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OSI reference: FOI24/13; ACON24/28
19 September 2024
Mr James Smith
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request FOI24/13 – Decision letter
The purpose of this letter is to provide you a decision in relation to you request for access to documents
under the
Freedom of Information Act 1982 (the FOI Act).
Background
On 8 July 2024, you submitted your request to the OSI. You requested to access:
1. A paper titled: “The investigation into alleged war crimes in Afghanistan −
Some legal issues” by The
Hon Mark Weinberg AO QC
2.
An audit report dated December 2021 authored by "Synergy".
On 16 July 2024, the OSI acknowledged your request and advised you that the processing period had been
extended by an additional 30 days due to a requirement to consult affected third parties.
On 6 September 2024, the OSI requested your agreement to extend the processing period for your request
by 10 calendar days. However, no response was received.
On 10 September 2024, the OSI submitted an application to the Office of the Australian Information
Commissioner (OAIC) requesting an extension of time to process your request. The OAIC granted the OSI’s
request the fol owing day, providing the OSI and you with a notice of their decision. The OAIC decided to
grant the OSI a further 10 calendar days to process your request.
A decision in relation to your request is due on 19 September 2024.
My decision
I am authorised to make decisions in relation to freedom of information requests received by the OSI.
I have identified 2 documents that fall within the scope of your request. I did this by arranging for relevant
staff to identify the documents within the OSI’s records management system.
In making my decision regarding access to the relevant documents, I have taken the following material into
account:
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• the terms of your request
• the content of the documents identified as within scope of your request
• relevant provisions of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act (the
Guidelines)
• the views of a third party consulted by the OSI under s 27 of the FOI Act, as wel as views of Australian
Government agencies and departments who were also consulted.
I have decided to grant access in part to each of the 2 documents.
The reasons for my decision have been set out below under the Statement of reasons heading.
The schedule of documents at
Attachment A sets out brief information about each document within the
scope of your request and my decision on access in relation to each document. The documents I have
decided to grant full or partial access to under the FOI Act are at
Attachment B.
Statement of reasons
Section 22: Access to edited copies with exempt or irrelevant matter deleted
Section 22 of the FOI Act provides that if an agency decides to give access to a document that would
disclose information that would reasonably be regarded as irrelevant to the request, and it is possible for the
agency to prepare a copy (an
edited copy) of the document, modified by deletions, the agency must prepare
the edited copy and give the applicant access to it.
In deciding to delete material which would reasonably be regarded as irrelevant to a request, the Guidelines
provide at paragraph 3.95 that:
It is important for agencies to keep in mind that the implicit purpose of s 22 is to facilitate access to
information promptly and at the lowest reasonable cost through the deletion of material that can
readily be deleted, and that an applicant has either agreed or is likely to agree that the material is
irrelevant
When the OSI acknowledged your request on 16 July 2024, you were advised that the following information
would be regarded as irrelevant to your request:
• Personal information of junior officers of the OSI and other government authorities (e.g. names, direct
telephone numbers, flexible working and leave arrangement information.
• Duplicates and incomplete email chains within the scope of the FOI request.
As there is no record available to me to suggest that you disagreed with this approach, I have decided to
regard the above categories of information as irrelevant to your request and have deleted them under s 22 of
the FOI Act.
Section 47: Documents disclosing trade secrets or commercially valuable information
Section 47(1) of the FOI Act
provides that
a document is an exempt document if its disclosure under this Act
would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could reasonably be expected to
be, destroyed or diminished if the information were disclosed.
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I have decided to apply ss 47(1)(a) and 47(1)(b) to document 1.
Section 47(1)(a-b)
In applying these exemptions, paragraph 5.229 and 5.234 of the Guidelines provide that:
The term ‘trade secret’ is not defined in the FOI Act. The Federal Court has interpreted a trade secret as
information possessed by one trader which gives that trader an advantage over its competitors while the
information remains generally unknown.
….
To be exempt under s 47(1)(b) a document must satisfy two criteria:
•
the document must contain information that has a commercial value either to an agency or to another
person or body, and
•
the commercial value of the information would be, or could reasonably be expected to be, destroyed or
diminished if it were disclosed.
I consider that disclosure of the relevant information would disclose information that constitutes trade secrets
and other information having commercial value.
In response to consultation, the organisation to which the information relates advised the OSI that, in their
view, that the information constitutes both trade secrets and has commercial value because it:
• Outlines the organisations’ methodology for conducting audits and how the organisation undertakes its
work.
