Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Collins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Melbourne VIC 3001
17 July 2024
Tel: +61 1300 935 075
Fax: +61 1300 729 000
Me
www.asic.gov.au
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Me,
Notice of Freedom of Information Decision – Ref 142-2024
I refer to your email received on 5 July 2024, in which you seek access to the following
under the
Freedom of Information Act 1982 (Cth) (
FOI Act):
I request a fully unredacted copy of the advice ‘in February 2019, ASIC advised that it had
not been authorised to consider and determine such claims since 2015’ referred to at [5.130]
of the recent SERC report.
On 11 July 2024 I issued a request consultation notice under s 24AB of the FOI Act advising
that I intended to refuse your request on the basis that I was satisfied that a practical refusal
reason existed. On 12 July 2024 you revised the scope of your request to be for ‘the eight
examples of ASIC stating that it was no longer authorised to determine such claims’
mentioned in the s 24AB notice.
The 30-day statutory time period for processing your request commenced on the day after
the day on which your request was received (s 15(5) of the FOI Act). The due date to issue a
decision on your request is therefore 5 August 2024.
Authority to make decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests. This letter gives notice of my decision.
Decision I have conducted searches of ASIC’s records. I have identified 7 documents falling within the
scope of your revised request. I have decided to grant access to 1 document in full and 6
documents in part, relying on the exemptions under ss 37(1)(b), 47F and 47E(d).
I have also decided to redact irrelevant material in the documents under s 22 of the FOI Act,
on the basis that this material would reasonably be regarded as irrelevant to your request for
access, as that material does not comprise any of the eight examples referred to above.
A schedule of documents, which details my decision in relation to each document, can be
found at the end of this letter.
The reasons for my decision are set out below.
Information considered:
2
In reaching my decision, I have considered the following:
• the FOI Act, in particular ss 22, 37(1)(b), 47F and 47E(d);
• the Australian Information Commissioner’s FOI Guidelines issued under
s 93A of the FOI Act (
FOI Guidelines);
• the terms of your revised request;
• details of the searches conducted; and
• the 7 documents falling within the scope of your request.
Reasons for decision
Section 37(1)(b) of the FOI Act – disclosure of a confidential source exemption
Section 37(1)(b) of the FOI Act relevantly provides:
(1) A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential
source of information, or the non-existence of a confidential source of information, in
relation to the enforcement or administration of the law This exemption is intended to protect the identity of a confidential source of information
connected with the administration or the enforcement of the law. This ‘extends to the work of
agencies in administering legislation schemes and requirements, monitoring compliance,
and investigating breaches.’1
It is the source, rather than the information, which is confidential.2 The exemption applies
where the person who supplies that information wishes his or her identity to be known only
to those who need to know it for the purpose of enforcing or administering the law and the
information was supplied on the understanding, express or implied, that the source’s identity
would remain confidential.3
I have found material in 2 documents exempt under s 37(1)(b) of the FOI Act. This material
discloses confidential sources of information connected with ASIC’s investigation, and
therefore with ASIC’s administration and enforcement of the law. I consider that the
information was supplied on the understanding that the source’s identity would remain
confidential.
The FOI Guidelines explain that it is not essential that the confidential source provide the
information under an express agreement. Often an implied undertaking of confidentiality can
be made out from the circumstances of a particular case.4 In this case, I am satisfied that the
information was supplied on an express or implied understanding that the source’s identity
would remain confidential.
1 FOI Guidelines [5.98]. See also
‘OG’ and Australian Securities and Investments Commission [2018]
AICmr 31 [32]
2 FOI Guidelines [5.107]
3 FOI Guidelines [5.108]
4 FOI Guidelines [5.115]
3
Intelligence gathering through conduct complaints from members of the public is an
important part of ASIC’s operations. It is important that evidence that ASIC collects through
complaints from informants be as frank as possible. ASIC’s public position in relation to
managing complaints about ASIC is outlined in Information Sheet 107, which states
‘
Investigations will usually be confidential. Any disclosure of information required for the
investigation to proceed will be on a confidential basis.’5 I am satisfied that the sources
would have wished their existence or identity to be known only to those who need to know it
for the purpose of administering the law.
For the purposes of s 37(1)(b), it is sufficient that a document would be exempt if it would
reveal either the existence or non-existence (rather than the identity) of a confidential source
of information.6 It is also sufficient that a document would be exempt if it would reveal even
an absence of a confidential source of information.7
I am therefore satisfied that disclosure of the material would enable a person to ascertain the
existence or identity of a confidential source in relation to the enforcement or administration
of the law. Accordingly, I consider this material exempt under s 37(1)(b) of the FOI Act.
