Our reference: FOIREQ24/00508
Attention: CR
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear CR
Freedom of Information Request – FOIREQ24/00508
I am writing to advise you of my decision in response to your application for internal
review of a decision made on 9 September 2024 under the Freedom of Information Act
1982 (FOI Act), by the original decision maker, Ms Tahlia Pelaccia, of the Office of the
Australian Information Commissioner (OAIC).
An internal review is a fresh decision made by a person other than the person who
made the original decision (s 54C of the FOI Act). All materials available to the
original decision maker have been made available to me.
Background
Scope of your request
By way of background, your FOI request of 9 August 2024 sought access to the
following information:
1.  Operating procedures or similar documents that govern how an IC Review is
conducted, including template documents and template emails.
2.  Operating procedures or similar documents that govern how an FOI Complaint
is conducted, including template documents and template emails.
Al  documents should be the most up-to-date versions, without any editing markup.
Exclusions:
1.  Duplicate documents
2.  FOI Guidelines and other documents published on the OAIC's website (except
those on the OAIC's disclosure log)
3.  The FOI Act and IC Reviews
4.  Emails (except email templates)
5.  Documents tracking IC Reviews or FOI Complaints.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937

For clarity, the fol owing is provided as guidance only on the scope and intentions of my
request:
I am seeking documents similar to those released in the fol owing FOI requests:
−  FOIREQ23/00196 (excluding Document 4 as it is irrelevant to IC Reviews or FOI
Complaints)
−  FOIREQ2300156, including:
o  The latest version of all documents relevant to IC Reviews and FOI
Complaints.  Al  relevant documents listed under the 'Sample
letters/guidance' column in Document 57 "IC review process"
−  FOIREQ23/00111 (latest versions)
−  FOIREQ24/00330, including:
o  The template email "Recent charges decision and invitation to make a
revised decision"
o  The template Attachment to document 1 – Letter about charges
My intention is to access the updated versions of the above-mentioned documents, as
well as any similar relevant documents not captured in the previous FOI requests.
On 13 August 2024, the OAIC sought to consult with you on the scope of your request
as follows:
‘Operating Procedures’ or  We note that your request uses the term
‘Operating Information’
‘operating procedures or similar documents’.
We have interpreted this to have the same
meaning as ‘operational information’ set out in
section 8A of the FOI Act. ‘Operational
information’ is defined as ‘information held by
the agency to assist the agency to perform or
exercise [its] functions or powers’, and includes
‘rules, guidelines, practices and precedents’ held
by the agency to assist in making decisions. For
the purposes of this request, we consider
templates held by the OAIC to be operational
information.
That is, we interpret your request to be seeking
policies, procedures and templates that govern
how the OAIC processes IC reviews and FOI
complaints.
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Please kindly confirm whether you agree with this
interpretation of operating procedures or similar
documents.’
Duplicate Provision of
We note that your request expressly excludes ‘FOI
Documents
Guidelines and other documents published on the
OAIC's website’ from scope, however, does not
exclude documents already uploaded onto the
disclosure log.
Specifical y, you provide the fol owing matter
numbers by way of il ustration of documents you
are requesting:
1.  FOIREQ23/00111
2.  FOIREQ23/00156
3.  FOIREQ23/00196
4.  FOIREQ24/00330
I note that of these requests, you were the FOI
applicant in FOIREQ23/00156 and
FOIREQ24/00196. This means that, in addition to
these documents being uploaded onto the
disclosure log and thus public information, you
are already in possession of the documents
located as part of this request.
To assist in maintaining efficient practices for FOI
processing, we interpret the scope of your request
as excluding documents already provided to
yourself, and documents already uploaded onto
the disclosure log.
This will enable the OAIC to focus on locating any
updated material and avoid duplicate processing
of requests and duplicate provision of
documents.
Updated Versions
In line with the above, our understanding of your
request is that you are only seeking access to
updated versions, if any, of the policies,
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procedures and templates previously released
under the fol owing matter numbers:
1.  FOIREQ23/00111
2.  FOIREQ23/00156
3.  FOIREQ23/00196
4.  FOIREQ24/00330
Please kindly confirm whether you agree with this
interpretation.
That same day you replied, advising:
I agree with your first interpretation regarding operational information.
I agree with your second interpretation regarding exclusions, on the condition that you
list each document excluded in this manner and provide its location. For example:
"Document ABC123 is excluded as it is available on FOIREQ12/12345 Document 47."
Please also release the "Schedule of Documents" for FOIREQ23/00111. If this is not
possible, documents already on the disclosure log remain within the scope of my
request.
I partial y agree with your third interpretation. I am seeking updated versions of the
policies, procedures, and templates from the previously released documents (related
to IC Review and FOI Complaints). However, I am also seeking any other similar
documents (if they exist) that were not included in FOIREQ23/00111, FOIREQ23/00156,
FOIREQ23/00196, and FOIREQ24/00330.
Upon assessment of the amended scope, the OAIC made a decision to process your
request based on the terms of your initial request, dated 9 August 2024.
On 9 September 2024, by way of original decision, you were granted access in full to
159 documents and in part to 24 documents. You made your internal view request of
the initial decision on 8 October 2024. In making your application for review you have
advised of the following:

My request for review is based on two main concerns:

1. Potentially Missing Documents:
I believe there may be documents within the scope of my request that were not
released. These include:
- 55R letter template
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- 55R covering email template
- From FOIREQ24/00330: the template email of "Recent charges decision and invitation
to make a revised decision" and template "Attachment to document 1 – Letter about
charges"

I request a fresh search for documents that fit the scope of "policies, procedures and
templates that govern how the OAIC processes IC reviews and FOI complaints."

2. Inclusion of Previously Released Documents:
The scope of my original request did not exclude documents already uploaded to the
disclosure log. This means that documents released under FOIREQ23/00111,
FOIREQ23/00156, FOIREQ23/00196, and FOIREQ24/00330 should be within the scope of
this request.

== Request for assistance ==

In line with the above, to avoid duplicate provision of documents, I would like to know if
you can process the following as part of this internal review:
- Updated versions, if any, of the policies, procedures and templates previously
released under the fol owing matter numbers:
1. FOIREQ23/00111
2. FOIREQ23/00156
3. FOIREQ23/00196
4. FOIREQ24/00330
If this is not possible as part of the internal review, please advise if a fresh FOI request
would be more appropriate for these updated documents.

Request timeframe
Section 54C of the FOI Act requires me to review the original decision and make a
fresh decision on behalf of the OAIC within 30 days after the day on which your
internal review request was made. So, I must make a fresh decision on behalf of the
OAIC no later than 7 November 2024.
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests on behalf of the OAIC.
I have decided to vary the original decision, having identified a further 79 documents
within the scope of your request, following additional searches of documents by the
Freedom of Information Branch. I have decided to grant you access in full to 77
documents, and access in part to two documents.
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I have grouped four of the 79 documents as ‘bundles’ for easier reference. These
bundles pertain to materials previously released under FOIREQ23/00111,
FOIREQ23/00156, FOIREQ23/00196 and FOIREQ23/00196, and are materials presently
available on the OAIC’s disclosure log.
Additionally, a further 14 documents were identified as draft documents not yet
finalised or approved as ‘operational documents’, which accordingly I have decided
fall outside of the scope of your request (discussed below).
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request. The FOI Guidelines at [3.89] explain:

“Agencies and ministers should undertake a reasonable search on a flexible and common-
sense interpretation of the terms of the request. What constitutes a reasonable search wil
depend on the circumstances of each request and will be influenced by the normal business
practices in the agency’s operating environment.