• The methodology gives the organisation a market advantage over its competitors.
• Is not known outside of the organisation and, in relation to the particular audit to which document 1
relates, the methodology was agreed to and is only known to it and the OSI.
For the reasons given above, I am satisfied that the relevant information is exempt from disclosure pursuant
to sections 47(1)(a) and 47(1)(b) of the FOI Act.
These exemptions are not subject to an overriding public interest test. Accordingly, I have not turned my
mind to whether disclosure of the information would be contrary to the public interest.
Section 47C: Public interest conditional exemption −
deliberative processes
Section 47C of the FOI Act provides that 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 an agency; or a Minister; or the
Government of the Commonwealth.
In applying this exemption, paragraphs 6.46 and 6.76 of the Guidelines, relevantly, provide:
This conditional exemption is characterised by a 3-stage decision making process reflecting the statutory
requirements. Firstly, the decision maker must be satisfied that information within the scope of the request
includes deliberative matter. Secondly, if the decision maker is satisfied, they are then required to be satisfied
that the deliberative matter was obtained, prepared or recorded in the course of, or for the purposes of,
deliberative processes. Thirdly, the decision maker must be satisfied that the deliberative processes were
involved in the functions exercised by or intended to be exercised by an Australian Government agency or
minister. The decision maker must be satisfied that of each of these requirements is met.
…
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link to page 4 link to page 4 link to page 4
In some cases, a document may contain deliberative matter that relates to Cabinet in some way but is not
exempt under the Cabinet documents exemption in s 34. An example would be a document containing
deliberative matter that is marked ‘Cabinet-in-Confidence’ but nonetheless does not satisfy any of the
exemption criteria in s 34. Disclosing a document of this kind wil not necessarily be contrary to the public
interest only because of the connection to Cabinet deliberations. For example, disclosure is less likely to be
contrary to the public interest if:
•
the document contains deliberative but otherwise non-sensitive matter about a policy development process
that has been finalised and
•
the Government has announced its decision on the issue.
Based on advice provided to me, I am satisfied that the relevant material is not purely factual
or operational
information within the meaning of s 8A of the FOI Act
1. I am also satisfied that the material is deliberative
matter within the meaning of section 47C(1). The deliberative matter is ‘Cabinet-in-Confidence’; it has not
been announced by Government, nor does it appear to be otherwise publicly known, and pertains to
deliberative processes involved in the functions of the Government of the Commonwealth.
Accordingly, I have decided that the relevant material is conditionally exempt under section 47C(1) of the
FOI Act. I have turned my mind to whether disclosure of the information would be contrary to the public
interest and have included my reasoning in this regard below under the header ‘
Section 11A(5): Public
interest test’.
Section 47E: Public interest conditional exemption −
certain operations of agencies
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
The categories of information to which I have conditionally applied this exemption comprises:
• Location information of OSI office premises and staff – this information is used only for internal purposes.
• Strategic information, including details of methods by which the OSI and its key partners may obtain
information relevant to Operation Emerald investigations.
Location information
I am satisfied that disclosure of the location information, which is maintained only for internal operational
purposes, would or could reasonably be expected to result in individuals attending, or attempting to attend,
OSI premises or attempting to contact certain kinds of staff if widely known. The location of OSI premises
and staff locations are not published or otherwise made publicly available to ensure the integrity of
investigations and to support the OSI manage identified personnel and physical security risks.
I also consider disclosure would increase the likelihood of targeted attacks on OSI premises and staff, and I
note the OSI is required to provide a safe and secure physical environment for its people, information and
assets under the Protective Security Policy Framework
2, and to ensure, so far as is reasonably practicable,
the health and safety of workers
3. I further note the OSI has established channels through which members of
1 An agency’s
operational information is information held by the agency to assist the agency to perform or exercise the agency’s
functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class
of persons or entities). Example: The agency’s rules, guidelines, practices and precedents relating to those decisions and
recommendations.
2 https://www.protectivesecurity.gov.au/policies/physical-security
3
Work Health and Safety Act 2011, s 19 – Primary duty of care
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the public can contact the agency
4 and, for this reason, I consider there is little or no public interest in
disclosure of this information.
