LEX 67045 Decision Letter JENNY.pdf

LEX 67045

Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reason for decision of Will (Position Number 62373495),
Information Access Officer, Information Access Unit,
Client and Information Access Branch, Department of Veterans' Affairs

Applicant:
Jenny

Decision date:

23 May 2024

FOI reference number:
LEX 67045

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Jenny,

Freedom of Information Request: LEX 67045

Decision

1.
The Department of Veterans' Affairs (Department) has undertaken a reasonable search of its
records and has identified seven (7) documents totalling 33 pages which have been
combined into three (3) document bundles relevant to your request.

2.
I have made a decision to grant access in part to three (3) document bundles.

3.
The documents that I have chosen to grant access in part 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).

Authority to make decision

1

4.
I, Will (Position Number 62373495), 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.

Summary

5.
On 23 April 2024, you made a request for access to documents in the possession of the
Department. Your request sought access to:

'…I request copy of the record of administration of this FOI you registered as LEX
65295, which I can see from other FOIs here you can produce from LEX, to see why
such an unreasonable and excessive delay occurred to not give access...'

6.
On 29 April 2024, the Department acknowledged your request via email.

7.
On 1 May 2024, the Department consulted you to clarify the scope of your request.

8.
On 10 May 2024, the Department sent you a notice of intention to refuse your request
under section 24AB of the FOI Act.

9.
On 10 May 2024, you responded to the section 24AB consult with the following:

‘…I give response that I do not wish to vary my FOI (nor do I wish to bundle separately
made FOIs) as the scope of the FOI does satisfy s 15(2)(b) in that it identified the
documents in scope where those documents that can be produced in LEX for that FOI
that records how the Department processed that FOI…'

10.  I have interpreted this to be for the following documents:

'…I request copy of the documents that can produced using LEX regarding how
matter LEX 65295 was administered…'

11.  As no extensions of time have been applied to process your request, a decision on your
request is due by 23 May 2024.

12.  As you are seeking access to documents that contain your own personal information,
Regulation 7(1) of the Freedom of Information (Charges) Regulations 2019 provides that no
charge is payable.

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Material taken into account

13.  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
grant partial access to the documents follows.

14.  I have taken the following material into account in making my decision:

  the terms of your request on 23 April 2024 and confirmed on 10 May 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 47E
Public interest conditional exemptions-certain operations of
agencies
-  Section 47F
Public interest conditional exemptions-personal privacy

  the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines);

15.  A full extract of all FOI Act provisions used to make my decision are provided in Schedule 2.

Reasons for decision

16.  I have decided to grant access to the documents within the scope of your request, subject to
the following exemptions in accordance with the FOI Act:

Public interest conditional exemptions--certain operations of agencies (sections 47E(d))

17.  Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to, do any of the following:

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23.  Section 4 of the FOI Act provides that personal information has the same meaning as in the
Privacy Act 1988 (Privacy Act). Personal information is defined in section 6 of the Privacy Act
as:

..information or an opinion about an identified individual, or an individual who is
reasonably identifiable:

(a)
whether the information or opinion is true or not;

(b)
whether the information or opinion is recorded in a material form or not.

24.  The elements of 'personal information' are:

(a)
it relates only to a natural person (not, for example, a company);

(b)
it says something about the individual;

(c)
it may be in the form of an opinion, it may be true or untrue, and it may form
part of a database;

(d)
the individual's identity is known or is reasonably ascertainable using the
information in the document.

25.  If information is personal information, it will be conditionally exempt if disclosure would be
'unreasonable'.  In considering whether disclosure would be unreasonable, section 47F(2) of
the FOI Act requires me to take into account:

(a)
the extent to which the information is well known;

(b)
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;

(c)
the availability of the information from publicly accessible sources; and

(d)
any other matter I consider relevant.

26.  The documents outlined in Schedule 1 contain the names and emails of Department staff.
Details of an individual staff member, such as their surname and email is personal
information about that person.
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27.  The Department has policies and procedures to support staff within its operating
environment and to meet its obligations as an employer to provide a safe working
environment. Some policies restrict the amount of identifying information generally
provided by individual staff members to clients. As outlined above, staff are generally
required to identify themselves in correspondence with clients by a given name and position
number. This reduces the likelihood that individuals are reasonably identifiable in a different
context. For example, it reduces the likelihood that a private social media profile can be
linked with an individual who is a staff member of the Department.

28.  I consider that disclosure of personal information of individual staff members in the
document would be unreasonable because it would be inconsistent with Departmental
policies and procedures designed to support a safe and efficient working environment.
Additionally, it would be unreasonable because it would be contrary to the expectations of
those individual staff members, who may rely on those Departmental policies and
procedures for assurance of their personal privacy.

