2
5 June 2024
Mr O Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/02/01330
File Number:
FA24/02/01330
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 20 February 2024, the Department of Home Affairs (the Department) received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Under the FOI Act, can I please obtain a copy of al meeting notes or documents
produced for, and as a result of, the meeting between Minister Giles’ Office, Minister
O’Neil’s Office and Departmental officials including General Counsel and Group Manager
Immigration Policy and Assistant Secretary Compliance and Community Protection Policy
on 31 October, 2023, described as "agenda items included litigation update, caseload
snapshot, policy discussion and portfolio implications." in the document tabled at the
Legal and Constitutional Affairs Legislation Committee Senate Estimates on 12 February
2024 in relation to the NZYQ High Court case.
2
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 documents or to amend or annotate records.
808 Bourke Street Melbourne 3001
xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your request
• the documents relevant to the request
• the FOI Act
• Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
• advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
4
Documents in scope of request
The Department has identified seven documents as falling within the scope of your request.
These documents were in the possession of the Department on 20 February 2024 when your
request was received.
Attachment A is a schedule which describes the relevant documents and sets out my decision
in relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is to:
• release two documents, “NZYQ Dashboard 19 October 2023” and “NZYQ Caseload
Snapshot”, by providing access to the versions of the documents published at the following
weblinks:
https:/ www.aph.gov.au/Parliamentary Business/Tabled Documents/4195
https://www.homeaffairs.gov.au/foi/files/2023/fa-231100649-document-
released.PDF
• release two documents in part; and
• exempt three documents in full from disclosure.
6
Reasons for Decision
Section 4(1)(d) of the FOI Act provides that a document for the purpose of the FOI Act does not
include material maintained for reference purposes that is otherwise publicly available. As two of
the documents you have requested access to are publicly available at the web addresses
provided above, I consider that the Department has provided you with access to the documents.
6.1 Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose information
that would reasonably be regarded as irrelevant to the request, it is possible for the Department
to prepare an edited copy of the document, modified by deletions, ensuring that the edited copy
would not disclose any information that would reasonably be regarded as irrelevant to the
request.
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On 26 February 2024, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI request.
I have decided that parts of documents marked ‘s22(1)(a)(i )’ would disclose information that
could reasonably be regarded as irrelevant to your request. I have prepared an edited copy of
the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2 Section 42 of the FOI Act – Legal Professional Privilege
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 legal professional
privilege.
I am satisfied that parts of the documents comprise confidential communications passing
between the Department and its legal advisers, for the dominant purpose of giving or receiving
legal advice.
In determining that the communication is privileged, I have taken into the consideration the
following:
• there is a legal adviser-client relationship
• the communication was for the purpose of giving and/or receiving legal advice;
• the advice given was independent and
• the advice was given on a legal-in-confidence basis and was therefore confidential.
The content of these documents are not part of the rules, guidelines, practices or precedents
relating to the decisions and recommendations of the Department. The documents do not fall
within the definition of operational information and remain subject to legal professional privilege.
I have decided that the parts of the documents marked and redacted ‘s42(1)’ are exempt from
disclosure under section 42 of the FOI Act.
6.3 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the functions
of the Department.
‘
Deliberative matter’ includes opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes of an
agency.
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‘
Deliberative processes’ generally involves “
the process of weighing up or evaluating competing
arguments or considerations”1 and the ‘
thinking processes –the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’2
The documents you have requested contain advice, opinions and recommendations prepared or
recorded in the course of, or for the purposes of, the deliberative processes involved in the
functions of Department. I am satisfied that this deliberative matter relates to a process that was
undertaken within government to consider whether and how to make or implement a decision,
revise or prepare a policy, administer or review a program, or some similar activity. 3
Section 47C(2) provides that “deliberative matter” does not include purely factual material, I am
satisfied that the deliberative material is not purely factual in nature.
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that this information is conditional y exempt under section 47C of the FOI Act.
Access to a conditionally exempt document must generally be given unless it would be contrary
to the public interest to do so. I have turned my mind to whether disclosure of the information
would be contrary to the public interest, and have included my reasoning in that regard below.
6.4 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not (see section 4 of the FOI
Act and section 6 of the
Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role or
employment circumstance.
The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the fol owing four factors set out in s.47F(2) of the
FOI Act:
•
the extent to which the information is well known;
•
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;
•
the availability of the information from publicly available resources;
•
any other matters that I consider relevant.
I have considered each of these factors below.
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individuals concerned are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
I do not consider that the information relating specifically to the third parties would be relevant to
the broader scope of your request. I am satisfied that the disclosure of the personal information
within the documents would involve an unreasonable disclosure of personal information about a
number of individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless it
would be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in that
regard below.
6.5 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part. In summary, the test
is whether access to the conditionally exempt part of the document would be, on balance,
contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being 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.
Having regard to the above I am satisfied that:
•
Access to the documents would promote the objects of the FOI Act.
•
The subject matter of the documents may have a general characteristic of public
importance.
•
Insights into public expenditure wil be provided through examination of the documents.
•
You do not require access to the documents in order to access your own personal
information.
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I have also considered the following factors that weigh against the release of the conditionally
exempt information in the documents:
•
Disclosure of the conditionally exempt information under section 47C could reasonably
be expected to prejudice the ability of the Department to provide honest and frank
advice in consideration of future review processes, inquiries and investigations. I
consider that the disclosure of this type of deliberative material may hinder the future
cooperation or participation in those processes, and that there is a real public interest
in Departmental officers of this agency being able to openly deliberate during the
making of decisions in the future. I consider that disclosing such deliberative material
would be contrary to the public interest and that this factor weighs strongly against
disclosure.
•
Disclosure of personal information which is conditionally exempt under section 47F of
the FOI Act could reasonably be expected to prejudice the protection of third parties’
right to privacy. It is firmly in the public interest that the Department uphold the rights
of individuals to their own privacy, and this factor weighs strongly against disclosure.
•
I am satisfied that if the Department were to release personal information without that
person’s express consent to do so, it would seriously undermine public confidence in
the Department’s ability to receive, retain and manage personal information. I consider
such a loss of confidence to be against the public interest, and this factor weighs
strongly against disclosure.
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
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.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
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8
Your Review Rights
Information Commissioner review
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for an
Information Commissioner review of this decision. You must apply in writing within 60 days of
this notice. For further information about review rights and how to submit a request for a review
to the OAIC, please see https://www.oaic.gov.au/freedom-of-information/your-freedom-of-
information-rights/freedom-of-information-reviews/information-commissioner-review.
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Making a complaint
You may complain to the Information Commissioner about action taken by the Department in
relation to your request.
Your enquiries to the Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Information Commissioner. The
request should be in writing and should set out the grounds on which it is considered that the
action taken in relation to the request should be investigated and identify the Department of Home
Affairs as the relevant agency.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely
[Electronically signed]
David
Position No. 60001672
Authorised Decision Maker
Department of Home Affairs
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