Strategic information
I am satisfied disclosure of the information concerned would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of the OSI. Specifically, the
OSI’s ability to fulfil its investigative functions in the manner expected by the Government. Disclosure would
reveal methods by which the OSI and its key partners may undertake investigate work and obtain
information in this regard. Were this information to be disclosed, it would, or could reasonably be expected
to, undermine the integrity of the joint OSI-AFP investigations and any subsequent prosecutions. It would
also require the OSI to substantially change its current operational and strategic approach to its work, which
would come at substantial reputation, financial and temporal cost to the OSI.
Section 11A(5): Public interest test
Access to a conditionally exempt document must generally be given unless doing so would be contrary to
the public interest. The Guidelines issued by the OAIC provide at paragraph 6.5 that the public interest test is
considered to be:
•
something that is of serious concern or benefit to the public, not merely of individual interest,
•
not something of interest to the public, but in the interest of the public,
•
not a static concept, where it lies in a particular matter wil often depend on a balancing of interests,
•
necessarily broad and non-specific, and
•
related to matters of common concern or relevance to all members of the public, or a substantial section
of the public.
In deciding whether to disclose conditionally exempt material, I have considered the factors favouring access
set out in section 11B(3) of the FOI Act. I have not taken into account the irrelevant factors listed under
section 11B(4) of the FOI Act, which are whether:
•
access to the document could result in embarrassment to the Commonwealth Government, or cause a
loss of confidence in the Commonwealth Government;
•
access to the document could result in any person misinterpreting or misunderstanding the document;
•
author of the document was (or is) of high seniority in the agency to which the request for access to the
document was made;
•
access to the document could result in confusion or unnecessary debate.
Of the factors favouring disclosure, I consider that release of the conditionally exempt material identified for
your request would promote the objects of the FOI Act, including by:
• promoting the objects of the FOI Act, including by informing the community of the Government’s
operations and enhancing the scrutiny of government decision making
• informing debate on a matter of public importance.
The FOI Act does not list any specific factors weighing against disclosure. However, I have considered the
non-exhaustive list of factors against disclosure in the Guidelines as well as the particular circumstances
4 For exampl
e, https://www.osi.gov.au/contact-us
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relevant to the conditionally exempt material. I consider the release of the conditionally exempt material
could, as the case may be, reasonably be expected to prejudice:
• the Government’s future deliberation of a topic identified in document one.
• the OSI’s ability to fulfil its core investigative functions in the manner expected by the Government and,
consequently, the administration of justice generally
• the OSI ‘s to appropriately manage approaches and inquiries from external parties, and to take
reasonable steps to mitigate the likelihood of identified personnel and physical security risks.
On balance, I consider the factors against disclosure outweigh the factors favouring access and that
providing access to the conditionally exempt material identified for your request would be contrary to the
public interest.
Your rights
If you are unhappy with the way we have handled this FOI request, you can make an FOI complaint to the
Information Commissioner.
More information about making an FOI complaint is available on the OAIC website:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-
complaints.
Your review rights
If you are unhappy with this decision, you can apply for an internal review or Information Commissioner
review. You should ask the OSI for an internal review as a first step
.
Internal review
Applications for internal review must be made:
• within 30 days of the date of this letter, and
• in writing to:
xxxxxxxxxxxxx@xxx.xxx.xx.
You should also explain why you believe the internal review is needed.
Information Commissioner review
You can apply to the Information Commissioner for review of this decision. An application for review by the
Information Commissioner must be made to the OAIC:
• Within 60 days of the date of this decision letter.
• Be made in writing – For further information, access:
o
Apply for an Information Commissioner review
o
Your freedom of information rights
GPO Box 812, Canberra ACT 2601
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e www.osi.gov.au
Questions about this decision
If you want to talk about this decision, contact the OSI’s Information Access and Records Manager by email
to
xxxxxxxxxxxxx@xxx.xxx.xx.
Yours sincerely
[Signed electronically]
Caroline
Position number 2508699
Authorised Decision Maker
Office of the Special Investigator
Attachments
Attachment A:
Schedule of documents
Attachment B:
Documents released in response to FOI24/13
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Attachment A: Freedom of Information Request FOI24/13 – Schedule of documents
Document
Document No. of Description/title
Decision on access Exemptions/deletions
number
date
pages
1
16/12/2021 34
Internal Audit Report on the Establishment of the OSI
Grant access in part
22(1), 47(1)(a), 47(1)(b), 47C(1), 47E(d)
2
19/07/2021 22
Paper based on the Special Investigator's remarks at a Grant access in part
22(1)
legal conference in June 2021