29.  Accordingly, I have decided that the 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 47E and 47F

30.  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.

31.  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.

32.  I also considered the following factors which do not favour disclosure:

(a)
disclosure could be expected to adversely affect the management of staff of the
Department, resulting in a likely reduction in the capability of the Department to
efficiently carry out its functions;

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(b)
disclosure could be expected to adversely affect the delivery of services by the
Department in accordance with its functions; and

(c)
Disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy, both in relation to the third-party individuals and staff
of the Department and other commonwealth agencies.

33.  I have placed greater weight on these factors. I consider that disruption of established
channels for communication and delivery of services would be likely to follow disclosure of
contact information about individual staff members. I consider that impairment of the
Department's ability to efficiently deliver services to veterans and their families could
reasonably be expected as a result. Further, I consider that there is little public interest in
the disclosure of information identifying individuals who are, or have been, staff members in
roles more junior than the Senior Executive Service. Disclosure of that information could
reasonably be expected to result in interference with the privacy of those individuals by
enabling them to be identified in their private lives and associated with actions for which the
Department is responsible.

34.  I consider that there is little public interest in the disclosure of Department staff surnames,
phone numbers, email addresses or positional email addresses used by the Department.
Disclosure of that information could reasonably be expected to adversely affect the business
operations of those persons by revealing.

35.  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.

36.  I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.

Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)

37.  The Department may refuse access to a document on the grounds that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited
copy of the document for release, that is, a copy with relevant deletions made under
section 22 of the FOI Act. The Department is under the same obligation to consider
preparing an edited copy of a document by removing information that would reasonably be
regarded as irrelevant to the request.

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38.  As explained above, some of the documents subject to your request contain
exempt/irrelevant information.

39.  I have removed the name of the staff member who compiled the document, where it is
printed in the top left corner or bottom of the PDF document on the basis that it is out of
scope or irrelevant because it does not form part of the original document.

40.  On this basis, I have prepared the documents for release by removing the exempt and
irrelevant material in accordance with section 22 of the FOI Act. The material that has been
edited for release is marked within the documents as well as at Schedule 1.

Access to documents

41.  The documents released to you in accordance with the FOI Act are attached.

Information Publication Scheme

42.  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.

43.  In accordance with section 11C(1)(a) of the FOI Act, details of your request and the
documents issued to you will not be made available in the Department's FOI Disclosure Log
as it relates to your personal information and it would be unreasonable to publish this
information.

Your rights of review

44.  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

45.  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.

46.  You can make your application for Internal Review in one of the following ways:

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Post:
Information Access Unit,
Department of Veterans' Affairs
GPO Box 9998, Brisbane QLD 4001
Email:
xxxxxxxxxxx.xxxxxx@xxx.xxx.xx

OAIC review

47.  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

48.  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

49.  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

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Yours sincerely,

Will (Position Number 62373495)
Information Access Officer
Information Access Unit
Client and Information Access Branch
Department of Veterans' Affairs

23 May 2024
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LEX 67045
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
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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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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.
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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.

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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:

(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).

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:
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(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).

47F
Public interest conditional exemptions-personal privacy
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:

(a)
the extent to which the information is well known;
(b)
whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;

(c)
the availability of the information from publicly accessible sources;

(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by a
person for access to a document by reason only of the inclusion in the document of matter
relating to that person.
Access given to qualified person instead

(4)
Subsection (5) applies if:
(a)
a request is made to an agency or Minister for access to a document of the agency,
or an official document of the Minister, that contains information concerning the
applicant, being information that was provided by a qualified person acting in his or
her capacity as a qualified person; and
(b)
it appears to the principal officer of the agency or to the Minister (as the case may
be) that the disclosure of the information to the applicant might be detrimental to
the applicant's physical or mental health, or well-being.
(5)
The principal officer or Minister may, if access to the document would otherwise be given
to the applicant, direct that access to the document, so far as it contains that information,
is not to be given to the applicant but is to be given instead to a qualified person who:
(a)
carries on the same occupation, of a kind mentioned in the definition of qualified
person in subsection (7), as the first-mentioned qualified person; and

(b)
is to be nominated by the applicant.
(6)
The powers and functions of the principal officer of an agency under this section may be
exercised by an officer of the agency acting within his or her scope of authority in
accordance with arrangements referred to in section 23.

(7)
In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation
that involves the provision of care for the physical or mental health of people or for their
well-being, and, without limiting the generality of the foregoing, includes any of the
following:

(a)
a medical practitioner;

(b)
a psychiatrist;

(c)
a psychologist;
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(d)
a counsellor;

(e)
a social worker.
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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