LEX 55101
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reasons for decision of Ramona (Position Number 62336362), Assistant Director,
Information Access Unit, Client Access and Rehabilitation Branch, Department of Veterans’
Affairs
Applicant:
Mr Arthur Jordan
Decision date:
24 February 2023
FOI reference number:
LEX 55101
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Jordan,
Freedom of Information Request: LEX 55101
Decision
1. The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified one (1) document bundle relevant to your request.
2. I have made a decision to grant access in part to one (1) document bundle.
3. The document bundle that I have chosen to grant access in part is set out in
Schedule 1,
together with applicable exemption provisions. Where I have decided to grant access in part,
I have provided access to an edited copy of the document, modified by deletions in
accordance with section 22(2) of the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Authority to make decision
4. I, Ramona (Position Number 62336362), Assistant Director, Information Access Unit, Client
Access and Rehabilitation Branch, am an officer authorised by the Secretary of the
Department to make decisions about access to documents in the possession of the
Department in accordance with section 23(1) of the FOI Act.
1
Summary
5. On 11 December 2022, you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘…I refer you to evidence (on oath) given to the Royal Commission into Defence and
Veterans Suicide by Ian Lindgren of the APPVA and I quote:- "She (The Secretary of
DVA) placed me on a committee known as the ESORT Multi-Act Working Group,
which -- I have actually never met anyone who has heard of it before, but it is
actually an interesting venue to attend".
I seek copies of any and all documents (including drafts) that relate to the history of
the ESORT Multi-Act Working Group, its inception, members invited to attend and
why, who they represent, their roles and responsibilities and all minutes taken and
reports prepared for the benefit of any Ministers of DVA.
To be clear, I do NOT consent to business email addresses, names (in full) or
business telephone/mobile numbers being redacted. Personal or private details MAY
be redacted…’
6. On 13 December 2022, the Department acknowledged your request via email.
7. On 24 January 2023, you were advised that the Department was required to undertake a
consultation with third parties in accordance with sections 27 and 27A of the FOI Act. I have
taken the third parties’ views into consideration in making my decision.
8. As extensions of time were applied to process your request in accordance with sections
15(6) and 15AA of the FOI Act, a decision on your request is due by 24 February 2023.
9. I have decided not to impose a charge in relation to this request, in accordance with
Regulation 8 of the
Freedom of Information (Charges) Regulations 2019.
Material taken into account
10. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of
fact, the material on which those findings were based and the reasons for my decision to
grant partial access to the documents fol ows.
11. I have taken the following material into account in making my decision:
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the terms of your request on 11 December 2022;
the types of information and documents that are in the Department’s possession;
the content of the documents that fal within the scope of your request;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to
my decision:
- Section 11B Public interest exemption – factors
- Section 15 Request for Access
- Section 22 Access to edited copies with exempt or irrelevant material deleted
- Section 47C Public interest conditional exemptions--deliberative processes
- Section 47E Public interest conditional exemptions--certain operations of agencies
- Section 47F Public interest conditional exemptions--personal privacy
- Section 47G Public interest conditional exemptions--business
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines); and
the views of third parties consulted by the Department under sections 27 and 27A of
the FOI Act.
12. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
Reasons for decision
13. I have decided to
grant access in part to the documents within the scope of your request,
subject to the fol owing exemptions in accordance with the FOI Act.
Public interest conditional exemptions--deliberative processes (section 47C)
14. Section 47C of the FOI Act provides that a document is conditional y exempt if its disclosure
would disclose matter (deliberative matter) in the nature of, or relating to, opinions, advice
or recommendations obtained, prepared or recorded; or consultation or deliberation that
has taken place in the course of, or for the purposes of, the deliberative processes involved
in the functions of an agency, a Minister or the Government of the Commonwealth.
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15. It is evident that parts of the documents in scope of your request contain ‘deliberative
matter’ in the form of advice, opinions and recommendations on a range of topics brought
before the ESORT Multi-Act Claims Working Group for consideration and discussion. Some of
this information is draft documents that were/are still under deliberation.
16. I consider that disclosure of this information prematurely could inhibit or curtail the ability of
the Department to receive and provide candid and comprehensive advice, opinions and
recommendations, thereby diminishing the quality and usefulness of the advice provided,
and having a detrimental effect on the Department’s consideration of the matters raised.
17. Section 47C does not include a requirement to identify any specific harm that wil or could
result from disclosure of deliberative material. However, for the purposes of determining the
public interest factors for and against disclosure (discussed further below), it is useful to
acknowledge any such identifiable harm. In this case, I find that harm would likely result
from disclosure as the release of information not yet otherwise publicly available would
likely undermine the decision-making process of government.
