I do not agree with the views of a third party in relation to the personal information
contained within 1 document and I have decided to grant access in part to that
document.
Subsection 27(7) of the FOI Act provides that access is not to be given to the
documents until the third party’s review or appeal opportunities have been
exercised or expire.
As a result, this document will not be released to you until all opportunities for
review or appeal in relation to this decision have been exercised or expire. If the third
party applies for internal review with the OAIC, or IC review, the OAIC cannot release
the document until the review is concluded and the time for instituting a review or
appeal has expired.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified 3 documents within the scope of your request. I have made a
decision to:
grant access in full to 2 documents; and
grant access in part to 1 document.
Searches Undertaken
Section 24A of the FOI Act 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.
The following line areas of the OAIC conducted reasonable searches for documents
relevant to you request:
People and Culture
Finance
Legal Services
Executive
Searches were conducted across the OAIC’s various document storage systems
including:
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the OAIC’s case management system - Resolve
the OAIC’s document holding system – Content Manager
OAIC’s email system
general computer files
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
your freedom of information request dated 5 November 2022;
the documents at issue;
relevant case law;
advice from line areas within the OAIC, and submissions made by third parties and
AGS;
the FOI Act, in particular ss 11, 17, 24A and 47F; and
the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines).
Access to edited copies with exempt matter deleted (s 22)
In accordance with section 22 of the FOI Act, an agency must consider whether it
would be reasonably practicable to prepare an edited copy of documents subject to
an FOI request where material has been identified as exempt or irrelevant to the
request.
I have determined that an exemption under the FOI Act applies to material in 1
document. Accordingly, I have an edited copy of that document which removes the
exempt material in accordance with section 22(1)(a)(i).
Document created under s 17 of the FOI Act
Your FOI request contained the following:
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“I also request copy of a document listing cost of expenditure of external legal
services (including the cost of seconding of external lawyers) for the financial
years 2012-2022, by financial year.
I also request a list of external legal firms who have had seconded their
employees to the OAIC, by number of employees seconded, in FY2021-2022 and
FY2020-2021.”
Under section 17 of the FOI Act, if an FOI request is made for a document that could
be produced by using a computer ordinarily available to the agency for retrieving or
collating stored information, an agency is required to deal with the request as if it
was a request for written documents to which the FOI Act applies.
The FOI Guidelines at [3.212] state that the obligation to produce a written document
arises if:
the agency could produce a written document containing the information by
using a ‘computer or other equipment that is ordinarily available’ to the
agency for retrieving or collating stored information (s 17(1)(c)(i)), or making a
transcript from a sound recording (s 17(1)(c)(ii)), and
producing a written document would not substantially and unreasonably
divert the resources of the agency from its other operations (s 17(2)).
I have consulted with the relevant line areas to determine whether production of
written documents containing the requested information is possible. The Finance
team of the OAIC confirmed that a written document could be produced addressing
the second point mentioned above (the list of external legal firms) and advised as
follows regarding the first point:
In the Finance team’s view, production of a document listing expenditure for
the last 10 financial years would substantially and unreasonably divert the
OAIC’s resources from its other operations. The Finance team was able to
produce a document listing the requested information for the financial years
2020-2021 and 2021-2022, which took a full day to produce.
In the OAIC’s financial statements and internal systems, the cost of seconding
external lawyers is not treated as part of the OAIC’s expenditure on legal
services, but rather as a labour cost. This cost has therefore been provided as
a separate figure to the total expenditure on legal services.
Based upon the OAIC’s Finance team consisting of just 3 staff members, and the
broad range of functions the team is responsible for in the day to day operation of
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the OAIC, I consider that producing the requested document, being a document
listing expenditure on external legal services and seconding of external lawyers by
financial year for the financial years 2012-2022, would substantially and
unreasonably divert the resources of the OAIC from its other operations. Instead, I
have granted access to the document created by the Finance team which lists the
requested information for the 2020-2021 and 2021-2022 financial years.
Therefore, pursuant to section 17 of the FOI Act, I have made a decision to create 2
documents in response to your request. I have made a decision to grant full access to
these 2 documents. I note that while not including the cost of seconded lawyers,
further information about our legal expenditure is available on our website at Legal
services expenditure - Home (oaic.gov.au). This may provide you with additional
information you are seeking.
As the document listing external law firms contains the information of private
businesses and another Commonwealth entity, we consulted with those parties
regarding the release of the information. No objections were raised to this document
being released, however the Australian Government Solicitor (AGS) clarified that the
agreement between AGS and the OAIC relating to the relevant financial years was for
lawyers to be outposted to the OAIC on a temporary basis, rather than seconded.
Nonetheless, we have included the AGS information in the document as we consider
this arrangement to fall within the definition of ‘seconded’ for the purpose of your
FOI request.
Personal Privacy (s 47F)
Section 47F of the FOI Act conditionally exempts documents where disclosure would
involve the unreasonable disclosure of personal information of any person. This
exemption is intended to protect the personal privacy of individuals.
In the FOI Act, personal information has the same meaning as in the Privacy Act 1988
(Cth) (Privacy Act). Under section 6 of the Privacy Act, personal information means:
… information or an opinion about an identified individual, or an individual
who is reasonably identifiable:
a) whether the information or opinion is true or not; and
b) whether the information or opinion is recorded in a material form or
not
I have decided that 1 document within the scope of your request contains
information which is conditionally exempt under section 47F of the FOI Act.
