LEX 55847
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Natalie (Position Number 62211022),
Senior Information Access Officer, Information Access Unit,
Client Access and Rehabilitation Branch, Department of Veterans' Affairs
Applicant:
Mr Rod Thompson
Decision date:
7 March 2023
FOI reference number:
LEX 55847
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Thompson,
Freedom of Information Request: LEX 55847
Decision
1.
The Department of Veterans' Affairs (
Department) has undertaken a reasonable search of its
records and has identified two (2) document bundles relevant to your request.
2.
I have made a decision to refuse access to the documents.
3.
The documents that I have chosen to refuse access to are 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 documents, modified by deletions in accordance
with section 22(2) of the
Freedom of Information Act 1982 (Cth) (
FOI Act).
4.
Please note that some of the information that you are seeking from the Department is
publicly available at the following websites –
www.budget.gov.au – 2021-22 budget paper (PDF) please refer to page 77
DVA Website - https://www.dva.gov.au/about-
us/overview/reporting/budgets/budget-2021-22
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Authority to make decision
5.
I, Natalie (Position Number 62211022), Senior Information Access Officer, Information
Access Unit, Client Access 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.
Summary
6.
On 5 February 2023 you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘…
Under FOI I request a detailed and factual breakdown of the expenditure of 28.9
million dollars provided to the DVA last year by government to "Respond to
information access requests from the Royal Commission and Commissioner into
Defence and Veteran Suicide". This should include all monies provided to external
contracted entities including but not limited to, "Sparke Helmore". Further to this
request can the DVA provide up to date figures of how many FOI requests have been
received, what percentage of these requests have been approved and the requested
information provided to the applicants, what are the time frames (TTP) that these
requests are processed and finalised…’
7.
On 8 February 2023, the Department acknowledged your request via email.
8.
As no extensions of time have been applied to process your request, a decision on your
request is due by 7 Mar 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
refuse access to the documents follows.
11. I have taken the following material into account in making my decision:
the terms of your request on 5 February 2023;
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the types of information and documents that are in the Department's possession;
the content of the document that fall 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 47G Public interest conditional exemptions-business
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
FOI Guidelines);
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
refuse access to the documents within the scope of your request in
accordance with the following exemption in the FOI Act:
Public interest conditional exemptions-business (section 47G)
14. 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.
15. The document bundle contains business/financial information relating to third parties. I find
that disclosure of this information, which is not otherwise publicly known, would cause an
unreasonable adverse effect on the business/financial affairs of the third parties.
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16. Accordingly, I have decided that 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).
Application of the public interest test - sections 47G
17. Section 11A(5) provides that an agency 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 would, on balance, be contrary to the public interest.
18. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factors which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act by providing access to
government held information.
19. I also considered the following factors which do not favour disclosure:
(a)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with it function;
(b)
disclosure 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; and
(c)
disclosure could reasonably be expected to prejudice the competitive commercial
activities of an agency.
20. I have placed greater weight on these factors. I consider that the disclosure of the
commercial costings contained in the documents would adversely affect the business
operations of those persons by revealing commercial costings.
21. On balance, I consider the public interest factors against disclosure to be more persuasive
than the public interest factors favouring disclosure. I am satisfied that the public interest is
to withhold the exempt material.
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Information Publication Scheme
22. 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.
23. 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 acc
essed 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
24. 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
25. 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.
26. 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
27. 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 following 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
28. 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
29. 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,
Natalie (Position Number 62211022)
Senior information officer
Information Access Unit
Client Access and Rehabilitation Branch
Department of Veterans' Affairs
7 March 2023
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LEX 55847
Schedule 1
Schedule of documents
Applicant:
Mr Rod Thompson
Decision date:
7 March 2023
FOI reference number:
LEX 55847
Document
Date of
Document description
Page
Decision
Exemption
reference document
number
provision
1
Various CFO Records
1 – 3 Full Refusal
s 47G
2
Various Departmental Accounting & Reporting
1 – 25 Full Refusal
s 47G
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LEX 55847
Schedule 2
Schedule of relevant provisions in the FOI Act
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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 following:
(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 following:
(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 conditionally exempt.
Note 2: A conditionally 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 conditionally 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 following:
(a)
promote the objects of this Act (including all 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.
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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.
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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 shall:
(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 generally be given to a conditionally 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:
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(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).
47G
Public interest conditional exemptions-business
(1)
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; 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
(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 generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
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