At a minimum, an agency or minister should take comprehensive steps to locate documents,
having regard to:

•  the subject matter of the documents
•  the current and past file management systems and the practice of destruction or
removal of documents
•  the record management systems in place
•  the individuals within an agency who may be able to assist with the location of
documents, and

•  the age of the documents.”
Following your request for review of the original decision including a request for ‘a
fresh search for documents that fit the scope of "policies, procedures and templates
that govern how the OAIC processes IC reviews and FOI complaints,”’ the following
teams within the Freedom of Information Branch conducted searches for documents
relevant to your request:
•  the Significant Decisions team
•  the FOI Reviews & Investigations team
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Searches were conducted across the OAIC’s various document storage systems
including:
•  the OAIC’s document holding systems – Content Manager/TRIM and
SharePoint
•  OAIC’s email system, Outlook, as well as
•  documents saved on computer desktops
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
•  your FOI request dated 9 August 2024, and the 8 September 2024 decision
made in respect of that request
•  your 13 August 2024 correspondence
•  your internal review request dated 9 October 2024
•  the searches undertaken by the Freedom of Information Branch from 22-24
October 2024
•  the FOI Act, in particular including sections 3, 11, 11A, 15, 22, 26, and 47E of
the FOI Act
•  the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act to which regard must be had in performing a
function or exercising a power under the FOI Act (FOI Guidelines)
•  relevant IC review decisions and case law, including Singh v Commonwealth
Ombudsman [2024] AATA 969.
Access to edited copies with irrelevant and exempt matter deleted (section 22)
In accordance with section 22 of the FOI Act, an agency must consider whether it
would be reasonably practicable to prepare an edited copy of documents subject to
an FOI request where material has been identified as exempt or irrelevant to the
request.
I have determined that FOI Act exemptions apply to this material at documents 18
and 73.  Accordingly, the exempt material has been removed in accordance with s
22(1)(a)(i).
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I have also identified the following material within document 18 which appears to be
irrelevant or outside the scope of your request, and have accordingly made an edited
version of the document in accordance with s 22(1)(a)(ii) of the FOI Act:
−  information concerning IC review and FOI complaints, which appear to have
been inadvertently left in the templates after use.
Additionally, I note that you have requested that all operational (or similar)
documents within scope be the most up-to-date versions, excluding documents with
editing markup from your request. Fourteen (14) documents identified during the
document searches are drafts which have not been finalised or approved for use.
These accordingly fall outside of the scope of your request. Where this has been
practicable to do so, I have also removed this material in accordance with s
22(1)(a)(ii) of the FOI Act.
Section 47E(d) – Proper and efficient conduct of the OAIC’s operations
The material that I have decided is subject to conditional exemption comprises:
1.  details of the OAIC’s security assets at document 18; and
2.  the names and direct contact details of Commonwealth Ombudsman
(COMBO) staff at document 73.
Section 47E(d) of the FOI Act concerns documents which disclose certain operations
of agencies and 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.
Paragraphs [6.14]-[6.16] of the FOI Guidelines explain the test “would or could
reasonably be expected to”:
6.14 The test requires the decision maker to assess the likelihood of the predicted or
forecast event, effect or damage occurring after disclosure of a document.

6.15 The use of the word ‘could’ is less stringent than ‘would’ and requires analysis of
the reasonable expectation rather than the certainty of an event, effect or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.

