OFFICIAL
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2023/034
To: FOI Applicant
Email: mailto:xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear FOI Applicant
I refer to your email of 2 February 2023 to the Department of the Prime Minister and Cabinet (the
Department) requesting access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
Scope of request
You set out your request in the fol owing terms:
I am seeking al correspondence between the Department of the Prime Minister and Cabinet, the
Prime Minister or his office and the Chief Minister of the Northern Territory, the Chief Minister's
office or the Department of the Chief Minister and Cabinet which references 'Alice Springs',
'Marion Scrymgour' or 'Dorel e Anderson'.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Material taken into account
In reaching my decision I referred to the fol owing:
• the terms of your request
• the provisions of the FOI Act
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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• the FOI Guidelines issued by the Information Commissioner1 (the Guidelines)
Decision
The Department identified four documents falling in scope of your request. These documents are set
out in the Schedule of Documents at Attachment A.
I have decided to grant access in part, with exempt material redacted under section 47B(b) and 47C(1)
of the FOI Act. Material that is not relevant to the scope of your request has been removed under
section 22(1)(a)(i ) of the FOI Act.
Reason for decision
My findings of fact and reasons for exemptions are set out below.
Section 47B – Public interest conditional exemption - Commonwealth-State relations
Section 47B(a) provides that a documents is conditional y exempt if disclosure under the FOI Act
would, or could reasonably be expected to, divulge information or matter communicated in
confidence by a State to the Commonwealth.
Section 47B(b) provides that a document is conditional y exempt if disclosure under the FOI Act would
divulge information communicated in confidence by or on behalf of the Government or an authority
of a State, to the Government or an authority of the Commonwealth, or to a person receiving the
communication on behalf of the Commonwealth or an authority of the Commonwealth.
Section 4(1) of the FOI Act provides that State includes the Australian Capital Territory and the
Northern Territory.
These exemptions have been applied to documents 1 and 3 which are confidential communication
between officers of the NT Government and the Commonwealth on matters under consideration and
subject to further discussion between governments.
Section 47C – Public interest conditional exemption - deliberative processes
Section 47C(1) of the FOI Act provides that a document is conditional y 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 (c) the Government of the Commonwealth:
The FOI Guidelines note at paragraphs 6.58-6.63 that ‘deliberative processes’ general y refers to the
process of weighing up or evaluating competing arguments or considerations or to thinking
1 s 93A of the FOI Act
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processes, and ‘deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’
and ‘consultation and deliberation’ that is recorded or reflected in a document.
While section 47C(2) of the FOI Act provides that deliberative matter does not include purely factual
material, paragraph 6.73, the FOI Guidelines state that ‘purely factual material’ does not extend to
factual material that is an integral part of the deliberative content and purpose of a document, or is
embedded in or intertwined with the deliberative content such that it is impractical to excise it.
Findings on application of section 47C of the FOI Act
This exemption has been applied to document 3 that contains draft document provided to the
Commonwealth for consideration and is subject to further consultation between the governments. I
am satisfied that it contains information that meets the definition of ‘deliberative matter’.
I am also satisfied that to the extent to which the document contains factual material, the factual
material is an integral part of the deliberative content and purpose of the documents, or is embedded
in, or intertwined with, the deliberative content, such that it is impractical to excise it. I therefore find
that the deliberative matter contained within the documents does not consist of ‘purely factual
material’.
In addition, I am satisfied that none of the exceptions in subsection 47C(3) apply to the deliberative
matter2.
Public Interest Test
Section 11A(5) of the FOI Act provides that a conditional y exempt document must nevertheless be
released to an FOI applicant unless its disclosure would, on balance, be contrary to the public interest.
Having found that the requested documents contain material that is conditional y exempt under
section 47B and 47C of the FOI Act, I am now required to apply the public interest test in section 11B
of the FOI Act to that material.