18. The term ‘deliberative matter’ in subsection 47C(1) excludes operation information or purely
factual information (subsection 47C(2)). While the relevant documents may contain factual
information that is not entirely deliberative in nature, the information is either an integral
part of the deliberative content or it is so intertwined with it that it is impractical to excise it.
Any such factual information falls within the exemption under section 47C.
19. I have decided that the parts of documents which are listed as exempt in accordance with
this provision in
Schedule 1, meet the criteria for conditional exemption under section 47C.
Where a document is assessed as conditional y exempt, access must be given subject to the
public interest test in accordance with section 11A(5) of the FOI Act (discussed further
below).
Public interest conditional exemptions--certain operations of agencies (sections 47E(c) and
47E(d))
20. The documents within the scope of your request contain the names and contact information
of staff of the Department. I have decided that subsections 47E(c) and 47E(d) apply to this
material, as identified in
Schedule 1.
21. Section 47E(c) conditionally exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the management or
assessment of personnel by the Commonwealth or an agency. Management of personnel by
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the Department includes, among other things, human resources policies and activities,
recruitment, and work health and safety.
22. Section 47E(d) conditionally exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
23. The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information generally
provided by individual staff members to clients. For example, staff are generally required to
identify themselves in correspondence with clients by a given name and position number.
This is consistent with the approach taken by other Commonwealth agencies with similar
functions, including provision of support services and administration of statutory benefits
schemes. Implementation of these policies provides staff at more junior levels with
confidence that they will not be inappropriately named or contacted in relation to actions
taken in the course of their routine work for the Department.
24. Disclosure of identifying information about staff members contained within the documents
would be inconsistent with these Departmental policies. Knowledge that identifying
information about them may be disclosed in documents accessed under the FOI Act would
be likely to undermine the confidence of staff in Departmental policies intended to support
their work health and safety. Staff concern about inappropriate contact and the potential for
harassment by clients is based on known instances of such things occurring. For example,
public identification of individual staff members in an online client forum.
25. An adverse effect on the Department’s ability to manage staff could reasonably be expected
to result from widespread staff concern about disclosure of identifying information about
staff members. Staff members may experience concern even when not based on personal
experience of harassment.
26. I also note that the Department provides a wide range of services to its clients. To facilitate
efficient conduct of its operations, the Department has established channels for
communication on specific topics and in relation to specific services. These channels, such as
email inboxes and telephone support lines, enable services to be delivered efficiently by
directing clients to the most appropriate point of contact. In addition, the Department is
able to manage staffing efficiently by providing staff with access to communication points
attached to a role rather than to an individual.
27. Disclosure of identifying information about staff members in these documents would
disclose contact details for individual staff members, which is not generally available. Once
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contact details for individual staff members are disclosed they are likely to become publically
known through private correspondence. Making it possible for clients to address
correspondence to individual staff members or to seek to contact individuals directly is likely
to undermine Departmental arrangements to channel communications based on role rather
than individual. Reduced efficiency in communication and delivery of services could
reasonably be expected to result.
28. The document bundle also contains some information relating to internal processes or
procedures that are not publicly known and relate to, or affect, the operations of the
Department. I find that the Department’s operations would be affected if this information
were disclosed. It is essential that staff can provide full and thorough consideration to
opinions, advice and outcomes when engaging in operational functionalities. The ability and
wil ingness of staff to do so would be adversely affected if certain information could be
disclosed to the public for comment. Release of the exempt information may also impact on
the ability of the Department to conduct its operations if parties cannot be confident that
certain internal information wil be kept confidential.
29. Accordingly, for the reasons outlined above I consider that certain material, as identified in
Schedule 1, meets the criteria for conditional exemption under subsections 47E(c) and
47E(d) of the FOI Act. Where a document is assessed as conditionally exempt, access must
be given subject to the public interest test in accordance with section 11A(5) of the FOI Act
(discussed further below).
Public interest conditional exemptions--personal privacy (section 47F)
30. Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person
(including a deceased person).
31. Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Privacy Act). Personal information is defined in section 6 of the Privacy Act
as:
. 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.
32. The elements of ‘personal information’ are:
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(a)
it relates only to a natural person (not, for example, a company);
(b)
it says something about the individual;
(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database;
(d)
the individual’s identity is known or is reasonably ascertainable using the
information in the document.
33. If information is personal information, it will be conditionally exempt if disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:
(a)
the extent to which the information is wel known;
(b)
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;
(c)
the availability of the information from publicly accessible sources; and
(d)
any other matter I consider relevant.
34. The document bundle outlined in
Schedule 1 contains the names and contact information of
staff of the Department. Contact details of an individual staff member, such as their email
address, phone number and signature is personal information about that person. The
documents also contain similar personal information of several third parties.
