25 January 2023
Mr O Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA22/12/00091
File Number:
FA22/12/00091
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 30 November 2022, the Department of Home Affairs (the Department) received a request
for access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents, revised on 13 December 2022 in
response to a request for an extension of time:
Under the Freedom of Information Act 1982 (FOI Act), I am seeking access to all
ministerial briefs to the office of the Minister for Immigration, Citizenship and
Multicultural Affairs about options to change Australian citizenship ceremonies or
requirements in relation to Australian citizenship ceremonies.
The date range for this document request covers the period 22 May 2022 to the
date this request is actioned.
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to:
•
the terms of your request;
•
the documents relevant to the request;
•
the FOI Act;
•
the Guidelines published by the Office of the Australian Information
Commissioner (OAIC) under section 93A of the FOI Act (the FOI Guidelines); and
•
advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access.
4
Documents in scope of request
The Department has identified six documents (three Ministerial Briefs and associated
attachments) as falling within the scope of your request. These documents were in the
possession of the Department on 30 November 2022 when your request was received.
The schedule at
Attachment A describes the relevant documents.
5
Decision
The decision in relation to the documents in the possession of the Department, which fall within
the scope of your request is as follows:
•
Release one document in full;
•
Release four documents in part with deletions; and
•
Exempt one document in full from disclosure.
The schedule at
Attachment A sets out my decision in relation to each of the documents.
6
Reasons for Decision
Detailed reasons for my decision are set out below.
Where the schedule at
Attachment A indicates an exemption claim has been applied to a
document or part of document, my findings of fact and reasons for deciding that the exemption
provision applies to that information are set out below.
6.1 Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose
information that would reasonably be regarded as irrelevant to the request, it is possible for the
Department to prepare an edited copy of the document, modified by deletions, ensuring that the
edited copy would not disclose any information that would reasonably be regarded as irrelevant
to the request.
On 13 December 2022, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI
request.
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I have decided that parts of documents marked ‘s22(1)(a)(i )’ would disclose information that
could reasonably be regarded as irrelevant to your request. I have prepared an edited copy of
the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI
Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the
functions of an agency, a Minister, or the Government of the Commonwealth.
‘
Deliberative matter’ includes 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, deliberative processes.
‘
Deliberative processes’ generally involve “
the process of weighing up or evaluating competing
arguments or considerations”1 and the ‘
thinking processes – the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’2
The documents contain opinion, advice and recommendations prepared or recorded in the
course of, or for the purposes of, deliberative processes. I am satisfied that this deliberative
matter relates to a process that was undertaken within government to consider whether and
how to make or implement a decision, revise or prepare a policy, administer or review a
program, or some similar activity. 3
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I
have had regard to the fact that “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.4 A factual
summary prepared to aid a complex issue may be classed as purely factual material, but may
also be of a character as to disclose a process of section involving opinion, advice or
recommendation. As such, a conclusion which involves a deliberative process may well prevent
material from being purely factual5.
I am further satisfied that the factors set out in subsection 47C(3) do not apply in this instance.
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
4
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
5
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
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I have decided that the information is conditional y exempt under section 47C of the FOI Act.
Access to a conditionally exempt document must generally be given unless it would be contrary
to the public interest to do so. I have turned my mind to whether disclosure of the information
would be contrary to the public interest, and have included my reasoning in that regard at
paragraph 6.4 below.
6.3 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not,
and whether the information or opinion is recorded in a material form or not (see section 4 of
the FOI Act and section 6 of the
Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role or
employment circumstance.
The FOI Act states that, when deciding whether the disclosure of the personal information
would be ‘unreasonable’, I must have regard to the following four factors set out in s.47F(2) of
the FOI Act:
•
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 available resources;
•
any other matters that I consider relevant.
I have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a
limited group of people with a business need to know. As this information is only known to a
limited group of people, the individual(s) concerned is/are not generally known to be associated
with the matters discussed in the document. This information is not available from publicly
accessible sources.
I do not consider that the information relating specifical y to the third parties would be relevant
to the broader scope of your request, as you are seeking access to the content of the
documents rather than information which wholly relates to other individuals.
I am satisfied that the disclosure of the information within the documents would involve an
unreasonable disclosure of personal information about a number of individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless it
would be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.4 below.
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6.4 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and
3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure; or
(d) allow a person to access his or her own personal information.
Having regard to the above I am satisfied that:
•
Access to the documents would promote the objects of the FOI Act.
•
The subject matter of the documents does have the character of public importance
and that there may be broad public interest in the documents.
•
No insights into public expenditure wil be provided through examination of the
documents.
•
You do not require access to the documents in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditional y
exempt information in the documents:
•
A Ministerial Submission plays an important role in the relationship between a
Department and its Minister. Its purpose is to provide frank and honest advice. It is
inherently confidential between the Department and its Minister and the preparation
of a Ministerial Submission is essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
o
concerns existing in the open and honest nature of advice being provided
which may then hinder future deliberations and decision making processes for
the Department and the Government as a whole; and
o
future Ministerial Submissions being prepared with a different audience in
mind, which would compromise the quality of the advice being prepared for
the Minister.
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•
I consider that the public interest in protecting the process of the provision of free
and honest confidential advice by a Department to its Minister has, on balance,
more weight, than the public interest that might exist in disclosing the deliberative
matter. Endangering the proper working relationship that a Department has with its
Minster and its ability to provide its Minister with honest advice confidential y would
be contrary to the public interest.
•
Disclosure of the personal information which is conditionally exempt under
section
47F of the FOI Act could reasonably be expected to prejudice the protection of
those individuals' right to privacy.
•
The Department is committed to complying with its obligations under the
Privacy
Act 1988 (the Privacy Act)
, which sets out standards and obligations that regulate
how the Department must handle and manage personal information. It is firmly in
the public interest that the Department uphold the rights of individuals to their own
privacy and meets its obligations under the Privacy Act. I consider that non-
compliance with the Department’s statutory obligations concerning the protection of
personal information would be contrary to the public interest and that this factor
weighs strongly against disclosure.
I have also had regard to section 11B(4), which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that
the disclosure of the conditionally exempt information in the documents would be contrary to
the public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at www.legislation.gov.au/Series/C2004A02562. If you are
unable to access the legislation through this website, please contact our office for a copy.
8
Your Review Rights
You may apply directly to the OAIC for a review of this decision. You must apply in writing
within 60 days of this notice. For further information about review rights and how to submit a
request for a review to the OAIC, please see www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/.
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9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
•
Phone 1300 363 992 (local call charge)
•
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify
the Department of Home Affairs as the relevant agency.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely
Anne Leo
Position No. 00003355
Authorised Decision Maker
Department of Home Affairs
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