Our Ref: FOI-2024/0328114738
25 June 2024
Mr Alex Pentland
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
Internal review request under the Freedom of Information Act
1982 (Cth)
I refer to your email dated 26 May 2024 to the Australian Human Rights
Commission (
Commission) requesting an internal review of the Commission’s
decision dated 29 April 2024 (
29 April Decision).
This letter is to advise you of my decision in relation to the requested internal
review. I am an officer authorised under s 23(1) of the
Freedom of Information Act
1982 (Cth) (
FOI Act) to make decisions in relation to FOI requests.
FOI request and the Decision
1. On 28 March 2024, you emailed the Commission requesting access to
“correspondence between officials of the Australian Human Rights
Commission relating to Lorraine Finlay’s piece in The Nightly titled “Do not
turn a blind eye to hate / In silence, anti-Semitism and racism flourishes””.
2. As a result of communications with my colleague Jessica Tran, on 3 April
2024, you agreed to reduce the scope of your request to correspondence
sent between relevant Commission staff who were involved in preparing
Commissioner Lorraine Finlay’s article in The Nightly published on 27 March
2024 (
Opinion Piece). In that correspondence, you also agreed to the
redaction of names and personal details of non-SES Commission staff in the
documents under s 22 of the FOI Act.
3. On 29 April 2024, you were provided with the decision in relation to your FOI
request along with a schedule of documents (
Schedule) and a bundle of the
documents being released to you. The 29 April Decision was as follows:
• access was granted in full to documents 1, 4, 5, 7, 20, 21, 22, 23, 23A,
24A, 25, 26, 28 and 29 in the Schedule
• partial access was granted to documents 3, 24 and 27 in the Schedule,
with redactions made under s 22 of the FOI Act
• partial access was granted to documents 2, 6, 8, 9 to 15, 16 to 19 in the
Schedule, with redactions to those documents made under either or
both s 47C and s 47E of the FOI Act, and redactions made under s 22 of
the FOI Act
• access was refused to documents 1A, 2A, 5A, 9A and 15A in the
Schedule, being draft copies of the Opinion Piece, under s 47C of the
FOI Act.
4. On 28 May 2024, you requested an internal review of the 29 April Decision,
specifically the decisions to refuse access to documents or parts of
documents under s 47C and s 47E of the FOI Act.
Decision and reasons for decision
5. I have decided to affirm the original 29 April Decision. This means that I have
decided to refuse access to documents or parts of documents in accordance
with the 29 April Decision. My reasoning is set out below.
6. I have taken the following material into account in making my decision:
• the correspondence between you and the Commission in relation to your
FOI request and request for an internal review
• the FOI Act
• the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act
• relevant case law.
Deliberative processes – section 47C of the FOI Act
7. In the 29 April Decision, access was refused to documents 1A, 2A, 5A, 9A and
15A, and redactions were made to documents 2, 6, 8, 9 to 15, and 16 to 19,
on the basis that the withheld information is ‘deliberative matter’ and
considered exempt from disclosure under s 47C of the FOI Act.
8. Section 47C of the FOI Act provides that a document is conditionally exempt
from disclosure if it contains deliberative matter.
9. Deliberate matter is content that is in the nature of, or relating to either:
a) an opinion, advice or recommendation that has been obtained,
prepared or recorded, or
b) a consultation or deliberation that has taken place, in the course of,
or for the purpose of, a deliberative process of the government, an
agency or minister.
10. As stated in paragraphs 12 and 13 of the 29 April Decision, deliberative
matter may include a collection of facts or opinions, the pattern of facts or
opinions considered, or interim decisions or deliberations. Deliberative
matter does not include operational information or purely factual material, or
a decision reached at the end of the deliberative process. I also note
paragraphs 14 and 15 of the 29 April Decision which further sets out what a
deliberate process involves.
11. I have examined unedited copies of the documents at issue. Documents 2, 6,
8, 9 to 15, and 16 to 19, comprise parts that express opinions, advice,
recommendations and the weighing up and evaluation of arguments and
considerations in relation to the evolution of the Opinion Piece including the
drafts of the Opinion Piece before it was finalised. It is clear to me that such
discussions were interim in nature, as those involved provided opinions and
suggestions and sought clarification on certain points in the Opinion Piece in
its draft versions. I am of the view that these discussions were not intended
to be considered as ‘final’ but were a part of the process before arriving at a
final product. In my view, these documents contain deliberative matter.
12. Documents 1A, 2A, 5A, 9A and 15A are working drafts of the Opinion Piece.
These are not the final product and content was edited, deleted, and added
to as the draft evolved. In my view, these documents are deliberative matter.
13. The preparation of drafts in the process of arriving at a final product, and
such internal discussions as described above is an operational function of an
agency.
14. However, pursuant to s 11A(5) of the FOI Act, a document must be disclosed
even if it is conditionally exempt, unless disclosure of the document would
be contrary to the public interest. In my view, disclosure of the
redacted/withheld material, would be contrary to the public interest.
15. In forming this view, I have had regard to the below matters.
16. Disclosing the documents would promote the objects of the FOI Act (s
11B(3)(a)). I consider that this is the only factor in favour of disclosure and
that it is outweighed by other factors. Given the other material disclosed, I
link to page 4 link to page 4
am not satisfied that disclosure of the withheld material would inform public
debate on a matter of public importance (s 11B(3)(b)).
17. One relevant public interest factor against disclosure identified in the FOI
Guidelines is that disclosure could reasonably be expected to prejudice the
management function of an age
ncy.1The list of factors set out in the
Guidelines is non-exhaustive.
