LEGAL, INTERNATIONAL AND REGULATORY AFFAIRS
RMS Ref: F23/6839
28 April 2023
BS
Via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear BS,
ACCESS TO DOCUMENTS UNDER THE FREEDOM OF INFORMATION ACT 1982
I refer to your email dated 18 February 2023 seeking access to documents under the
Freedom
of Information Act 1982 (Cth) (the Act). Your request was for:
I kindly request the fol owing information relating to Airservices Australia activities that are
regulated by CASA:
-Details of all surveil ance activity for Sydney Tower and Sydney TCU between the dates
1st January 2022 and 17th February 2023, including any results (including safety
observations, alerts, and findings).
-Details of all enforcement activity related to the abovementioned surveil ance.
-A summary of any actions required by Airservices including whether they have been
addressed or are outstanding.
The date range of your access request is 1 January 2022 to 17 February 2023. You do not
require the names of any CASA staff, or third parties contained in the documents.
On 15 March 2023, I made a decision to impose charges in the amount of $707.29 in relation to
your application.
On 15 March 2023, you emailed contending that the charge should be waived, as you
contended there was a genuine public interest in these documents. You also sought clarification
as to why such a high charge was applied. You requested I advise if a specific aspect of your
request was attributing to such a high charge and that if that was the case you may consider
limiting the request.
On 15 March 2023, I responded that as you were seeking documents that outline the status of
any current findings as I previously explained this is not housed in any one document, I
therefore included in scope all the emails between Airservices and CASA outlining the actions
taken regarding each finding. This volume of documents is what attributed to such a high
charge. I informed outside of these documents the surveil ance report covers most of the scope
of your request (safety observations, alerts, and findings).
On 16 March 2023, you emailed responding
‘I would like to limit my FOI request to the single
document you have referred to. I trust this would remove all charges.’
On 16 March 2023, I responded to your email, advising that although this does not remove all
charges the charges had been drastically reduced as a result of you revising the scope of your
request. At this time, I also provided a revised preliminary charges notice to you which outlined
the new amount of $23.45.
On 16 March 2023, you responded
‘I contend that these charges should be waved. There is
clearly a genuine public interest in the release of these files. The document you refer to outlines
GPO Box 2005 Canberra ACT 2601
safety issues in the Australian aviation industry and refers directly to safety findings of the
regulator at Australia's busiest airport. The information contained in the document could have
wide-ranging safety impacts on every single flight, and every single passenger in and out of
Sydney Airport.’
On 23 March 2023, I made a decision to impose charges as I believed you had not satisfied the
requirements of sections 29(5)(a) and (b) of the Act.
On 23 March 2023, you sought internal review of my decision to impose charges.
On 30 March 2023, CASA’s Branch Manager, Advisory and Drafting notified you of his internal
review decision, deciding that the charges should be waived.
Decision
I am the decision maker for your request. I have identified 1 document containing 22 pages as
listed in the below schedule. I have decided not to release the document to you, for the reasons
set out below.
Document Date
Description
Decision
No.
1
8 August 2022
Airservices Australia Surveil ance Report
Exempt
s37(1)(a)
s47E(d)
Consultation with a third party
In accordance with and as required by sections 27 of the Act, consultation with a third-party took
place regarding Document 1. The third-party objected to the release of the document under
section 47E(d) and section 47C.
Regardless of third-party consultation, I am required to make an impartial decision regarding
disclosure. I have decided to apply to Document 1 section 37(1)(a) and consistent with the third-
party’s objection, I have decided that the section 47E(d) exemption also applies, I have however
decided section 47C does not apply.
Exemption – Documents affecting enforcement of law and protection of public safety
Section 37(1)(a) of the Act provides that a document is exempt if its disclosure would or could
reasonably be expected to prejudice the conduct of an investigation of a breach, or possible
breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or
prejudice the enforcement or proper administration of the law in a particular instance.
Document 1 is relevant to a current CASA enforcement review that is stil under consideration.
Disclosure of the document whilst a current review is occurring has the potential to prejudice the
conduct of the review by releasing information and evidence that has been obtained direct from
the operator, prior to the conclusion of the review. Additionally, during a time of which new
information is still coming to light disclosure of the existing information could adversely affect
CASA’s ability to obtain new information from the operator and therefore delay any subsequent
actions.
I am therefore satisfied that the document is relevant to a current CASA enforcement review
and release of the document would, or could reasonably be expected to, prejudice the
enforcement or proper administration of the law in a particular instance.
For this reason, I have decided that the document is exempt under s.37(1)(a).
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Conditional exemption – substantial adverse effect on CASA’s operations
Section 47E(d) of the Act provides that material is conditionally exempt if its disclosure under the
Act would, or could reasonably be expected to have a substantial adverse effect on the proper
and efficient conduct of the operations of an agency.
CASA surveil ance relies on the compliance and assistance of operators in disclosing the
information contained in the surveil ance report. If operators were made aware that the
investigation findings could be disclosed to others whilst the investigation is stil occurring this
has the potential to diminish the cooperation and assistance operators may provide to CASA
surveil ance, and therefore the information obtained in compiling future reports of this nature
may be compromised.
On this basis I consider that Document 1 is conditionally exempt under section 47E(d) on the
grounds that disclosure would or could reasonably be expected to impede CASA’s ability to
effectively obtain information and evidence from third parties.
The Public Interest
Even though I have decided that Document 1 is conditionally exempt under section 47E(d), I am
also required to consider whether disclosing this information would on balance be contrary to the
public interest. If I am not satisfied of that, access must be given.
Section 31B of the Act provides that a
document is exempt if it is
conditionally exempt under
Division 3, and access to t
he document would also, on balance, be contrary to the public interest
for the purposes of section 11A(5) of the Act.
In applying this test, I have weighed the factors in favour of disclosure against those against it.
I have identified the following factors for disclosure:
• it would promote the objects of the Act, as described in section 3
I have identified the following factors against disclosure:
• it could reasonably be expected to impede the flow of information to CASA as a law
enforcement and regulatory agency; and
• it could reasonably be expected to prejudice CASA’s ability to obtain confidential
information; and
• it could reasonably be expected to prejudice CASA’s ability to obtain similar information
in the future.
In weighing the public interest factors for the purposes of this exemption, I have determined that
access to this information would not be characterised as a matter of public importance telling in
favour of disclosure.
On balance, I consider that the public interest favours the protection of this information. I am
satisfied that disclosure of the abovementioned document would be contrary to the public interest.
Application for internal review of decision
Section 54 of the Act gives you the right to apply for an internal review of my decision. An
application for internal review of my decision must be made in writing within 30 days of receipt
of this letter.
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No particular form is required, but it is desirable to set out in the application the grounds on
which you consider that the decision should be reviewed. An application for review should be
addressed to Freedom of Information at the address below:
Freedom of Information
Advisory and Drafting Branch
Legal, International and Regulatory Affairs Division
Civil Aviation Safety Authority
GPO Box 2005
Canberra ACT 2601
Review by the Australian Information Commissioner
Alternatively, under section 54L of the 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 of the date of this letter, and be lodged in
one of the following ways:
online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
email:
xxxxx@xxxx.xxx.xx
post:
Director of FOI Dispute Resolution, OAIC, GPO Box 5218, Sydney NSW 2001
phone:
02 9284 9666
Yours sincerely,
Keeley Phengrasmy
A/g Freedom of Information Officer
Advisory and Drafting Branch
Legal, International and Regulatory Affairs Division
Civil Aviation Safety Authority
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Document Outline
