Internal review decision FOI BS 5 June 2023.pdf

LEGAL, INTERNATIONAL AND REGULATORY AFFAIRS

RMS Ref: F23/6839

5 June 2023

BS

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

INTERNAL REVIEW - REQUEST FOR ACCESS UNDER THE FREEDOM OF INFORMATION
ACT 1982

Background

By  email  dated  18  February  2023,  you  sought  access  to  the  following  documents  under  the
Freedom of Information Act 1982 (the Act):

I kindly request the following information relating to Airservices Australia activities that are regulated
by CASA:

-Details  of  all  surveillance  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 surveillance.
-A summary of any actions required by Airservices including whether they have been addressed or
are outstanding.

Your  request  also  stated  you  do  not  require  the  names  of  any  CASA  staff,  or  third  parties
contained in the documents. On 16 March 2023, you revised the scope of your request for access
to only seek access to a surveillance report relating to the above.

Decision under review

On  28  April  2023,  CASA  officer  Keeley  Phengrasmy  made  a  decision  not  to  release  the  one
document  within  the  scope  of  your  request  for  access,  namely  a  CASA  document  entitled
Surveillance Report - Airservices Australia  – Level 2 Site Inspect ion  – SDY TCY Surveillance
dated  14/6/2022  to  11/07/2022,  dated  8  August  2022  (the  surveillance  report).  Ms
Phengrasmy’s decision relevantly stated:

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

GPO Box 2005 Canberra ACT 2601

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  still  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).

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  surveillance  relies  on  the  compliance  and  assistance  of  operators  in  disclosing  the
information contained in the surveillance report. If operators were made aware that the investigation
findings could be disclosed to others whilst the investigation is still occurring this has the potential
to  diminish  the  cooperation  and  assistance  operators  may  provide  to  CASA  surveillance,  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 the 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.
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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.

Internal review

By email of 5 May 2023, you sought internal review of CASA officer Phengrasmy’s decision. Your
email stated:

Thank you for following up. I now request internal review of this decision.

For transparency; if the internal review does not find in my favour I will request the OAIC to review
this. This is a document which CASA itself suggested I narrow my scope to, despite it being now
clear that you do not wish to release the document. This has in effect meant CASA has deliberately
extinguished  my  request.  Further,  I  do  not  believe  that  exemptions  on  the  basis  of  a  future
investigation, are warranted when my request is about a historical, point-in-time document which
represents a snapshot of compliance.

Authority to make decision

I am an officer authorised under section 23 of the FOI Act to make decisions in respect of requests
to access a document.

Decision

I have made a different decision to that of Ms Phengrasmy in that I have decided to release parts
of the surveillance report to you, a copy of which is attached.

Conditional exemption – substantial adverse effect on CASA’s operations

Section 47E of the Act states in part:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or
to be conducted by an agency;
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.

In relation to the surveillance event relating to the surveillance report, the CASA audit team spoke
to a number of employees of Airservices Australia. Those discussions were central in identifying
areas  for  surveillance  findings  concerning  Airservices  Australia.  If  civil  aviation  authorisation
holders are made aware that surveillance and compliance findings reliant on assistance provided
by its  employees could be disclosed to others  this has the potential to  remove or  diminish the
cooperation and assistance Airservices Australia may provide to CASA surveillance inspectors,
and therefore the information obtained in compiling future surveillance reports of this nature may
be compromised or affected in a negative manner.

In this regard I highlight that CASA does not have legislative powers to require persons during a
surveillance event to answer questions. CASA only has powers to require authorisation holders
to provide documents to CASA and to provide CASA with access to their premises. It is for this
reason  I  have  decided  not  to  redact  those  parts  of  the  surveillance  report  that  refer  to
documentation of Airservices Australia as a basis to record a surveillance finding.

On  these  basis,  I  consider  parts  of  the  surveillance  report  are  conditionally  exempt  under
sections 47E (b) and (d) of the Act on the grounds that disclosure would or could reasonably be
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expected  to  impede  CASA’s  ability  to  effectively  obtain  information  and  evidence  from  third
parties, and that would:

(i)
prejudice  the  attainment  of  the  objects  of  audits  conducted  or  to  be  conducted  by
CASA;
(ii)
have a substantial adverse effect on the proper and efficient conduct of the operations
of CASA, namely its surveillance functions.

The Public Interest

Even though I have decided that parts of the surveillance report are conditionally exempt under
sections 47E  (b)  and  (d),  I  am  also  required  to  consider  whether  disclosing  those  parts  of  the
document 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 the 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 information during
surveillance and audit events; 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.  I  also  note  the  unredacted  parts  of  the  surveillance  report  identify  the
surveillance findings of the audit team.

On balance, I consider that the public interest favours the protection of the redacted parts of the
surveillance report. I am satisfied that disclosure of those parts of the surveillance report would
be contrary to the public interest.

For  completeness, I  note  that  Airservices  Australia  has  not  accepted  some  of the  surveillance
findings. However, I have taken into account that section 11(4) of the FOI Act relevantly states:

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:
…
(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.
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Section 22 redactions

I also advise the text redacted on pages 2, 3, 13, 14, 16, 18, 20 and 22 of the surveillance report
are the names of CASA officers or third parties. As that information is outside the scope of your
request for access, it has been redacted pursuant to section 22 of the Act.

Review by the Australian Information Commissioner

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,

Adam Anastasi
Manager
Advisory and Drafting Branch
Legal, International and Regulatory Affairs Division

Email: xxxx.xxxxxxxx@xxxx.xxx.xx

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