PO Box 7820 Canberra BC ACT 2610
22 December 2022
Our reference: LEX 70430
Mr Jon Lawrence (Right to Know)
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Lawrence
Decision on your Freedom of Information Request
I refer to your request dated and received by Services Australia (the Agency) on
2 November 2022 for access under the
Freedom of Information Act 1982 (the FOI Act) to the
following documents:
I request access to any documents relating to any cost-benefit analysis or privacy risk
assessment relating to the decision to develop an inhouse authentication app - myGov
Code Generator.
My decision
The Agency holds one document (totalling 12 pages) that relates to your request.
I have decided to:
refuse access to this one document (Document 1), and
refuse your request for any document relating to a cost-benefit analysis, under section
24A of the FOI Act on the basis that all reasonable steps have been taken to locate the
document that you have requested and I am satisfied it does not exist.
I have decided that Document 1 is exempt in its entirety because it contains:
material subject to legal professional privilege (section 42 of the FOI Act), and
deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C of the FOI Act).
Please see the schedule at
Attachment A to this letter for a detailed list of the document and
the reasons for my decision, including the relevant sections of the FOI Act.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways you
can do this. You can ask for an internal review from within the Agency, or an external review
PAGE 1 OF 8
by the Office of the Australian Information Commissioner. See
Attachment B for more
information about how to request a review.
Further assistance
If you have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Leanne
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
PAGE 2 OF 8
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
I request access to any documents relating to any cost-benefit analysis or privacy risk
assessment relating to the decision to develop an inhouse authentication app - myGov
Code Generator.
What I took into account
In reaching my decision I took into account:
your request dated 2 November 2022
other discussions and correspondence with you
the documents that fall within the scope of your request
whether the release of material is in the public interest
consultations with Agency officers about:
o the nature of the documents
o searches conducted for the documents requested
o the Agency's operating environment and functions
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the Guidelines), and
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the document you requested is exempt in its entirety under section 42 and
section 47C of the FOI Act. My findings of fact and reasons for deciding that the exemptions
apply to the document are discussed below.
Legal professional privilege
I have applied the exemption in section 42 of the FOI Act to Document 1 in its entirety.
This section of the FOI Act allows the Agency to exempt a document from disclosure if it is
subject to legal professional privilege (LPP).
The FOI does not define LPP. Courts have held that deciding whether a communication is
privileged requires a consideration of:
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
PAGE 4 OF 8
whether the advice given is independent, and
whether the advice given is confidential.
The document you have requested contains legal advice provided by the Agency’s in-house
Legal Services Division.
I am satisfied that:
the Agency’s Legal Services Division were acting in their capacity as professional legal
advisers that there was a clear adviser-client relationship in relation to Document 1
Document 1 was prepared for the dominant purpose of providing legal advice on
specific matters
the Agency’s organisational structure affords independence to the Legal Services
Division, allowing members to provide independent legal advice, and
the advice given in Document 1 was confidential and has not been used in any way
which is inconsistent with maintaining that confidentiality.
Therefore, I am satisfied that Document 1 is a document to which LPP attaches.
I am also satisfied that privilege in these communications has not been waived as the
document has not been distributed further than is reasonably necessary for internal operational
purposes.
For the reasons set out above, I am satisfied that the document is exempt under section 42 of
the FOI Act.
Deliberative processes
Section 47C of the FOI Act provides a document is conditionally exempt if it would disclose
deliberative matter. Deliberative matter is an opinion, advice or recommendation, or a
consultation or deliberation that has taken place in the course of, or for the purposes of, the
deliberative processes of an Agency. Material which is operational or purely factual information
is not deliberative matter. The deliberative exemption also does not apply to reports of scientific
or technical experts, reports of a body or organisation prescribed by the regulations, or a formal
statement of reasons.
I am satisfied Document 1 contains deliberative matter, being advice and recommendations,
which have been prepared by the Agency’s Legal Services Division. I am also satisfied the
document is not operational information or purely factual information, and otherwise not of a
kind specifically excluded by the FOI Act.
Accordingly, I find that the document is also conditionally exempt, in full, under section 47C(1)
of the FOI Act.
I consider the disclosure of the material may generally promote the objects of the FOI Act,
which is in the public interest. However, I also consider disclosure is likely to inhibit frankness
and candour, including in the provision of comprehensive legal advice, in relation to the
assessment of privacy issues. This would in turn compromise the Agency’s capacity to
deliberate on the options available to mitigate privacy management risks associated with the
implementation of new and existing projects.
PAGE 5 OF 8
As such, I find that any public interest in favour of disclosing the material is outweighed by the
public interest against disclosure.
Documents do not exist
Section 24A of the FOI Act permits an Agency to refuse a request for access to documents if
all reasonable steps have been taken to find the document, and the Agency is satisfied the
document cannot be found, or does not exist.
The Data Online Systems Branch (the Branch) conducted searches of the Agency’s electronic
and paper files for the documents requested. This Branch did not identify any documents
relating to a cost benefit analysis. The Branch advised that no cost benefit analysis was
conducted, as the Authenticator App was an enhancement measure based on customer
feedback and complaints.
On the basis of the searches conducted, and the information provided by the Branch, I am
satisfied that in accordance with section 24A of the FOI Act, all reasonable steps have been
taken to find the document and the document requested does not exist.
Summary of my decision
In conclusion, I have decided to:
refuse access to one document (Document 1), and
refuse your request for access to any document relating to any cost-benefit analysis
under section 24A of the FOI Act on the basis that all reasonable steps have been
taken to locate the document that you have requested and I am satisfied it does not
exist.
I have decided that Document 1 is exempt, in full, under sections 42 and 47C of the FOI Act,
and disclosure of conditionally exempt material would be contrary to the public interest for the
purposes of section 11A(5) of the FOI Act.
PAGE 6 OF 8
PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an FOI decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act) gives
you the right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act,
you can apply for a review of an FOI decision by:
1. an Internal Review Officer in Services Australia (the Agency); and/or
2. the Australian Information Commissioner.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the Agency delegate who made
the original decision will carry out the review. The Internal Review Officer will consider all
aspects of the original decision and decide whether it should change. An application for internal
review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the Agency within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original
FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
PAGE 7 OF 8
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note: The Office of the Australian Information Commissioner generally prefers FOI applicants
to seek internal review before applying for external review by the Australian Information
Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Services
Australia decision on your FOI request
Include your contact details
Set out your reasons for objecting to the Agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by an
Agency in the exercise of powers or the performance of functions under the FOI Act, There is
no fee for making a complaint. A complaint to the Australian Information Commissioner must
be made in writing. The Australian Information Commissioner's contact details are:
Telephone: 1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
Agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be made
in person, by telephone or in writing. The Commonwealth Ombudsman's contact details are:
Phone: 1300 362 072
Website: www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 8 OF 8
