If not delivered return to PO Box 7820 Canberra BC ACT 2610
6 February 2023
Our reference: LEX 71197
Mr Rex Banner
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Banner
Decision on your Freedom of Information Request
I refer to your request, dated 22 December 2022 and received by Services Australia (the
Agency) on 22 December 2022 for access under the
Freedom of Information Act 1982 (the
FOI Act) to the following documents:
'the Privacy Impact Assessment (PIA) #48538 for the "COVID-19 Readiness Project –
State and Territory Check-In Apps" under the Freedom of Information Act 1982 (Cth)'.
My decision
The Agency holds one document (totalling 48 pages) that relates to your request.
I have decided to:
refuse access to one document (document 1).
I have decided that the document requested is exempt under the FOI Act, pursuant to the
following sections of the FOI Act:
the material contained within the document is subject to legal professional privilege
(section 42) and
deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C).
On 5 January 2023 the Agency acknowledged your request and advised you we would not
include personal details about our staff (such as their names).
Please see the schedule at
Attachment A to this letter for a detailed list of the documents
and the reasons for my decision, including the relevant sections of the FOI Act.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the Agency, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
a review of the decision. See
Attachment B for more information about how to request a
review.
PAGE 1 OF 9
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
TY
Authorised FOI Decision Maker
Freedom of Information Team
Information Access Branch | Legal Services Division
Services Australia
PAGE 2 OF 9
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE
BANNER, Rex (Right to Know) - LEX 71197
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1.
1 - 48
28
Supplementary Privacy
Exempt in full
s42
Material subject to legal professional privilege
September
Impact Assessment
s47C
Deliberative material
2022
COVID-19 Readiness
Project:
State and territory
check-in apps
PAGE 3 OF 9
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
On 22 December 2022, you requested:
'the Privacy Impact Assessment (PIA) #48538 for the "COVID-19 Readiness Project –
State and Territory Check-In Apps" under the Freedom of Information Act 1982 (Cth)'.
You agreed to an extension of time for the Agency to process your request on 22 December
2022 and the Agency acknowledged your request on 5 January 2023.
What I took into account
In reaching my decision I took into account:
your original request dated 22 December 2022
correspondence with you
the documents that fall within the scope of your request;
whether the release of material is in the public interest
consultations with Agency officers about:
o the nature of the documents;
o the Agency's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
Guidelines); and
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that the document that you requested is exempt in full under the FOI Act. My
findings of fact and reasons for decision is discussed below.
Section 42 of the FOI Act - legal professional privilege
This section of the FOI Act allows the Agency to redact documents or parts of documents
subject to legal professional privilege (LPP). I have applied this exemption to the document in
full.
Section 42 of the FOI Act provides:
(1) A document is an exempt document if it is of such a nature that it would be privileged
from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the document
in legal proceedings waives that claim.
PAGE 4 OF 9
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b) the information is operational information of an Agency.
Paragraphs 5.129 of the Guidelines provides the following guidance in relation to the
application of section 42:
At common law, determining whether a communication is privileged requires a
consideration of:
whether there is a legal adviser-client relationship
whether the communication was for the purpose of giving or receiving legal
advice, or use in connection with actual or anticipated litigation
whether the advice given is independent
whether the advice given is confidential.
(internal references omitted)
The documents contain correspondence between the Agency and its external lawyers for the
purposes of obtaining professional legal advice on the privacy issues pertaining to the
COVID-19 digital certificate.
I am satisfied the document is advice provided by professional legal advisers acting with the
required level of independence to the client, and there was a clear adviser-client relationship
Further, I am satisfied that privilege in these communications has not been waived as the
documents have not been distributed further than is reasonably necessary for internal
operational purposes. I am also satisfied that the substance of the legal advice contained
within the documents has not been used in any way which is inconsistent with the
maintenance of the confidentiality of the advice.
I am of the view that the Agency’s ability to obtain legal advice on issues (such as COVID-19
projects) would be substantially prejudiced if these documents were to be made publicly
available through FOI processes. In my view, real harm is likely to result from release of the
documents as doing so would waive privilege and disclose the particular legal provider’s
approach to the interpretation, analysis and application of legislation administered by the
Agency. Consequently, the Agency’s ability to obtain comprehensive legal advice in the
future would be substantially prejudiced if external law firms become aware that the Agency
is expressly waiving privilege in documents by making its legal advice publicly available via
FOI processes.
For the reasons set out above, I am satisfied the documents are exempt under section 42 of
the FOI Act.
Section 47C - deliberative matter
PAGE 5 OF 9
This section of the FOI Act allows the Agency to redact documents or parts of documents
relating to opinion, advice, recommendation obtained, or deliberation for the purposes of the
deliberative processes involved in the functions of the Agency. I have applied this exemption
to the document in full.
Section 47C provides:
(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.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
(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.
I am satisfied the document in issue contains deliberative matter, being advice and
recommendations, which have been prepared by the Agency’s legal services provider for the
purpose of undertaking the COVID-19 related PIA. The information identifies privacy and
secrecy compliance risks for the Agency and includes recommendations for managing or
eliminating identified risks and maximising opportunities for enhancing privacy protection. As
such, I am satisfied the documents are not operational information or purely factual
information, and are otherwise not of a kind specifically excluded by the FOI Act.
Accordingly, I find that the documents are also conditionally exempt, in full, under section
47C(1) of the FOI Act.
Public interest considerations
Access to conditionally exempt material must be given unless I am satisfied it would not be in
the public interest to do so.
PAGE 6 OF 9
I consider the disclosure of the material would generally promote the objects of the FOI Act,
which is in the public interest. However, I also consider disclosure could reasonably be
expected to prejudice the Agency’s ability to obtain comprehensive legal advice in the future
and would destroy or diminish the provider’s PIA methodology and approach, ultimately
impede the full and frank disclosure between a lawyer and client to the benefit of the effective
administration of justice.
As such, I find the public interest factor in favour of disclosing the material is outweighed by
the public interest factors against disclosure.
Conclusion
In summary, I am satisfied that parts of the document, as set out in the Schedule, is exempt
under s42 and conditionally exempt under section 47C of the FOI Act. Furthermore, I have
decided that on balance it would be contrary to the public interest to release this information.
Accordingly, I have decided not to release the document to you.
Summary of my decision
In conclusion, I have decided to refuse your request for access to the document.
PAGE 7 OF 9
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (
FOI Act)
gives you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by:
1. an Internal Review Officer in Services Australia (the
Agency); and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the Agency delegate who made
the original decision will carry out the review. The Internal Review Officer will consider all
aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the Agency within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original
FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
PAGE 8 OF 9
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available
at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Services
Australia decision on your FOI request
Include your contact details
Set out your reasons for objecting to the Agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by
an Agency in the exercise of powers or the performance of functions under the FOI Act,
There is no fee for making a complaint. A complaint to the Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
Agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 9 OF 9
