LEX 71602 Decision Decision Letter.pdf

PO Box 7820 Canberra BC ACT 2610
20 February 2023
Our reference: LEX 71602
Rex Banner (Right to Know)
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Banner
Decision on your Freedom of Information Request
I  refer  to  your  request  dated  and  received  by  Services  Australia  (the  Agency)  on
27 January 2023 for access under the Freedom of Information Act 1982 (the FOI Act) to the
following document:
I request the Privacy Impact Assessment:
Reference Number: 38356
Title: myGov Enhancement – search tasks and payment features
My decision
The Agency holds one document (totalling 21 pages) that relates to your request.
I have decided to refuse access to this document in full on the basis that it contains:
• material subject to legal professional privilege (section 42 of the FOI Act), and
• deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C of the FOI Act).
Please see the schedule at Attachment A to this letter for a detailed list of the document 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.  See  Attachment  B  for  more
information about how to request a review.
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Further assistance
If you have any questions please email xxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx.xx
Yours sincerely
Elizabeth
FOI Practitioner
Freedom of Information Team
Freedom of Information and Ombudsman Branch | Legal Services Division
Services Australia
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PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS
BANNER, Rex (Right to Know) - LEX 71602
Doc
Pages
Date
Description
Decision
FOI
Comments
No.
Exemption
1.
1-21
3 December 2020
Privacy Impact
Exempt in full
s 42
Material subject to legal professional privilege
Assessment – Enhanced
s 47C
Deliberative material
myGov Beta 38356
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If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
I request the Privacy Impact Assessment:
Reference Number: 38356
Title: myGov Enhancement – search tasks and payment features
What I took into account
In reaching my decision I took into account:
• your request dated 27 January 2023
• other discussions and 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 you requested is exempt in its entirety under sections 42,
and 47C of the FOI Act. My findings of fact and reasons for deciding that the exemptions apply
to the document are discussed below.
Legal professional privilege
I have applied the exemption in section 42 of the FOI Act to Document 1 in its entirety.
This section of the FOI Act allows the Agency to exempt a document from disclosure if it is
subject to legal professional privilege (LPP).
The FOI Act does not define LPP. 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
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• whether the advice given is independent, and
• whether the advice given is confidential.
The document is a Privacy Impact Assessment prepared by an external legal provider for the
purpose of providing the Agency professional legal advice on specific matters. I am satisfied
that privilege in this document has not been waived as the document has 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 document has not been
used in any way which is inconsistent with the maintenance of the confidentiality of the
advice.
Further, I am satisfied the Agency’s ability to obtain legal advice on issues would be
substantially prejudiced if this document were to be made publicly available through FOI
processes. In my view, real harm is likely to result from release of the document as doing so
would waive privilege and disclose the particular legal provider’s approach to the
interpretation, analysis and application of legislation, systems and processes 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
Deliberative matter
Section 47C 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.
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 also conditionally exempt, in full, under section
47C(1) of the FOI Act.
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 commercial value of the provider’s PIA methodology and
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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.
Summary of my decision
In conclusion, I have decided the document is exempt, in full, under sections 42, and 47C of
the FOI Act, and disclosure of conditionally exempt material would be contrary to the public
interest for the purposes of section 11A(5) 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 full explanation of a Freedom of Information (FOI) 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 FOI 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.
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, and
• sent to the address at the top of the first page of this letter.
Note:  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:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
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GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note: 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.
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