LEX 65817
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Zoey (Position Number 62214764),
Senior Information Access Officer, Information Access Unit,
Client and Information Access Branch, Department of Veterans' Affairs
Applicant:
Jenny
Decision date:
9 July 2024
FOI reference number:
LEX 65817
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Jenny,
Freedom of Information Request: LEX 65817
Decision
1.
The Department of Veterans' Affairs (
Department) has undertaken a reasonable search of its
records and has identified twelve (12) document relevant to your request and combined
them into one (1) document bundle.
2.
I have made the decision to refuse access to the document.
3.
The document that I have chosen to refuse access to is set out in
Schedule 1, together with
applicable exemption provisions.
Authority to make decision
4.
I, Zoey (Position Number 62214764), Senior Information Access Officer, Information Access
Unit, Client and Information Access 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.
1
Summary
5.
On 05 March 2024 you made a request for access to documents in the possession of the
Department. Your request sought access to:
' ......
On 14 February 2024 Secretary Frame testified before the FADaTLC (Senate
Estimates):
“Between the end of April and August [2023], I commissioned a range of work and
advice to seek further assurances and more information about the [MATES]
program.” (Page 110 of the transcript)
I apply for copy of these documents (whether held electronically or in discrete form)
of Secretary Frame she refers to in that statement, including any responses she
received in response to those commissioned works and advice sought.
As the MATES program has been the subject of multiple media reports regarding
breaches of privacy and failures to obtain consent, there is a public interest in this
information so please make sure these documents are accessible to everyone when
responding. ’
6.
On 07 March 2024, the Department acknowledged your request via email.
7.
As no extensions of time have been applied to process your request, a decision on your
request was due by 04 April 2024.
8.
In accordance with section 15AC of the FOI Act, the principal officer of the Department is
taken to have made a decision personally refusing to give access to the documents on the
last day of the initial decision period. Even where a decision has not been issued within the
prescribed timeframe, the Department retains an obligation to process and finalise the FOI
request. I would like to apologise for the delay in issuing this decision to you and any
inconvenience it may have caused.
9.
As a decision on your request was not made within the timeframe as prescribed in section
15(5)(b) of the FOI Act, Regulation 7(2) of the
Freedom of Information (Charges) Regulations
2019 prescribed that no charge is payable.
Material taken into account
2
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 document follows.
11. I have taken the following material into account in making my decision:
• the terms of your request on 05 March 2024;
• 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 22
Access to edited copies with exempt or irrelevant material deleted
- Section 42
Documents subject to legal professional privilege
- Section 47E Public interest conditional exemptions-certain operations of
agencies
• 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 document within the scope of your request in
accordance with the following exemptions in the FOI Act:
Documents subject to legal professional privilege (section 42)
14. Section 42 of the FOI Act provides that a document is an exempt document if it is of such a
nature that it would be privileged from production in legal proceedings on the ground of
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legal professional privilege (LPP). The FOI Guidelines provide that, at common law,
determining whether a communication is privileged requires a consideration of:
(a)
whether there is a legal adviser-client relationship;
(b)
whether the communication was for the purpose of giving or receiving legal advice
or for use or in connection with actual or anticipated litigation;
(c)
whether the advice given is independent; and
(d)
whether the advice given is confidential.
15. Having regard to the FOI Guidelines, the Department engaged Proximity to undertake a
review of the Veterans’ Medicines Advice and Therapeutics Education Services (MATES)
program processes in order to advise on the robustness of the opt-out procedure and to
provide any necessary advice and recommendations as a result of that review.
16. The Department maintains that a legal adviser-client relationship exists and that the Reports
and communications between the Department and Proximity, was for the dominant purpose
of giving and receiving legal advice in relation to compliance under the Privacy Act. Further,
the Reports and communications were:
• received, and prepared by Proximity in its capacity as external legal adviser to the
Department
• sent by, and directly to, staff members responsible for responding to the issues
contained in the document on a confidential basis, and
• not intended for wider dissemination.
17. There is no information available to the Department which suggests LPP has been waived in
relation to this matter at this time, expressly or otherwise as the substance of the advice has
not been used in any way which is inconsistent with the maintenance of the confidentiality
of the advice.
18. As section 42 of the FOI Act is not a conditional exemption, I am not required to consider a
public interest test.
Public interest conditional exemptions--certain operations of agencies sections 47E(d)
19. Section 47E(d) conditionally exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient
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conduct of the operations of an agency.
20. This conditional exemption applies to the Report in its entirety. Disclosure of the Letter and
Report would, or could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the Department’s management of litigation.
