FOIREQ2200423 Decision.pdf

I have identified 39 documents within the scope of your request. I have made a
decision to:
•  grant you access to 32 documents in full; and
•  grant you access to 7 documents in part.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
•  your freedom of information request dated 4 December 2022;
•  the documents at issue;
•  relevant case law;
•  consultation with other Commonwealth agencies and third parties;
•  the FOI Act, in particular ss 3, 11, 11A, 15, 22, 26 and 47E(d); and
•  the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines).
Access to edited copies with irrelevant and 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.
Exempt material
I have determined that exemptions under the FOI Act apply to material in 7
documents. Accordingly, I have made edited copies of the documents (other than the
document which I have found to be exempt in full) which removes the exempt
material in accordance with section 22(1)(a)(i).
Irrelevant material
In your request dated 4 December 2022, you state that:
Any personal information of persons not employed or hired by the Federal
Government are irrelevant - s 22

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Any email address, phone number, network or street address, or the last name
of any person is irrelevant - s 22
Accordingly, I have also identified material in all 39 documents to be irrelevant or out
of scope of your request in line with the terms of your FOI request and the material
that you have agreed to exclude. The material that I have identified as irrelevant
consists of:
•  personal information of persons not employed by the Commonwealth
Government, including the names of applicants in Information Commissioner
(IC) reviews along with the OAIC reference numbers and terms of request for
those IC reviews; and
•  email addresses, phone numbers and street addresses and surnames of any
persons.
I consider that giving access to these documents without the redactions applied
‘would disclose information that would reasonably be regarded as irrelevant’ to your
request, based on your statements above where you specifical y identify particular
kinds of material to be irrelevant.
I consider ‘personal information of persons not employed or hired by the Federal
Government’ to include the names of applicants in IC reviews, as well as the OAIC
reference numbers and terms of request for those IC reviews.
Section 4 of the FOI Act provides that the definition of personal information in the
Privacy Act 1988 (Cth) also applies to the FOI Act. The term personal information is
defined in section 6 of the Privacy Act to be:
… 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;
(b)
whether the information or opinion is recorded in a material form or
not.
As the relevant individuals are reasonably identifiable from this information I have
treated it as personal information which is therefore irrelevant.
Section 22 of the FOI Act authorises an agency to prepare, and to give an applicant
access to, an edited copy of a document in specified circumstances. The specified
circumstances are set out in s 22(1) and are, relevantly to this FOI request, as follows:
•  the agency decides that to give access to a document would disclose
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information that would reasonably be regarded as irrelevant to the request
for access (s 22(1)(a)(ii));
•  the agency could prepare an edited copy which, with appropriate deletions,
would not disclose any information that would reasonably be regarded as
irrelevant to the request (s 22(1)(b)(ii));
•  it is reasonably practicable for the agency to prepare the edited copy (s
22(1)(c)); and
•  it is not apparent from the applicant’s request, or consultation with the
applicant, that the applicant would decline access to the edited copy (s
22(1)(d)).
It is possible, and reasonably practicable, for the OAIC to prepare edited copies of
these particular documents by redacting the information which would reasonably be
regarded as irrelevant to the request. Further, nothing in your FOI request suggests
that you would decline access to edited copies of the documents.
On this basis, I have edited the documents to remove the irrelevant material in
accordance with section 22(1)(a)(ii) and otherwise grant you access to the material in
scope of your request.
Proper and efficient conduct of the OAIC’s operations (Section 47E(d))
I have found material in 7 documents exempt under section 47E(d) of the FOI Act.
Paragraph 6.101 of the FOI Guidelines explains that:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is
explained in greater detail in Part 5. There must be more than merely an
assumption or allegation that damage may occur if the document were to be
released.
Additionally, at 6.103 the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following
disclosure. The particulars of the predicted effect should be identified during
the decision making process, including whether the effect could reasonably
be expected to occur. Where the conditional exemption is relied upon, the
relevant particulars and reasons should form part of the decision maker’s
statement of reasons, if they can be included without disclosing exempt
material (s 26, see Part 3).
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The material that I have decided is subject to conditional exemption under section
47E(d) comprises of:
-  Information concerning open IC reviews;
-  Summaries of assessments of Consumer Data Right (CDR) entities conducted
by the OAIC; and
-  Policy discussions regarding the Consumer Data Right.
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the
operations of agencies, I have taken into consideration the functions and activities of
the relevant agencies.
Information regarding current Information Commissioner review matters
Two documents contain information regarding IC reviews that are currently open
and are still being determined by the OAIC. The release of this information at this
time would, or could reasonably be expected to, adversely impact on both the ability
of the OAIC to manage these particular matters and future matters if parties cannot
be confident that their information will be kept confidential while their reviews are
still being investigated.
The AAT has recognised in Telstra Australian Limited and Australian Competition and
Consumer Commission [2000] AATA 71 (7 February 2000) [24] that the conduct of an
agency’s regulatory functions can be adversely affected in a substantial way when
there is a lack of confidence in the confidentiality of the investigation process.
Further, disclosing information concerning open IC reviews would be contrary to the
OAIC’s FOI Regulatory Action Policy, which at point 73 provides that ‘The Information
Commissioner wil  general y not comment publicly about ongoing IC review
applications or the exercise of investigative powers.’
In my view, the OAIC’s ability to carry out its regulatory functions in conducting IC
reviews would be substantially and adversely affected if the information concerning
open IC reviews is released, as this would undermine both the confidence of parties
in the process, and the OAIC’s own policy.
Information regarding CDR assessments
Two documents contain information about assessments carried out by the OAIC
which has not been published. This material names various businesses which are
participants (targets) in the CDR and findings about their performance in
assessments conducted by the OAIC.  Some of this information is in draft form and
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was later updated fol owing further consultation with the targets involved. These
findings are also presented in the documents in a way which compares different
businesses, lists the number of findings against them and which omits context
regarding why the targets performed differently, which is vastly different to the final
summaries that the OAIC publishes in relation to these assessments. Similar to the
information concerning IC reviews discussed above, the release of this information at
this time would be likely to undermine the confidence of targets in the
confidentiality of the CDR process. It is likely that both these current targets, and any
future participants in the CDR, would be less willing to cooperate and provide
information to the OAIC for assessments if they cannot be confident that only the
final findings will be published.

