LEX 65295
Decision and Statement of reasons issued under the Freedom of
Information Act 1982
Decision and reasons 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:
13 December 2024
FOI reference number:
LEX 65295
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Jenny,
Freedom of Information Request: LEX 65295
Decision
1.
The Department of Veterans’ Affairs (
Department) has undertaken a reasonable search of its
records and has identified one (1) document bundle relevant to your request.
2.
I have made a decision to grant access in part to one (1) document bundle.
3.
The document bundle that I have chosen to grant access in part is 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 document, modified by deletions in
accordance with section 22(2) of the
Freedom of Information Act 1982 (Cth) (
FOI Act).
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.
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Summary
5.
On 19 February 2024, you made a request for access to documents in the possession of the
Department. Your request sought access to:
‘…
I request for the purposes of the FOI Act copy of the Assistant Secretary
Community Policy & Research’s official diary and/or calendar entries for 16 October
2023 and 5 February 2024, that can be produced using computers ordinarily
available to the Department.
I also request copy of any email or Teams entry of the Assistant Secretary
Community Policy & Research made between 1 October 2023 and 10 February 2024
that has “DDVA HREC” or “HREC” in it.
The names of any individual who is not a SES employee of the Department is
irrelevant as are signatures, emails, phone numbers and desk locations.
Where a document produced contains information which is not official information
but personal private activity then that part is irrelevant and may be removed.
As there has been significant media reporting on this matter please ensure that the
FOI decision and documents released are accessible for all, consistent with the
purpose and object of Right to Know…’
6.
On 20 February 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 20 March 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.
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Material taken into account
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
grant partial access to the document follows.
11. I have taken the following material into account in making my decision:
▪ the terms of your request on 19 February 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 47C Public interest conditional exemptions--deliberative processes
▪ 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 grant access in part to the document within the scope of your request,
subject to the following exemptions in accordance with the FOI Act:
Public interest conditional exemptions--deliberative processes (section 47C)
14. Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation that has
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taken place, in the course of, or for the purposes of, the deliberative processes involved in
the functions of an agency, a Minister or the Government of the Commonwealth.
15. Having carefully reviewed the document, I am satisfied that part of the document contains
advice, recommendations, consultations and deliberations relating to the Department’s
Policy and Research Division and other business areas functions when it comes to providing
a response or complaint. I am also satisfied the document is not operational information or
purely factual information, and are otherwise not of a kind specifically excluded under
section 47C of the FOI Act.
16. Given the contents of the draft reports and that the reports were not yet complete, I am
satisfied that the draft reports are deliberative.
17. Accordingly, I have decided that parts of document which is 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 – section 47C
18. 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.
19. In order to assess whether release of the exempt material would be contrary to the public
interest, I considered the following factor which favour disclosure:
(a)
disclosure would promote the objects of the FOI Act by providing access to
government held information
20. I also considered the following factors which do not favour disclosure:
(a)
inhibit frankness and candour in the provision of advice, recommendations,
opinions and consultation between departmental officers in relation to deliberative
processes concerning the department's functions. This could reasonably be
expected to have an adverse impact on the decision-making and deliberative
processes of within the Department business sections;
(b)
disclosure would disclose matter (deliberative matter) in the nature of, or relating
to, opinion, advice or recommendation obtained, prepared or recorded, or
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consultation or deliberation that has taken place, in the course of, or for the
purposes of, the deliberative processes involved in the functions of an agency, a
Minister or the Government of the Commonwealth;
(c)
prejudice an agency’s ability to share opinion, advice and recommendations within
the Department; and
(d)
disclose a deliberation.
21. I have placed greater weight on these factors. I consider that the disclosure of the
deliberative information contained in the documents would reasonably be expected to
prejudice the management function of an agency.
22. I am satisfied that no irrelevant factor has been considered, as set out in section 11B(4) of
the FOI Act.
23. 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.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
24. 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.
25. As explained above, some of the documents subject to your request contain exempt and
irrelevant information.
26. On 19 February 2024, as part of the scope of your request, you agreed to the removal of the
names of any individual who is not a SES employee of the Department as irrelevant to the
scope of your request as well as signatures, emails, phone numbers and desk locations.
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27. 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
28. The document bundle released to you in accordance with the FOI Act is enclosed.
Information Publication Scheme
29. 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.
30. I am of the view that details of your request should be made available on the Department’s
FOI Disclosure Log. As such, details of your request will be published on the Department’s
FOI Disclosure Log which can be
accessed at http://www.dva.gov.au/about-dva/freedom-
information/foi-disclosure-log. Please note that the Department does not publish details of
FOI applicants, it only publishes details of the FOI request and the documents released in
response to the request.
Your rights of review
31. 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
32. 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
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Phone:
1300 363 992
Email:
xxxxx@xxxx.xxx.xx
33. 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
34. 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
13 December 2024
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LEX 65295
Schedule 1
Schedule of documents
Applicant:
Jenny
Decision date:
13 December 2024
FOI reference number:
LEX 65295
Document Date of
Document description
Page
Decision
Exemption
reference document
number
provision
1
Various Release Pack
1-441
Part Access
s 22, s 47C
8
LEX 65295
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.
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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).
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47C
Public interest conditional exemptions-deliberative processes
General rule
(1)
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
(a)
an agency; or
(b)
a Minister; or
(c)
the Government of the Commonwealth; or
(d)
the Government of Norfolk Island.
Exceptions
(2)
Deliberative matter does not include either of the following:
(a)
operational information (see section 8A);
(b)
purely factual material.
Note: An agency must publish its operational information (see section 8).
(3)
This section does not apply to any of the following:
(a)
reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not,
including reports expressing the opinions of such experts on scientific or technical
matters;
(b)
reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c)
the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
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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