Section 47E(d) of the FOI Act – certain operations of agencies
For the reasons below, I consider that 2 documents are conditionally exempt under s 47E(d) of
the FOI Act.
Section 47E(d) of the FOI Act relevantly provides:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
The FOI Guidelines relevantly explain:
There must, based on reasonable grounds, be at least a real, significant or material
possibility of prejudice.8 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which
is sufficiently serious or significant to cause concern to a properly concerned reasonable person’.
The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as
‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.’9
This material comprises an operational email address used by the Professional Standards
Unit. This email address is not otherwise publicly available, and disclosure of this information
could reasonably be expected to result in potential vexatious communication and public
inquiries. ASIC has established channels of communication for members of the public to make
lodge reports of misconduct, through its online portal.10
The release of this information would undermine the purpose of ASIC’s report management
protocols and the ability of ASIC to manage future reports of misconduct. There are usually a
5
Guidelines for managing complaints about ASIC officers | ASIC
6 FOI Guidelines [5.110]
7
The Sun-Herald Newspaper and the Australian Federal Police [2014] AICmr 52 [24]
8 FOI Guidelines [6.16]
9 FOI Guidelines [6.18]
10
Make a report of misconduct to ASIC | ASIC
4
very limited number of staff trained in the functions to monitor this mailbox; release would be
unreasonable, as there are streamlined communication pathways for the public to lodge
reports of misconduct.
If members of the public were to use this mailbox it would only be for enquiries completely
unrelated to the business area. If disclosed, it is likely that the email address would be shut
down, further affecting ASIC’s operations given a new email address would have to be set up.
I am therefore satisfied that this material is conditionally exempt under s 47E(d) of the FOI Act.
Section 47F of the FOI Act – personal privacy
For the reasons below, I consider that material in 6 documents is conditionally exempt under s
47F.
The documents comprise the personal information of both ASIC staff and third parties.
Section 47F relevantly provides:
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.
The term, ‘personal information’, is defined in s 4 of the FOI Act to have the same meaning
as in the
Privacy Act 1988 (Cth) (
Privacy Act). Section 6 of the Privacy Act
defines personal
information 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; and
(b) whether the information or opinion is recorded in a material form or not.
The FOI Guidelines state that key factors for determining whether disclosure of a document
would involve an unreasonable disclosure of personal information include:
• the author of the document is identifiable;
• the documents contain third party personal information;
• release of the documents would cause stress on the third party; and
• no public purpose would be achieved through release.11
11 FOI Guidelines [6.137]
5
As discussed in
‘FG’ and National Archives of Australia [2015] AICmr 26
, other relevant
factors include:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s collection and use of the information;
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act;
• any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
• whether disclosure of the information might advance the public interest in government
transparency and integrity.12
I am satisfied that the documents contain personal information.
I consider that the disclosure of personal information of ASIC staff would reveal their
involvement in a sensitive and contentious matter. I accept that the officers named in the
documents could be exposed to unwanted contact as a result of their involvement in the
matter. I also accept that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act, and this can be a relevant
consideration in deciding whether the officer’s details are conditionally exempt under s 47F. I
consider that disclosure of this personal information could reasonably be expected to create
a harassment risk to these staff.
Having regard to the factors in s 47F(2), the Guidelines and
‘FG’ and National Archives of
Australia [2015] AICmr 26, I am satisfied that it would be unreasonable to disclose the
personal information of both ASIC staff and third parties for the following reasons:
• the personal information is not well known or available from publicly accessible
sources;
• the personal information was collected for the primary purpose of managing an
enquiry from a third party;
• disclosure of the information could reasonably be expected to cause detriment to the
persons to whom the information relates by disclosing the individuals’ personal
information without their consent;
• the individuals would be likely to object to disclosure;
• disclosure is unlikely to advance the public interest in government transparency and
integrity; and
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
On balance, I am satisfied that disclosure of this personal information would be an
unreasonable disclosure of personal information. This material is therefore conditionally
exempt under s 47F of the FOI Act.
Public Interest Test
12 FOI Guidelines [6.138]
6
Where a document is conditionally exempt, access must be given unless in the
circumstances giving access would, on balance, be contrary to the public interest (s 11A(5)
of the FOI Act). As I have decided that material is conditionally exempt under ss 47E(d) and
47F of the FOI Act, I am required to consider whether disclosure would be contrary to the
public interest, taking into consideration s 11B of the FOI Act and part 6 of the FOI
Guidelines.