Therefore, I consider that the release of this information at this time would, or could
reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the OAIC’s operations in administering the CDR.
Discussion of CDR policy
I have also considered policy material in 3 documents to be conditional y exempt
under section 47E(d). This material is contained in the internal OAIC emails and
emails from the Treasury to the OAIC and the ACCC and consists of summaries of
discussions with Ministers and updates on policy proposals and the status of
particular projects.

In considering this material, I have had regard to the functions of all 3 agencies in
administering the CDR scheme. Al 3 agencies collaborate in managing this scheme,
which involves the sharing of confidential information and carrying out discussions
to inform and plan policy and procedures in managing the scheme. In particular, the
sharing of this information is essential to develop Ministerial advice as a precursor to
submissions to Cabinet in relation to various proposals concerning the CDR. Release
of this material may inhibit the full canvassing of issues in the development of
Cabinet and policy material in the future, constituting a substantial adverse effect on
the proper and efficient conduct of their operations.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test. My consideration of the public interest test is
discussed below.
The public interest test (s 11A(5))

As provided above, I have considered that material within the documents is subject
to conditional exemption under section 47E(d) of the FOI Act.
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An agency cannot refuse access to conditional y 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 documents 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 general y by
informing the community of the Government’s operations and enhancing the
scrutiny of government decision making. Other factors are not relevant in this
instance.
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 fol owing relevant
public interest factors against disclosure in this case are that disclosure could
reasonably be expected to prejudice:
•  the management functions of the OAIC, Treasury and ACCC;
•  the OAIC’s ability to obtain confidential information; and
•  the OAIC’s ability to obtain similar information in the future.
I have given particular weight to the effect that disclosure of all of the exempt
material would have on the OAIC’s ability obtain information in the future. In
carrying out its functions in undertaking IC reviews, and in administering the CDR, it
is crucial that the OAIC be able to obtain information, including confidential
information, from various parties, such as parties to IC reviews, CDR participants and
other agencies. The parties that the OAIC relies upon to provide information do so on
the assumption that their information will only be shared or published in the ways
the OAIC has advised them of. I consider that publishing the exempt material would
undermine these processes and prejudice the ability of the OAIC to obtain
information in future.
This in turn would prejudice the functions of the OAIC in managing IC reviews, and
the functions of the OAIC, Treasury and ACCC in jointly managing the CDR regime.
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Whilst I acknowledge the factors that support disclosure of this information,
particularly that disclosure would promote the objects of the FOI Act, I am satisfied
that giving access to the conditional y exempt material at this time would, on
balance, be contrary to the public interest.
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 conditional y exempt under section
47E(d) of the FOI Act. As stated above, the information that I have found to be
conditional y exempt has been deleted (as noted in the schedule and the
documents) and the remainder of the documents have been provided to you.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely

Molly Cooke
Lawyer
2 February 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.
The documents I have decided to release to you do not contain business or personal
information that would be unreasonable to publish. As a result, the documents wil
not be published on our disclosure log.

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