35. The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information generally
provided by individual staff members to clients. As outlined above, staff are generally
required to identify themselves in correspondence with clients by a given name and position
number. This reduces the likelihood that individuals are reasonably identifiable in a different
context. For example, it reduces the likelihood that a private social media profile can be
linked with an individual who is a staff member of the Department.
36. I consider that disclosure of personal information of individual staff members in the
document would be unreasonable because it would be inconsistent with Departmental
policies and procedures designed to support a safe and efficient working environment.
Additional y, it would be unreasonable because it would be contrary to the expectations of
those individual staff members, who may rely on those Departmental policies and
procedures for assurance of their personal privacy.
37. As mentioned, parts of the document bundle also contain the names and contact
information of third parties, including members of the Working Group. Following
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consultation with the third parties, I find that disclosure of their personal information would
be unreasonable in the circumstance as the information relates specifically to the
individuals, and is generally not well known or publicly available. Further, no public purpose
or interest in increasing transparency of government would be achieved through the release
of the personal information.
38. Accordingly, I have decided that the parts of documents which are listed as exempt in
accordance with this provision in
Schedule 1, meet the criteria for conditional exemption.
Where a document is assessed as conditionally exempt, access must be given subject to the
public interest test in accordance with section 11A(5) of the FOI Act, discussed below.
Public interest conditional exemptions—business (section 47G)
39. Section 47G(1)(a) of the FOI Act provides that a document is conditionally exempt if its
disclosure under this Act would disclose information concerning a person in respect of his or
her business or professional affairs or concerning the business, commercial or financial
affairs of an organisation or undertaking, in a case in which the disclosure of the
information:
(a) would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or that
organisation or undertaking in respect of its lawful business, commercial or
financial affairs.
40. The document bundle contains some business information relating to third parties. I find
that disclosure of this information, which is not otherwise publicly known in relation to the
Working Group, may affect, if not deter, businesses in future dealings with the Department
by preventing them from confidently providing information knowing it could be made
publicly available through freedom of information processes. This would result in a loss of
trust in the Department and likely prejudice the future supply of such information to, and
interactions with, the Department.
41. Accordingly, I have decided that parts of the document bundle listed as exempt in
accordance with this provision in
the document bundles, meet the criteria for conditional
exemption. Where a document is assessed as conditionally exempt, access must be given
subject to the public interest test in accordance with section 11A(5), discussed below.
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Application of the public interest test – sections 47C, 47E(c), (d), 47G and 47F
42. Section 11A(5) of the FOI Act provides that an agency must give the person access to the
document if it is conditional y exempt at a particular time unless (in the circumstances)
access to the document would, on balance, be contrary to the public interest.
43. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the fol owing factors which favours disclosure:
(a)
disclosure would promote the objects of the FOI Act by providing access to
government held information; and
(b)
disclosure would inform debate on matters of public importance.
44. I also considered the fol owing factors which do not favour disclosure:
(a)
disclosure could be expected to adversely affect the management of staff of the
Department, resulting in a likely reduction in the capability of the Department to
efficiently carry out its functions;
(b)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with its functions;
(c)
disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy, both in relation to the third-party individuals and staff
of the Department;
(d)
disclosure of the deliberative material would, or could reasonably be expected to,
impede the Department’s ability to give and receive advice, opinion and
recommendations;
(e)
disclosure of the deliberative material could reasonably be expected to prejudice
the Department’s ability to obtain confidential information;
(f)
disclosure of the deliberative material could reasonably be expected to prejudice
the Department’s ability to obtain similar information in the future; and
(g)
disclosure of the deliberative material could be detrimental to existing and future
business relationships.
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45. I have placed greater weight on the factors against disclosure. I consider that disruption of
established channels for communication and delivery of services would be likely to follow
disclosure of contact information about individual staff members. I consider that impairment
of the Department’s ability to efficiently deliver services to veterans and their families could
reasonably be expected as a result. Further, I consider that there is little public interest in
the disclosure of information identifying individuals who are, or have been, staff members in
roles more junior than the Senior Executive Service. Disclosure of that information could
reasonably be expected to result in interference with the privacy of those individuals by
enabling them to be identified in their private lives and associated with actions for which the
Department is responsible.
46. I also consider that the disclosure of the deliberative matter contained in parts of document
bundle would have an adverse effect on enabling the Department and its working groups to
communicate freely and give advice, opinions and recommendations, and have the
opportunity to deliberate on such information.
47. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am therefore satisfied that the public
interest is to withhold the exempt material.
48. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
49. The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.
50. As explained above, some of the documents subject to your request contain exempt and/or
irrelevant information that is out of scope of your request.
