waive LPP and release the document under 42(2). I draw
the decision-maker’s attention to (1) the Commonwealth’s poor record of considering legal
commonwealth/101596246) and (2) the AFP’s commitment to increase transparency and
integrity by only withholding information for a good reason, not just because it can
That being the case I request:
(1) the document be released in full (excl staff info etc); and
(2) if not released in full, reasons for decision be given concerning 42(2); or
(3) operational information be released; and
(4) if operational information not released, reasons for decision be given concerning 42(3).
We apologise for the delay in providing you with an internal review decision.
EVIDENCE/MATERIAL ON WHICH MY FINDINGS WERE BASED
In reaching my decision, I have relied on the fol owing:
• the original decision;
• the document;
• the submissions you provided in support of your request for internal review;
• the Act; and
• the guidelines issued by the Office of the Australian Information Commissioner
(OAIC) under section 93A of the Act.
I have decided to affirm the original decision. My reasons for this decision are set out below.
REASONS FOR DECISION
In relation to the application of legal professional privilege to the document, I rely on the
reasons provided in the original decision.
In response to your request for internal review of the original decision, I have considered the
following sections of the Act:
• section 42(2) – waiver
Section 42(2) confirms a document is not exempt under section 42(1) if the person
entitled to claim legal professional privilege waives that privilege.
The AFP has not waived privilege over the document.
• section 42(3) – operational information
Section 42(3) confirms a document is not exempt under section 42(1) by reason only
of the inclusion of operational information in that document. ‘Operational
information’ is further defined in section 8A of the Act to include information held by
an agency to assist that agency in performing or exercising their functions or powers
in making decisions or recommendations affecting members of the public or any
particular person or entity or class of persons or entities.
The document was prepared in response to a specific legal issue and is not for wider
or general use within the AFP. I am therefore satisfied the document does not contain
***YOU SHOULD READ THIS GENERAL ADVICE IN CONJUNCTION WITH THE LEGISLATIVE
REQUIREMENTS IN THE FREEDOM OF INFORMATION ACT 1982***
REVIEW AND COMPLAINT RIGHTS
If you are dissatisfied with a Freedom of Information decision made by the AFP, you can apply
for a review by the Information Commissioner (IC).
For complaints about the AFP’s actions in processing your request, you do not need to seek
review by either the AFP or the IC in making your complaint.
REVIEW RIGHTS under Part VII of the Act
Review by the Information Commissioner
Section 54L of the Act gives you the right to apply to the IC for review of this decision. In making
your application you wil need to provide an address for notices to be sent (this can be an email
address) and a copy of the AFP decision.
Section 54S of the Act provides the timeframes for an IC review submission. For an access refusal
covered by section 54L(2), the application must be made within 60 days. For an access
covered by section 54M(2), the application must be made within 30 days.
Applications for IC review may be lodged by email (firstname.lastname@example.org), using the OAIC’s online
application form (available at www.oaic.gov.au) or addressed to:
Office of the Australian Information Commissioner
GPO Box 5128
Sydney NSW 2001
The IC encourages parties to an IC review to resolve their dispute informal y, and to consider
possible compromises or alternative solutions to the dispute in this matter. The AFP would be
pleased to assist you in this regard.
If you are unhappy with the way we have handled your FOI request, please let us know what we
could have done better. We may be able to rectify the problem. If you are not satisfied with our
response, you can make a complaint to the IC. A complaint may be lodged using the same
methods identified above. It would assist if you set out the action you consider should be
investigation and your reasons or grounds.
More information about IC reviews and complaints is available on the OAIC’s website at