DEFENCE FOI 197/22/23 - STATEMENT OF REASONS UNDER THE FREEDOM
OF INFORMATION ACT 1.
I refer to the application submitted on 12 October 2022 by BE (the applicant) under the
Freedom of Information Act 1982 (FOI Act) for access to:
…a copy of the current version of each of the following documents. If there is no
current version, I seek access to the final version of the QTB/Hot Issue Brief.
Documents 0, 1, 3, 11, 14, 17, 18, 20.
Background
2.
The document titles referenced by document numbers are outlined below:
0. LAND 400 Phase 3 - Land Combat Vehicle Systems (Infantry Fighting Vehicle)
1. Australia's Future Submarine Capability
3. Defence Strategic Review including Defence Industry Development Strategy
11. Defence Spending, Delivery and Projects of Concern
14. Bolster Defence's Naval Power (including Shipbuilding, Hunter Class Frigates
and Attack Class contract settlement)
17. Status of LAND projects in pipeline/pre-decisional
18. Port of Darwin review
20. Review of ADF Recruitment and Retention
FOI decision maker
3.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
4.
I have identified eight (8) documents as matching the description of the request.
Exclusions
5.
Personal email addresses, signatures, PMKeyS numbers and mobile telephone numbers
contained in documents that fall within the scope of the FOI request, duplicates of
documents, and documents sent to or from the applicant are excluded from this request.
Defence has only considered final versions of documents.
Decision
6.
I have decided to partially release eight (8) documents in accordance with section 22
[access to edited copies with exempt or irrelevant matter deleted] of the FOI Act, on the
grounds that the deleted material is considered exempt under sections 47C [public interest
conditional exemptions - deliberative processes] and 47E(d) [public interest conditional
exemptions - operations of an agency] of the FOI Act.
Material taken into account
7.
In making my decision, I had regard to:
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a. the terms of the request
b. the content of the identified documents in issue
c. relevant provisions in the FOI Act
d. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines)
e. advice sought from subject matter experts within Defence.
Reasons for decision
Section 47C – Public interest conditional exemptions – Deliberative Processes
8.
Section 47C of the FOI Act states:
(1) A document is conditionally exempt if its disclosure 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
process involved in the functions of…an agency…or a Minister.
9.
I considered the question of whether the information is purely factual. In relation to
section 47C considerations under the FOI Act, I have taken into account the Guidelines at
6.66 which clarifies ‘purely factual material’ that would not be regarded as deliberative
matter would include:
a. content that is merely descriptive;
b. incidental administrative content;
c. procedural or day to day content;
d. the decision of conclusion reached at the end of the deliberative process;
e. matter that was not obtained, prepared or recorded in the course of, or for the
purposed of, a deliberative process.
10.
I have also taken into account further detail in the Guidelines (6.73) that advise
“‘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’.
11.
The redacted material is communicating deliberative matter for the preparation of
Parliament and is not factual information. There is a risk, release of the deliberative matter
would harm the smooth operation of Defence business including the ability for Defence to
present and communicate frank preliminary advice at the highest levels to the Government.
12.
Taking the above into consideration, I am satisfied that the material contained in one
brief is conditionally exempt under section 47C of the FOI Act.
13.
Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it
must be disclosed unless, in the circumstances access to the document at that time would, on
balance, be contrary to the public interest. My public interest considerations are detailed
below.
Section 47E - Public interest conditional exemptions – certain operations of agencies
14.
Section 47E(d) of the FOI Act states:
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A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
….
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
15.
In relation to subsection 47E(d) of the FOI Act, paragraph 6.123 of the Guidelines
states:
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that
is, the agency is undertaking its expected activities in an expected manner.
16.
Upon examination of the documents, I identified information of individuals’ details
including their name and contact information. I considered that the material could reasonably
be expected to have a substantial adverse effect on the proper and efficient conduct of the
operations of Defence.
17.
The names of the individuals, as well as direct contact information in the document
including phone numbers, have not been released. It is submitted that the release of this
specified information, which is not publicly available, would create opportunity for third
parties to ascertain commercially valuable information through an improper communication
channel. Defence has dedicated avenues of communication for interfacing with the public
which are best supported for contact in these instances.
18.
It is further submitted that the release of this information could be reasonably expected
to affect the ability of the individual to undertake their role. The release of staff names could
see those individuals targeted as their roles in Defence are not widely known and could
attract attention through publication.
19.
In conclusion, I am satisfied that parts of the documents are conditionally exempt under
section 47E(d) of the FOI Act.
20.
Section 11A(5) of the FOI Act requires an agency to allow access to an exempt
document unless, in the circumstances, access to the document would, on balance, be
contrary to the public interest. My public interest considerations are detailed below
Sections 47C and 47E - Public interest considerations
21.
I have found that the identified material conditionally exempt under sections 47C and
47E of the FOI Act.
22.
In assessing whether disclosure of the conditionally exempt material is, on balance,
contrary to the public interest, I considered the range of relevant factors that favour access to
a document set out in section 11B(3) [Public interest exemptions – factors] of the FOI Act.
While disclosure may promote some of the objects of the FOI Act, I do not consider it would
increase public participation in government processes, nor would it increase scrutiny or
discussion of government activities.
23.
In coming to my decision, I have had regard to the Guidelines, specifically paragraph
6.22 in relation to public interest factors against disclosure and found that the identified
material, if released:
a. could reasonably be expected to prejudice an agency’s ability to obtain
confidential information;
b. could reasonably be expected to prejudice an agency’s ability to obtain similar
information in the future;
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c. could reasonably be expected to prejudice the management function of an
agency.
24.
None of the factors listed in section 11B(4) of the FOI Act were taken into account
when making this decision.
25.
I am satisfied, based on the above particulars, the public interest factors against
disclosure outweigh the factors for disclosure and the information exempt under sections 47C
and 47E of the FOI Act.
kathryn.burke Digitally signed by kathryn.burke
Date: 2022.12.22 07:35:02 +11'00'
Kathryn Burke
A/g Director
Freedom of Information
Associate Secretary Group