21. Section 47E(d) of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
22. Paragraph 5.20 of the Guidelines, issued under section 93A of the FOI Act (FOI Guidelines)
provides:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is
sufficiently serious or significant to cause concern to a properly concerned
reasonable person’. The word ‘substantial’, taken in the context of substantial loss
or damage, has been interpreted as ‘loss or damage that is, in the circumstances,
real or of substance and not insubstantial or nominal’.
Proper and efficient conduct of an agency’s operations
23. In Re James and Ors and Australian National University (1984) 5 ALD 687, the phrase
‘conduct of the operations of an agency’ was interpreted to extend ‘to the way in which an
agency discharges or performs any of its functions’.
Paragraph 6.123 of the FOI Guidelines states:
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the
agency is undertaking its expected activities in an expected manner. Where disclosure of the
documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption will not be met and the conditional exemption will not apply.
24. Since the Report was commissioned, the Department has continued to undertake extensive
investigations and analysis in relation to the matters raised in the Report. These
investigations have uncovered a further number of highly complex matters which span three
decades and involve multiple agencies and parties. Accordingly, the Report contains
material, information and legal analysis at a point in time only. Further, the Department is
5
currently managing in response to the matters raised in the Report, a representative
Complaint, Federal Court Proceedings and notices issued by the Royal Commission.
25. The Department contends that the disclosure of the document would, or could reasonably
be expected to have a substantial adverse effect on the proper and efficient conduct of the
Department’s management of litigation on the basis that:
• The Report contains a detailed analysis of the factual and legal issues surrounding a
process that is the subject of litigation as outlined above.
• Disclosure of the Report at this point in time would potentially impact on litigation
as the Report was commissioned on limited facts and information available to both
the Department and Proximity at the time.
• Disclosing this type of information would prejudice the ability of Proximity to provide
full and frank advice to the Department without fear of prejudicial information be
disclosed, particularly in relation to such a significant matter like MATES. It would
inhibit the free exchange of information and, in turn, substantially and adversely
affect the proper and efficient conduct of litigation involving the Commonwealth.
26. Any prejudice would be more than mere irritation, embarrassment or inconvenience to the
Department. In the wrong hands, the information could be used to use information against
the Department eg. subvert the outcome of litigation involving the Commonwealth.
27. Accordingly, for the reasons outlined above I consider that certain material, as identified in
Schedule 1, meets the criteria for conditional exemption under section 47E(d) of the FOI Act.
Application of the public interest test - sections 47E(d)
Application of the public interest test:
28. 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.
29. 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
6
(b)
disclosure would inform debate on a matter of public importance
30. 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 its functions
(b)
disclosure would, or could reasonably be expected to, have a substantial adverse
effect on the proper and efficient conduct of the operations
of an agency;
(c)
disclosure could reasonably be expected to prejudice the management function of
an agency.
31. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
32. 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.
Information Publication Scheme
33. 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.
34. In accordance with section 11C(1)(a) of the FOI Act, details of your request and the
document requested will not be made available in the Department's FOI Disclosure Log as it
relates to business and professional affairs and it would be unreasonable to publish this
information.
Your rights of review
35. If you are dissatisfied with my decision you may apply for Information Commissioner Review
of the decision through the Office of the Australian Information Commissioner (
OAIC). In
accordance with section 54E(b) of the FOI Act, internal review is not available as the
Department did not finalise your FOI request within the prescribed statutory timeframe.
OAIC review
7
36. 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
37. 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
38. 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,
Zoey (Position Number 62214764)
Senior Information Access Officer
Information Access Unit
Client and Information Access Branch
Department of Veterans' Affairs
9 July 2024
8
LEX 65817
Schedule 1
Schedule of documents
Applicant:
Jenny
Decision date:
9 July 2024
FOI reference number:
LEX 65817
Document
Date of
Document description
Page
Decision
Exemption
reference
document
number
provision
1
Various
LEX 65817 – Combined documents
1-178
Refuse
s42, 47E(d)
Access
9
LEX 67354
Schedule 2
Schedule of relevant provisions in the FOI Act
3
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.
11
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
11
(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.
15
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.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
12
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter-that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
23
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.
26
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:
(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).
42
Documents subject to legal professional privilege
(1)
A document is an exempt document if it is of such a nature that it would be privileged from
production in legal proceedings on the ground of legal professional privilege.
13
(2)
A document is not an exempt document because of subsection (1) if the person entitled to
claim legal professional privilege in relation to the production of the document in legal
proceedings waives that claim.
(3)
A document is not an exempt document under subsection (1) by reason only that:
(a)
the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b)
the information is operational information of an agency.
Public interest conditional exemptions
47E
Public interest conditional exemptions-certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
(a)
prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b)
prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c)
have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth, by Norfolk Island or by an agency;
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
14