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The FOI Guidelines at [6.131] discuss that what constitutes personal information will
vary, depending on whether an individual can be identified or is reasonably
identifiable in the circumstances. For particular information to be considered
personal information, an individual must be identified or reasonably identifiable.
This document contains the name (and by extension, the email address) of an
employee of a private law firm seconded to the OAIC.
I am satisfied that the information is personal information for the purpose of the FOI
Act because the relevant individual can be identified from this information.
Because this information is personal information, I must also consider whether
disclosure would be unreasonable, as set out in section 47F(2) of the FOI Act. In
determining whether disclosure of personal information would be unreasonable,
section 47F (2) of the FOI Act requires me to have regard to the following matters:
the extent to which the information is well known;
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
the availability of the information from publicly accessible sources; and
any additional matters that are relevant.
The information in question is neither well known or publicly available, and the
person to whom the information relates is not known to be associated with the
matters dealt with in the documents (being the management of potential conflicts of
interest arising under secondment arrangements).
The FOI Guidelines further describes key factors for determining whether disclosure
is unreasonable at paragraph 6.142:
the author of the document is identifiable
the documents contain third party personal information
release of the documents would cause stress on the third party
no public purpose would be achieved through release.
Consistent with FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines at paragraph 6.143 explain that other relevant factors include:
the nature, age and current relevance of the information
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any detriment that disclosure may cause to the person to whom the information
relates
any opposition to disclosure expressed or likely to be held by that person
the circumstances of an agency’s collection and use of the information
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
any submission an FOI applicant chooses to make in support of their application
as to their reasons for seeking access and their intended or likely use or
dissemination of the information, and
whether disclosure of the information might advance the public interest in
government transparency and integrity.
In consideration of these factors and the material contained within the documents, I
am satisfied that the release of this personal information would be unreasonable due
to the detriment and stress that disclosure may cause to the individual. As this
individual is a secondee to the OAIC, and not a public servant, they would not
ordinarily expect that information relating to their usual duties would be made
publicly available.
Further, this individual was not involved in the creation of any policies regarding
conflicts of interest, nor were they in a position responsible for managing any real or
potential conflicts, and I therefore do not consider that disclosure of this information
may advance the public interest in government transparency or provide you with any
further insight into how real or potential conflicts of interests are managed by the
OAIC.
The FOI Guidelines at paragraph 6.171 state:
An agency or minister must have regard for any submissions made before
deciding whether to give access to the document (ss 27A(3) and 27A(4)). The
third party does not, however, have the right to veto access and agencies
should take care that the third party is not under such a misapprehension.
I have also had regard to the submissions of relevant third party in respect of the
release of the personal information contained within the document. The third party
raised concerns that disclosure may cause them stress as I have already discussed,
while also identifying that disclosure is unlikely to advance the public interest in
government transparency.
For the reasons given above, I consider that the relevant document identified in the
schedule are conditionally exempt under section 47F of the FOI Act. As I do not agree
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with the views raised by a third party in relation to some of the information
contained in this document, this document will not be released to you until all
opportunities for review or appeal in relation to this decision have been exercised or
expire.
As section 47F is a conditional exemption, I am also required to consider the
application of a public interest test, which is discussed below.
The public interest test (s 11A(5))
An agency cannot refuse access to conditionally 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 document I have found to be
conditionally exempt under section 47F 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. In my view, the relevant public interest factor in favour of
disclosure in this case is that disclosure would promote the objects of the FOI Act in
generally by informing the community of the Government’s operations and
enhancing the scrutiny of government decision making.
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 following relevant
public interest factor against disclosure in this case is that disclosure could
reasonably be expected to prejudice an individual’s right to privacy.
On balance, I consider that the factors against disclosure outweighs the factors in
favour of disclosure. The conditionally exempt information (being the name of a
secondee to the OAIC) would do little to advance the objects of the FOI Act. While
disclosure of any information related to decisions made by government can
generally advance the objects of the FOI Act, this information adds little utility or
context to the information already provided by the document. The document I have
decided to release to you already contains the information requested by you without
this conditionally exempt material being provided.
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I have therefore decided that it would be contrary to the public interest to give you
access to the information that I have found to be conditionally exempt under section
47F of the FOI Act. As stated above, the information that I have found to be
conditionally exempt has been deleted (as noted in the schedule and the document)
and the remainder of the document will been provided to you once all opportunities
for review or appeal by a third party in relation to this decision have been exercised
or expire.
Release of documents
Because relevant third parties were consulted in the making of this decision and
have objected to release of the material contained in 1 document, I am required
under section 27A of the FOI Act to advise them of my decision and provide them
with an opportunity to seek:
Internal review of my decision, or
Review of my decision by the Information Commissioner.
The third party has 30 days from the date they are notified of my decision in which to
seek review.
As a result, the documents which are subject to third party consultation review rights
cannot be released to you until this review period has expired, or any internal or
external review proceedings have finalised.
The remainder of the documents not subject to third party objections are enclosed
for release.
The documents are identified in the attached schedule of documents.
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Molly Cooke
Lawyer
4 January 2023
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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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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_
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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 have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.
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