51. On this basis, I have prepared the documents for release by removing the exempt and
irrelevant material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as wel as at
Schedule 1.
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Access to documents
52. The document released to you in accordance with the FOI Act is enclosed.
Information Publication Scheme
53. The Information Publication Scheme requires the Department to publish information
released in response to individual requests made under the FOI Act, except in specified
circumstances.
54. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log which can be accessed at
http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
55. If you are dissatisfied with my decision, you may apply for internal review or request the
Office of the Australian Information Commissioner (
OAIC) review my decision. We
encourage you to seek internal review as a first step to resolve any concerns you may have.
Internal review
56. Under section 54 of the FOI Act, you may apply in writing to the Department for an Internal
Review of my decision. The Internal Review application must be made within 30 days of the
date of this letter. Where possible please attach reasons why you believe review of the
decision is necessary. The internal review will be carried out by another officer within 30
days.
57. You can make your application for Internal Review in one of the following ways:
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
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OAIC review
58. Under section 54L of the FOI Act, you may apply to the OAIC to review my decision. An
application for review by OAIC must be made in writing within 60 days of the date of this
letter, and be lodged in one of the fol owing ways:
Online:
www.oaic.gov.au
Post:
Director of FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
59. More information about your review rights under the FOI Act is available in Fact Sheet 12
published by the OAIC:
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/information-commissioner-review/
Contact us
60. If you wish to discuss this decision, please do not hesitate to contact the Information Access
Unit using the following details:
Online:
https://www.dva.gov.au/about-us/overview/reporting/freedom-
information/access-information
Post:
Information Access Unit
Department of Veterans’ Affairs
GPO Box 9998, Brisbane QLD 4001
Phone:
1800 838 372
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Yours sincerely,
Ramona (Position Number 62336362)
Assistant Director
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans’ Affairs
24 February 2023
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LEX 55101
Schedule 1
Schedule of documents
Applicant:
Mr Arthur Jordan
Decision date:
24 February 2023
FOI reference number:
LEX 55101
Document Date of
Document description
Page
Decision
Exemption provision
reference document
number
1
Various ESORT MACWG Document Bundle
1-624
Part
s 22, s 47C, s 47E, s 47G,
Access
s 47F
13
LEX 55101
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
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Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
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Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
11B Public interest exemptions — factors
Scope
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include whether access to
the document would do any of the fol owing:
(a)
promote the objects of this Act (including al 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;
(d)
allow a person to access his or her own personal information.
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(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.
Guidelines
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(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
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Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
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Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
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Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shal :
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
47C Public interest conditional exemptions—deliberative processes
General rule
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(1)
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative 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, the deliberative processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth; or
(d)
the Government of Norfolk Island.
Exceptions
(2)
Deliberative matter does not include either of the fol owing:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not,
including reports expressing the opinions of such experts on scientific or technical
matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
47E Public interest conditional exemptions—certain operations of agencies
A document is conditional y exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the fol owing:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
47F
Public interest conditional exemptions—personal privacy
General rule
(1)
A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(a)
the extent to which the information is well known;
(b)
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;
(c)
the availability of the information from publicly accessible sources;
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(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead
(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant’s physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and
(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.
(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:
(a)
a medical practitioner;
(b)
a psychiatrist;
(c)
a psychologist;
(d)
a counsellor;
(e)
a social worker.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
47G Public interest conditional exemptions—business
(1)
A document is conditional y exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional affairs or
concerning the business, commercial or financial affairs of an organisation or undertaking,
in a case in which the disclosure of the information:
(a)
would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or that
organisation or undertaking in respect of its lawful business, commercial or
financial affairs; or
(b)
could reasonably be expected to prejudice the future supply of information to the
Commonwealth, Norfolk Island or an agency for the purpose of the administration
of a law of the Commonwealth or of a Territory or the administration of matters
administered by an agency.
(2)
Subsection (1) does not apply to trade secrets or other information to which section 47
applies.
(3)
Subsection (1) does not have effect in relation to a request by a person for access to a
document:
(a)
by reason only of the inclusion in the document of information concerning that
person in respect of his or her business or professional affairs; or
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(b)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an undertaking where the person
making the request is the proprietor of the undertaking or a person acting on
behalf of the proprietor; or
(c)
by reason only of the inclusion in the document of information concerning the
business, commercial or financial affairs of an organisation where the person
making the request is the organisation or a person acting on behalf of the
organisation.
(4)
A reference in this section to an undertaking includes a reference to an undertaking that is
carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a
local government authority.
(5)
For the purposes of subsection (1), information is not taken to concern a person in respect
of the person’s professional affairs merely because it is information concerning the
person’s status as a member of a profession.
Note: Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
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Document Outline
