Reasons for not including info about release of docs in Disclosure log - Davidson & Lloyd

JS made this Freedom of Information request to Merit Protection Commissioner

The request was successful.

From: JS

Delivered

Dear Merit Protection Commissioner,

On 2 November 2018 an authorised officer of the Merit Protection Commissioner provided documents to an FOI applicant. The Merit Protection Commissioner is required by section 11C of the FOI Act to publish information in a disclosure log within 10 working days after the FOI Applicant was given access to a document. The disclosure log requirement does not apply to:
• personal information about any person if publication of that information would be 'unreasonable'
• information about the business, commercial, financial or professional affairs of any person if publication of that information would be 'unreasonable'
• other information covered by a determination made by the Australian Information Commissioner if publication of that information would be 'unreasonable'
• any information if it is not reasonably practicable to publish the information because of the extent of modifications that would need to be made to delete the information listed in the above dot points.

The release of the documents on 2 Nov by the Merit Protection Commissioner is not reflected in its disclosure log. Under FOI I seek access to a document that contains the reasons for the decision not to publish the information in the disclosure log.

Yours faithfully,

JS

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From: DINNING,Sarah
Merit Protection Commissioner

For Official Use Only
Dear JS

I am responding to your FOI request of 20 November 2018.

I was the decision maker who released the documents you refer to in your email. After making that decision, I overlooked the requirement to make a decision about whether to publish the documents in the disclosure log on the APSC's website. My oversight has been brought to my attention and I have now made a decision about publication in accordance with section 11C of the FOI Act.

I have concluded that publication of the information on the APSC website would be unreasonable as the information is personal information and a third party objected to its release both when consulted and on internal review. Having regard to the nature of the information, I considered it would be unreasonable to publish the information further.

In light of this advice, could you please advise whether you wish to withdraw your FOI application.

Yours sincerely

Sarah Dinning    l     Authorised FOI Decision-Maker
Office of the Merit Protection Commissioner

P: 02 8239 5330    l    [email address]

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From: JS

Delivered

Dear Sarah,

Thank you for a refreshingly frank reply.

Your email of 23 Nov indicates that a decision has been made about publication in accordance with section 11C of the FOI Act. You have concluded that publication of the information on the APSC website would be unreasonable as the information is personal information and a third party objected to its release both when consulted and on internal review. Having regard to the nature of the information, you considered it would be unreasonable to publish the information further.

Under section 24A of the FOI Act access can be refused because, after taking all reasonable steps to find documents, an agency is satisfied that the documents do not exist. OAIC Guidelines state that the right of access applies to documents that exist at the time the FOI request was made. An applicant cannot insist that their request cover documents created after the request is received. However, the agency or minister could consider whether to include documents that were created after the request was received. This could be more administratively efficient because the applicant might otherwise submit a new request for the later documents.

An authorised officer could conclude that no document existed at the time the FOI request was received. The email of 23 Nov however, created after the FOI request was received, appears to be a document contemplated by the Guidelines that would fall within the scope of the request .

While I disagreed with the decision not to publish the information in the disclosure log, I regard the FOI request as complete because you provided a document containing the information sought in the request.

Kind regards

JS

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