One factor in favour of access is that disclosure could promote the objects of the FOI Act.13
With regard to the public interest factors set out in the FOI Guidelines,14 I consider the
relevant factors against disclosure are that disclosure could reasonably be expected to:
• prejudice the protection of an individual’s right to privacy (s 47F);15
• harm the interests of an individual or group of individuals (s 47F);16 and
• prejudice ASIC’s operational functions,17 in relation to its management of reports of
misconduct (s 47E(d)).
Based on these factors, I have decided that the public interest is weighted more heavily
against disclosure and that giving access to the conditionally exempt material would, on
balance, be contrary to the public interest. The relevant material is therefore exempt under
ss 47E(d) and 47F of the FOI Act.
Section 22 – access to edited copies Where an agency refuses access to an exempt document or decides that giving access to a
document would disclose irrelevant matter, the agency must consider whether it would be
reasonably practicable to prepare an edited copy of the document to delete the exempt or
irrelevant matter in accordance with s 22 of the FOI Act, having regard to:
• the nature and extent of the modification (s 22(1)(c)(i)); and
• the resources available to modify the document (s 22(1)(c)(ii)).
Relevantly, the FOI Guidelines explain:
... an agency or minister should take a common sense approach in considering whether the
number of deletions would be so many that the remaining document would be of little or no value
to the applicant. Similarly, the purpose of providing access to government information under the
FOI Act may not be served if extensive editing is required that leaves only a skeleton
of the former
document that conveys little of its content or substance.18
I consider that it is reasonably practicable to prepare an edited copy of the documents I have
found exempt in part, with the exempt and irrelevant matter redacted.
Your review rights
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision.
13
Freedom of Information Act 1982 (Cth) (FOI Act) s 11B(3)(a)
14 FOI Guidelines [6.233]
15 FOI Guidelines [6.233(a)]
16 FOI Guidelines [6.233(k)]
17
Paul Farrell and Department of Home Affairs (No 5) [2019] AICmr 65 [47]-[50]
18 FOI Guidelines [3.98]
7
Internal review
Under section 54 of the FOI Act, you may apply in writing to ASIC for an internal review of my
decision by another ASIC officer. The internal review application must be made within 30 days
of the date of this letter. This request should be addressed to the Senior Manager, Freedom
of Information, by email t
o xxxxxxxxxx@xxxx.xxx.xx Information Commissioner review Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner
to review my decision. An application for review by the 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://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
email:
xxxxx@xxxx.xxx.xx post: GPO Box 5218 Sydney NSW 2001
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/your-freedom-of-information-rights/freedom-of-information-reviews/information-
commissioner-review
FOI Complaints
You may lodge a complaint with the Australian Information Commissioner in relation to the
conduct of ASIC in the handling of this request. A complaint to the Information
Commissioner must be made in writing. Complaints can be lodged in one of the following
ways:
online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1 email:
xxxxx@xxxx.xxx.xx post: GPO Box 5218 Sydney NSW 2001
More information about complaints is available on the Office of the Australian Information
Commissioner at
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint/ If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the Office of the Australian Information Commissioner has more
information at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
Questions about this decision
8
If you wish to discuss this decision, I can be contacted by phone or email as below.
Yours sincerely
Haydar Tuncer
Senior Lawyer - Freedom of Information
Australian Securities and Investments Commission
Phone: 03 9280 4416
Email: xxxxxx.xxxxxx@xxxx.xxx.xx
SCHEDULE OF DOCUMENTS
No
Date
Pages Description
Decision on access
Exemptions
1
7/3/19
1
Email to third party
Exempt in part,
22, 37(1)(b), 47F,
irrelevant in part
47E(d)
2
8/3/19
1
Email to third party
Exempt in part,
22, 37(1)(b), 47F,
irrelevant in part
47E(d)
3
12/3/19
1
Internal email chain
Exempt in part,
22, 47F
irrelevant in part
4
9/7/19
3
Email chain with third party
Exempt in part,
22, 47F
irrelevant in part
5
13/3/20
4
Letter from Commission
Exempt in part,
22, 47F
Counsel to third party
irrelevant in part
6
27/8/21
1
ASIC response to question on Release in full
notice
7
19/10/21
5
FOI Decision Letter 212-2021 Exempt in part,
22, 47F
irrelevant in part
