PO Box 7820 Canberra BC ACT 2610
20 January 2023
Our reference: LEX 71199
LEX 70430
Jon Lawrence
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir / Madam,
Freedom of Information Request – Internal Review Decision
I refer to your request for internal review of the Freedom of Information (FOI) decision made
by an authorised decision maker of Services Australia (the Agency) on 22 December 2022
(LEX 70430).
Background
On 2 November 2022, you made a request under the
Freedom of Information Act 1982 (Cth)
(FOI Act) in the following terms:
I request access to any documents relating to any cost-benefit analysis or privacy risk
assessment relating to the decision to develop an in-house authentication app - myGov
Code Generator.
On 22 December 2022, the Agency issued a decision to you refusing access to one document
on the basis of section 42 and 47C of the FOI Act.
On 22 December 2022, you wrote to the Agency requesting internal review of the original
decision as you did not believe that the decision was justified under the above sections of the
FOI Act.
Internal review decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal review
decisions under section 54C of the FOI Act. Consistent with the requirements of section 54C(2)
of the FOI Act, I have made a fresh decision.
The Agency holds one document (12 pages) that meets the scope of your request.
I have decided to
refuse access to the document on the basis that it contains material subject
to legal professional privilege (section 42 exemption).
Please see the Schedule at
Attachment A to this letter for a detailed list of the documents and
the reasons for my decision, including relevant sections of the FOI Act.
Further assistance
If you have any further questions about your internal review, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
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PO Box 7820 Canberra BC ACT 2610
Yours sincerely
Allison
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
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PO Box 7820 Canberra BC ACT 2610
Attachment A
REASONS FOR DECISION
What you requested
On 2 November 2022, 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. On 8 September 2022, the Agency contacted you about your original
request. On 9 September 2022, you revised your original request and agreed to an
extension of time by email.
The Agency issued you with the original decision on 22 December 2022 refusing access to the
document on the basis it contains material subject to legal professional privilege, and
deliberative material the disclosure of which would be against the public interest.
You applied for internal review on 22 December 2022, stating:
I am writing to request an internal review of Services Australia's handling of my FOI
request 'Documents relating to cost-benefit analysis and privacy risk assessment of
decision to develop an inhouse authentication app'.
Having reviewed the response I received on 22 December 2022 and the relevant
sections of the Act that this response refers to in justifying the decision to refuse my
request (s42 & s47C), I do not believe that this decision to refuse release of the
document Privacy Assurance Advice from 20 October 2017 is in fact justified under
those sections of the Act.
The Agency acknowledged your internal review request on 3 January 2023.
What I took into account
In reaching my decision I took into account:
your original request dated 2 November 2022
your request for internal review dated 22 December 2022
correspondence with you
the document that falls 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, and
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.
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PO Box 7820 Canberra BC ACT 2610
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to refuse access to the document in full. My findings of fact and reasons for
deciding the exemption applies to that document is discussed below.
Section 42 of the FOI Act – legal professional privilege
This section of the FOI Act allows the Agency to redact documents or parts of documents
subject to legal professional privilege (LPP). I have applied this exemption to the document in
full.
Section 42 of the FOI Act provides:
(1) 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.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the document
in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Paragraphs 5.128 and 5.129 of the Guidelines provide the following guidance in relation to the
application of section 42:
LPP applies to some but not all communications between legal advisers and clients.
The underlying policy basis for LPP is to promote the full and frank disclosure between
a lawyer and client to the benefit of the effective administration of justice. It is the
purpose of the communication that is determinative. The information in a document is
relevant and may assist in determining the purpose of the communication, but the
information in itself is not determinative.
At common law, determining 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
whether the advice given is independent
whether the advice given is confidential.
(internal references omitted)
Did a legal adviser-client relationship exist?
The Guidelines provide the following in relation to in house lawyers at paragraph 5.131:
The following factors are relevant to establishing whether a legal adviser-client
relationship exists:
the legal adviser must be acting in his/her capacity as a professional legal adviser
the giving of the advice must be attended by the necessary degree of
independence
the dominant purpose test must be satisfied
the advice must be confidential
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PO Box 7820 Canberra BC ACT 2610
the fact that the advice arose out of a statutory duty does not preclude the
privilege from applying
whether the lawyer is subject to professional standards can be relevant.
The document relevant to this matter contains professional legal advice that was developed
and provided by qualified and practising lawyers in the Agency’s Legal Services Division (the
Division). The relevant branch within the Division has advised me that this type of document,
a Privacy Assurance Advice, is legal advice provided to assist business areas when developing
projects to ensure consistency with legislative requirements both in the
Privacy Act 1988 (Cth)
and relevant programme legislation. I am of the view that the advice was provided as a result
of a request for legal advice from the business area when developing the myGov MAP, WAP
and Authentication App project.
The Agency’s organisational structure affords independence to the Division, allowing its
members to provide independent legal advice. I am satisfied that the authors were acting in
their capacity as professional legal advisors and that the authors were legal practitioners
subject to legal professional standards.
I am satisfied that the document is advice provided by a professional legal adviser acting with
the required level of independence to the client, and that there was a clear adviser-client
relationship.
Does the document attract privilege?
Paragraph 5.136 of the Guidelines provides:
Whether LPP 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. The
communication may have been brought into existence for more than one purpose but
will be privileged if the main purpose of its creation was for giving or receiving legal
advice or for use in actual or anticipated litigation.
(internal references omitted)
For the reasons outlined above, I am satisfied that the document was created for the dominant
purpose of providing legal advice to the branch responsible for the myGov MAP, WAP and
Authentication App project, and was received by that branch. The advice was provided by a
qualified lawyer acting with the requisite degree of independence.
Has privilege been waived?
Section 42(2) of the FOI Act provides a document is not exempt where LPP is waived.
I am satisfied that privilege has not been waived as the document has not been distributed
further than is reasonably necessary for internal operational purposes. It is marked as legally
sensitive and I am satisfied that the legal advice contained within the documents has not been
used in any way which is inconsistent with maintaining its confidentiality.
Conclusion
I have decided to refuse you access to the document on the basis it is exempt in full under
sections 42 of the FOI Act as it contains material subject to LPP.
.
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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 a FOI decision
If you still believe a decision is incorrect, the FOI Act gives you the right to apply for a review
of the decision. Under section 54L of the FOI Act, you can apply for a review of an FOI decision
by the Australian Information Commissioner.
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
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
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 Agency’s
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
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PO Box 7820 Canberra BC ACT 2610
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
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