18. Relevant management functions of the Commission include promoting an
understanding and acceptance, and the public discussion, of human rights in
Australia
.2 The Opinion Piece by the Human Rights Commissioner, concerns
a topical human rights issue. The withheld documents and parts of
documents contain discussions that ultimately go towards determining how
best the Commission can promote an understanding of the human rights
issues at play in this particular context, and how best to promote public
discussions around such issues.
19. I am satisfied that disclosure of the withheld material could reasonably be
expected to inhibit the effectiveness of the evaluation and decision-making
processes of the Commission relevant to exercising this function.
20. There is a public interest in protecting the integrity of decision-making
processes. This can be done by separating the final decisions from the
opinions and discussions around specific decisions made along the way and
provided at earlier stages of the consideration of a matter. The opinions
expressed in the withheld material were preliminary in nature, they did not
necessarily constitute final decision and were not intended to be viewed as
constituting final decisions.
21. Having regard to all these matters, I am satisfied that disclosure of the
withheld material in these documents would be contrary to the public
interest.
22. I have reviewed the reasons provided for refusing access to these
documents and parts of documents as set out in the 29 April Decision. I refer
to paragraph 23 of that decision:
I consider that there is public interest in protecting drafts of opinion pieces
intended for publication and related discussions, allowing for frank
consideration of the issues and open collaboration between Commission staff
(including the President and Commissioners). The draft Opinion Piece
contains preliminary views by its author and was not intended to be viewed or
1 Australian Information Commissioner, FOI Guidelines [6.22(n)].
2
Australian Human Rights Commission Act 1986 (Cth), s 11(1)(g).
published in that form, the draft opinion piece therefore represents the
thinking process prior to producing the final product. I consider there is public
interest in protecting the integrity of decision-making, to separate material
that was contemplative in nature and the final decision.
I agree with this assessment.
23. To the extent that there is material in the documents likely to inform debate
on a matter of public importance, I consider that it is contained in the parts
of the documents that have been released.
24. Having regard to the considerations set out above, I am satisfied that the
reasons provided by the original decision maker were correct and affirm the
29 April Decision to redact parts of documents 2, 6, 8, 9 to 15, 16 to 19 under
s 47C of the FOI Act, and to refuse access to documents 1A, 2A, 5A, 9A and
15A under s 47C of the FOI Act.
Certain operations of the agency – section 47E of the FOI Act
25. In the 29 April Decision, access was also refused to parts of documents on
the basis that disclosure would have a substantially adverse effect on the
proper and efficient conduct of the Commission’s operations and are
conditionally exempt from disclosure under s 47(E)(d) of the FOI Act. With
reference to the Schedule and bundle of documents provided to you,
redactions were made under s 47(E)(d) to documents 2, 6, 8, 9, 11, 13, 14, 15,
16, 17, 18, and 19.
26. I have examined unedited copies of the documents at issue. For the reasons
set out below, I am of the view that the redacted parts of these documents
are conditionally exempt under s 47(E)(d) of the FOI Act and that it would be
contrary to the public interest for the withheld parts of these documents to
be released to you.
27. Under s 11(1)(g) of the
Australian Human Rights Commission Act 1986 (Cth)
(
AHRC Act), one of the Commission’s functions is to promote an
understanding and acceptance, and the public discussion, of human rights in
Australia. In section 3.1 above, at paragraphs 18, I have outlined why I am of
the view that the documents captured by your FOI request were created in
exercising this function.
28. To be able to do this effectively, it is vital that Commission staff, especially
senior staff who are responsible for making decisions at the highest level,
can communicate with one another in a candid fashion. An important part of
being able to communicate frankly with colleagues is the expectation that
some discussions will be kept confidential. Often these is no specific
intention for the discussions to be treated as confidential but due to the
nature of the information discussed, disclosure would or could reasonably
be expected to come as a surprise to those providing it and could discourage
them from speaking candidly which would hinder the best interests of the
agency in carrying out its functions. Confidentiality of certain discussions
provide an incentive to those within the Commission to fully, and without
hesitation, participate openly in the Commission’s internal deliberative
processes to best assist the agency to carry out its functions.
29. Under s 11A(5) of the FOI Act, a document must be disclosed even if it is
conditionally exempt, unless disclosure of the document would be contrary
to the public interest. In my view, disclosure of the parts of the documents in
question would be contrary to the public interest.
30. I have reviewed the reasons given in the 29 April Decision as to why the
original decision maker concluded that disclosure of this material would be
contrary to the public interest. In my view, the considerations and
assessment set out in paragraphs 35 to 41 of that decision are correct.
31. The only additional comment I will make on this point is that while I consider
that the overarching substantive subject matter of the published Opinion
Piece and related discussions may in a general sense relate to a matter of
public importance, the documents in question specifically contain
Commission staff’s deliberations and internal working processes that were
not intended to be viewed as final decisions. Therefore, I consider that
release of these documents would only inform debate on a matter of public
importance to a limited extent.
32. Accordingly, it is my view that disclosure of the parts of the documents in
question would be contrary to the public interest.
Your review rights
Information Commissioner review
33. Under s 54L of the FOI Act, you may apply to the OAIC to review my decision.
An application for review by the OAIC Information Commissioner must be
made in writing within 60 days of the date of this letter, and be lodged in one
of the following ways:
• online: https://www.oaic.gov.au/freedom-of-information/reviews-
and complaints/information-commissioner-review/
• email:
xxxxxxxxx@xxxx.xxx.xx
• post: GPO Box 5218, Sydney, NSW, 2001
• in person: Level 3, 175 Pitt Street, Sydney, NSW
34. More information about Information Commissioner review is available on
the Office of the Australian Information Commissioner website. Go to
https://www.oaic.gov.au/freedom-of-information/foi-review-process.
Yours sincerely
Hashini Panditharatne
Senior Lawyer
T: +61 2 9284 9712
E:
xxxxxxx.xxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