Irrelevant factors
Section 11B(4) of the FOI Act sets out four factors that FOI decision makers must not take into account
when deciding whether access to a document would be contrary to the public interest:
• access to the document could result in embarrassment to the Commonwealth Government, or
cause a loss of confidence in the Commonwealth Government;
• access to the document could result in any person misinterpreting or misunderstanding the
document;
• 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; or
2 See Para 6.75 of the Guidelines at www.oaic.gov.au/freedom-of-information/foi-guidelines/part-6-conditional-
exemptions#documents-subject-to-deliberative-processes-s-47c
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• access to the document could result in confusion or unnecessary debate.
I have not taken any of the above factors into account in making my decision.
Factors favouring disclosure
Section 11B(3) of the FOI Act sets out four public interest factors favouring access which must be
considered if relevant. Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
• promote the objects of this Act (including al the matters set out in sections 3 and 3A)
• inform debate on a matter of public importance
• promote effective oversight of public expenditure, and
• al ow a person to access his or her own personal information.
Having considered these factors and the exempt material in the requested documents, I am satisfied
that while disclosure may promote the objects of the FOI Act and inform debate on a matter of public
importance, there are more significant factors against disclosure as set out below
Factors against disclosure
The FOI Act does not provide a prescribed set of factors weighing against disclosure for decision
makers to consider. However, the FOI Act requires decision makers to have regard to the FOI
Guidelines which contain, at paragraph 6.22, a non-exhaustive list of public interest factors that may,
depending on the circumstances, operate against disclosure in this instance.
In this instance I consider disclosure could:
• reasonably be expected to inhibit departmental officers in the recording, or exchanging of
future opinions, advice and recommendations, which feeds into advice to the Prime Minister
and other stakeholders
• divulge information or matter created for the purpose of briefing Federal Cabinet and
communicated in confidence on behalf of the Northern Territory Government to the
Commonwealth, or to a person receiving the communication on behalf of the Commonwealth,
and constitute a breach of confidence between the governments
• substantial y impact a Commonwealth-State program by interrupting or creating difficulty in
discussions underway regarding the development of joint or paral el policy
• impair or prejudice the flow of information between states and Commonwealth by adversely
affect the continued level of trust or cooperation in existing inter-office relationships.
After careful consideration of all relevant factors I am satisfied that these factors against release
outweigh the factors for disclosure, and that the public interest would not be served in this instance
by the release of deliberative material that would reveal confidential discussions between
governments on matters that have not yet concluded.
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I have, therefore, decided to refuse access to the documents under sections 47B and 47C of the FOI
Act as set out in the attached document schedule.
Deletion of irrelevant material
Section 22 of the FOI Act provides that if giving access to a document would disclose information that
would reasonably be regarded as irrelevant to the request, it is possible for the Department to
prepare an edited copy of the document, modified by deletions, ensuring that the edited copy would
not disclose any information that would be reasonably regarded as irrelevant to the request.
On 3 February 2023, the Department advised you of its policy to exclude any person’s signature, the
names and contact details of officers not in the Senior Executive Service (SES), and the mobile or
direct numbers of SES officers where these details are contained in documents that fal within the
scope of an FOI request. This category of information is identified as irrelevant and documents can be
modified by the Department to delete the irrelevant material.
Accordingly, I am satisfied that the requested documents contain some irrelevant information under
section 22(1)(a)(i ) of the FOI Act. In addition, I am satisfied that it is possible to prepare a copy of
these documents with exempt and irrelevant material deleted, and that you would wish to be
provided with such a copy.
Review rights
If you disagree with my decision, you may apply for internal review or Information Commissioner
review of the decision.
Internal review
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 after the date of this letter,
please attach reasons why you believe review of the decision is necessary. Applications for review
should be sent to xxx@xxx.xxx.xx.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days after the date of this letter. More information about Information Commissioner
review3 is available on the Office of the Australian Information Commissioner’s website.
3 www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-commissioner-review/
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FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response,
you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. More information about complaints4 is available
on the Office of the Australian Information Commissioner’s website.
If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx.
Yours sincerely
Richard Aitken
Acting Assistant Secretary
First Nations Policy - Social & Economic
Social Policy Division
Department of the Prime Minister and Cabinet
6 April 2023
4 www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/
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