Released by the Department of Finance
OFFICIAL
under the Freedom of Information Act 1982
FOI 23-24/127 - Document 8
Reference:
FOI 23-24/072
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
Ben Fairless
via Right to Know website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Fairless,
Freedom of Information Request – FOI 23-24/072
On 20 December 2024, the Department of Finance (Finance) received your email, in which
you sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) to
the following:
I am seeking a document that contains a comprehensive list of all domain names registered under the
.gov.au second-level domain (2TLD). Specifically, I am interested in the following details for each
domain:
1. Domain Name
2. Registration Date
3. Expiry Date
4. Administrative Contact Information
5. Technical Contact Information
The purpose of this letter is to provide you with notice of my decision under the FOI Act.
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have decided to refuse the release of documents, as they contain information that is subject
to legal professional privilege and consist of material that was obtained in confidence.
In making my decision, I have had regard to the following:
•
the terms of your FOI request;
•
the content of the documents that fall within the scope of your request;
•
consultations with third parties in accordance with the FOI Act and
submissions made by those third parties;
1
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
Released by the Department of Finance
OFFICIAL
under the Freedom of Information Act 1982
FOI 23-24/127 - Document 8
•
the relevant provisions of the FOI Act; and
•
the FOI Guidelines issued by the Office of the Australian Information
Commissioner (FOI Guidelines).
Material subject to legal professional privilege
Section 42 of the FOI Act provides:
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.
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.
Under subsection 42(1) of the FOI Act, a document is exempt from release if it is subject to
legal professional privilege. Legal professional privilege is a common law concept and is not
defined in the FOI Act.
The FOI Guidelines provide the following guidance on whether a document attracts legal
professional privilege:
[5.219] At common law, determining whether a communication is privileged requires a consideration of:
•
whether there is a legal adviser-client relationship
•
whether the communication was for the purpose of giving or receiving legal
•
advice, or use in connection with actual or anticipated litigation
•
whether the advice given is independent
•
whether the advice given is confidential.
The information held by Finance that is in scope of your request, is owned by the entity
auDA who are contracted to administer and manage .gov.au domain names. This
information is provided to Finance under contractual terms to maintain confidentiality and
legal professional privilege over the any data or documents related to domain names.
Both auDA and Finance have treated domain name information confidential, the content of
the document has not been discussed or shared beyond specific authorised individuals who
require access to perform their work responsibilities. As such, legal professional privilege
over the document has not been waived, because the information has not been widely
distributed, its legal advice has not been disclosed, and a person has not announced their
reliance on the legal advice in the documents in a manner that discloses the substance of the
legal advice.
I consider that any documents related to Commonwealth domain names is exempt in full
from release under subsection 42(1) of the FOI Act, as it is privileged from production in
legal proceedings on the grounds of legal professional privilege.
Material obtained in confidence Subsection 45(1) of the FOI Act provides:
1. A document is an exempt document if its disclosure under this Act would found an action, by
a person (other than an agency or the Commonwealth), for breach of confidence.
A document is exempt from release under subsection 45(1) of the FOI Act, if its disclosure
would form the basis of legal action for breach of confidence. In other words, this exemption
applies if a person who provided confidential information would be able to bring an action
for breach of confidence to prevent disclosure, or to seek compensation for loss, or damage
arising from disclosure.
2
2
Released by the Department of Finance
OFFICIAL
under the Freedom of Information Act 1982
FOI 23-24/127 - Document 8
The FOI Guidelines provide:
[5.158] A breach of confidence is the failure of a recipient to keep confidential, information which has
been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly
preserves confidentiality where that confidentiality would be actionable at common law or in equity.
[5.159] To found an action for breach of confidence (which means s 45 would apply), the following five
criteria must be satisfied in relation to the information:
•
it must be specifically identified
•
it must have the necessary quality of confidentiality
•
it must have been communicated and received on the basis of a
•
mutual understanding of confidence
•
it must have been disclosed or threatened to be disclosed, without authority
•
unauthorised disclosure of the information has or will cause detriment.
The material has the necessary quality of confidentiality as the information is only known to
those individuals at auDA and Finance that are required to know to fulfil their role. Access
to the information is otherwise restricted.
The information was communicated and received on the basis of an implied mutual
understanding of confidence, and it is vital that Finance is able to assure third parties making
submissions for the purposes of FOI that information communicated in confidence will
remain confidential. If Finance were unable to assure third parties, then they would be
discouraged from having full and frank conversations with Finance. These transparent
discussions are necessary to ensure Finance can perform our function under the FOI Act.
Therefore, as it is material that was obtained in confidence, I consider that information to be
exempt from release in full under subsection 45(1) of the FOI Act.
Review and appeal rights
You are entitled to request an internal review or an external review by the Office of the
Australian Information Commissioner (OAIC) of my decision. The process for review and
appeal rights is set out at
Attachment A.
If you have any questions regarding this request, please contact the FOI Team on the above
contact details.
Yours sincerely,
Marc Vickers
Assistant Secretary
Governance and Procurement | ICT Division
Department of Finance
January 2024
3
3
Released by the Department of Finance
OFFICIAL
ATTACHMENT A
under the Freedom of Information Act 1982
FOI 23-24/127 - Document 8
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will carried
30 calendar days of being notified of our
out by a different decision maker, usually
decision to release your information.
someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
4
4
Released by the Department of Finance
OFFICIAL
under the Freedom of Information Act 1982
FOI 23-24/127 - Document 8
How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 17 February 2023 it is $1,011).
In your written correspondence, please
include the following:
Further information is accessible
here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessible
here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
External review (Information
The Ombudsman can also investigate
Commissioner Review)
complaints about action taken by agencies
For an ER, you must apply to the OAIC in
under the FOI Act. However, if the issue
writing. The OAIC ask that you commence a
complained about either could be, or has been,
review by completing their online form
here.
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
Your application must include a copy of the
being investigated twice. If the Ombudsman
notice of our decision that you are objecting
decides not to investigate the complaint, then
to, and your contact details. You should also
they are to transfer all relevant documents and
set out why you are objecting to the decision.
information to the IC.
Email: xxxxx@xxxx.xxx.xx
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
Post: Office of the Australian Information
occur where the FOI complaint is only one
Commissioner
part of a wider grievance about an agency’s
GPO Box 5218
actions. You will be notified in writing if your
Sydney NSW 2001
complaint is transferred.
The IC’s enquiries phone line is
Complaints to the Ombudsman should be
1300 363 992.
made online
here.
The Ombudsman’s number is 1300 362 072.
5
5
Document Outline
