
PO Box 7820 Canberra BC ACT 2610
8 March 2023
Our reference: LEX 71764
Rex Banner
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Banner
Freedom of Information Request – Internal Review Decision
I refer to your correspondence received by Services Australia (the Agency) on 6 February
2023, seeking an internal review of the decision made by the Agency on 6 February 2023 in
relation to your request for access to a document under the
Freedom of Information Act 1982
(FOI Act).
Background
On 22 December 2022, you requested access under the FOI Act to the following document:
...the Privacy Impact Assessment (PIA) #48538 for the "COVID-19 Readiness Project
– State and Territory Check-In Apps"
On 6 February 2023, the Agency notified you that it had decided to refuse your request as the
requested material was exempt under the FOI Act (original decision).
On 6 February 2023, you requested an internal review of the original decision.
Summary of my internal review decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal review
decisions under section 54C of the FOI Act. Consistent with the requirements of section 54C(2)
of the FOI Act, I have made a fresh decision.
I have decided to
refuse your request as it relates to material that is fully exempt under the
FOI Act.
Please refer to
Attachment A for further information regarding the reasons for my decision.
You can ask for a review of our decision
If you disagree with any part of the decision, you can ask for a review by the Australian
Information Commissioner. See
Attachment B for more information about how to request a
review.
Further assistance
If you have any questions please email xxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
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PO Box 7820 Canberra BC ACT 2610
Yours sincerely
Damien
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Ombudsman Branch | Legal Services Division
Services Australia
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PO Box 7820 Canberra BC ACT 2610
Attachment A
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"
On 6 February 2023, the Agency notified you that it had decided to refuse your request as
the requested material was exempt under the FOI Act.
On 6 February 2023, you requested an internal review of the original decision, providing
written submissions in which you argued that:
As I understand it, my request has been refused due to the document being except
due to legal privilege.
"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. "
Is the entire document legally privileged, or just correspondence? Could you release
a masked version of the PIA without the legally protected advice?
What I took into account
In reaching my decision I took into account:
• your original request dated 22 December 2022
• your internal review request dated 6 February 2023
• other correspondence with you
• the document falling within the scope of your request
• whether the release of material would be in the public interest
• consultations with Agency officers about:
o the nature of the document, and
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 decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal review
decisions under section 54C of the FOI Act.
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PO Box 7820 Canberra BC ACT 2610
I have decided to refuse access to the document in full. My findings of fact and reasons for
deciding the exemptions apply to the document are discussed below.
Section 42 of the FOI Act – legal professional privilege
I have applied the exemption in section 42 of the FOI Act to the document in its entirety.
This section of the FOI Act allows the Agency to redact documents or parts of documents
subject to legal professional privilege (LPP).
The FOI Act does not define LPP. However, courts have held that deciding 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, and
• whether the advice given is confidential.
The document you requested is a Privacy Impact Assessment (PIA) prepared by an
independent external legal provider for the purpose of providing the Agency confidential
professional legal advice in relation to the development of the COVID-19 Immunisation
Readiness Project.
Accordingly, I am satisfied that LPP attaches to this document. I am also satisfied that LPP
has not been waived, as the document has not been distributed further than reasonably
necessary for internal operational purposes, and the substance of the legal advice contained
in the document has not been used in any way which is inconsistent with the maintenance of
the confidentiality of the advice.
Further, I am satisfied there is a possibility of real harm resulting from release of the document.
In particular, I consider that the Agency’s ability to obtain independent external legal advice on
issues would be substantially prejudiced if it were to waive privilege over this document (which
sets out the particular legal provider’s PIA methodology, together with their approach to the
interpretation, analysis and application of legislation, systems and processes administered by
the Agency) and make it publicly available through FOI processes..
For the reasons set out above, I am satisfied the document is exempt in full under section 42
of the FOI Act.
Section 47C of the FOI Act – deliberative material
I have applied the conditional exemption in section 47C of the FOI Act to the document in its
entirety.
This section of the FOI Act provides a document is conditionally exempt if it would disclose
deliberative matter. Deliberative matter is an opinion, advice or recommendation, or a
consultation or deliberation that has taken place in the course of, or for the purposes of, the
deliberative processes of an agency. Material which is operational or purely factual information
is not deliberative matter. The deliberative exemption also does not apply to reports of scientific
or technical experts, reports of a body or organisation prescribed by the regulations, or a formal
statement of reasons.
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PO Box 7820 Canberra BC ACT 2610
I am satisfied the document comprises deliberative matter, being advice and
recommendations, which have been prepared by the Agency’s legal services provider in the
course of undertaking the PIA. The document 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. I am also satisfied the document is
not operational information or purely factual information, and is otherwise not of a kind
specifically excluded by the FOI Act.
Accordingly, I find that the document is 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.
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would promote the objects of the FOI Act.
I have also considered relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to:
• destroy or diminish the commercial value of the provider’s PIA methodology approach
• impede the full and frank disclosure between a lawyer and client, which assists the
effective administration of justice, and
• prejudice the Agency’s ability to obtain comprehensive legal advice in the future.
Based on these factors, I have decided that, in this instance, the public interest in disclosing
this document is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Conclusion
I am satisfied that the document sought is conditionally exempt under section 47C of the FOI
Act. Further, I have decided that on balance it would be contrary to the public interest to release
the document.
Summary of decision
I have decided to refuse your request on the basis that:
• the document is subject to legal professional privilege and therefore exempt in full under
section 42 of the FOI Act, and
• the document comprises deliberative material, and disclosure would be contrary to the
public interest and the document is therefore exempt in full under section 47C of the FOI
Act.
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PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a ful 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 wil explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information internal review decision
If you stil believe a decision is incorrect, the FOI Act gives you the right to apply for a review
of the internal review decision. Under section 54M of the FOI Act, you can apply for a review
of an FOI decision by the Australian Information Commissioner. There are no fees for this
review.
You wil have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
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:
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PO Box 7820 Canberra BC ACT 2610
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.
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