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6.16 The mere risk, al egation, possibility, or chance of prejudice does not qualify as a
reasonable expectation. There must be, based on reasonable grounds, at least a real,
significant or material possibility of prejudice, if they can be included without
disclosing exempt material (s 26, see Part 3).
The FOI Guidelines further advise on the meaning of ‘substantial adverse effect’ at
[6.18]:
383]. 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’ (see Re Thies and Dept of Aviation [1986] AATA 141 [24]). 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’ [see Til manns Butcheries Pty Ltd v Australasian Meat Employees Union (1979)
27 ALR 367
(Footnotes included)
OAIC security assets
The parts of document 18 which I have concluded are conditionally exempt under s
47E(d) concern certain security assets of the OAIC, which require robust protection to
ensure the confidentiality and integrity of the information they hold.
These assets ensure that only authorised staff can access relevant information
holdings, applications, and networks, in order to perform their functions and duties,
established under the Australian Information Commissioner Act 2010 (Cth). I am of the
view that disclosure of the particulars of certain security assets could compromise
the safety and security of the OAIC’s information holdings. Compromise of key
security assets could impact productivity and lead to delays in critical workflows,
which would in turn have a serious adverse impact on the functions and
responsibilities of OAIC staff.
For the reasons given above, I consider the relevant parts of document 18 identified
in the schedule are conditionally exempt under section 47E(d) of the FOI Act.
Ombudsman staff names and contact details
The parts of document 73, which I have concluded are conditionally exempt under s
47E(d), concern particular names and email addresses of COMBO staff which are not,
as I understand it, used for public communications. As was explained to you in the 8
September 2024 decision made in respect of your original request:
Primarily, the COMBO is the oversight body for complaints made to Commonwealth
Agencies or Departments. The COMBO works to assist to resolve complaints made by
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investigating the process if the agency, provider or organisation does not change their
decision or offer a better explanation of the decision. The role of the COMBO is to
facilitate a genuine complaint process within the Commonwealth government,
promoting accountability and procedural fairness.
Disclosure of names and direct email addresses could thwart the COMBO’s approach
of centralising complaints management through a public contact address.
It is reasonable to expect that persons wishing to voice complaints might use
alternate contact details if disclosed, instead of the publicly approved contact
information provided for that purpose. In Singh v Commonwealth Ombudsman [2024]
AATA 969, Deputy President Bitton-Jones expressed this view concerning the role of
the COMBO in handling public complaints (see particularly [40]).
For the reasons given above, I consider the relevant parts of document 73 identified
in the schedule are conditionally exempt under section 47E(d) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test, discussed below.
Application of the public interest test – (section 11A and 11B)
If the documents are conditionally exempt, s 11(5) provides that access must be
given to them unless access at that time would, on balance, be contrary to the public
interest.
Section 11B(3) provides:
Factors favouring access include whether access to the document would do any of
the following:
(a) promote the objects of this Act (including all the matters set 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.
Bar factor (a), the promoting of the objects of the FOI Act, the other factors have no
or little relevance to the conditionally exempt material in documents 18 and 73. Even
then, the disclosure of that material I found conditionally exempt would shed little
light or scrutiny or do little to enhance the transparency of government decision-
making.

10

Though section 11B(4) provides factors which are not to be taken into account in
making a decision (which I have had regard to), it does not further prescribe the
factors against disclosure to be considered.

I have already concluded that release of information concerning the OAIC’s security
assets in document 18 could have a detrimental impact on the OAIC’s functions and
responsibilities. This is a substantial factor that weighs against disclosure, given
disclosure could have substantially adverse consequences for the maintenance of
effective performance of those functions and responsibilities. In my view, when
considering where the balance lies, this factor outweighs the factors in favour of
disclosure.

I have also concluded that release of the names and contact details in document 73
could adversely impact the COMBO’s operational procedures. This is a substantial
factor that weighs against disclosure, given disclosure could have substantially
adverse consequences for the effective and efficient management of the COMBO’s
complaint handling function. In my view, when considering where the balance lies,
this factor outweighs the factors in favour of disclosure.

I conclude that giving you access to this information would accordingly, on balance,
be contrary to the public interest.

Other Matters
You will note from the document schedule that there are a number of documents
provided to you which have come into existence after the date of your original
request for access. I have decided that these documents are documents that would
have otherwise fallen within the ambit of the decision under review.
I am satisfied that they are documents relevant to your request for access, and in the
spirit of the pro-disclosure principle embodied in the objects of the FOI Act, I have
decided to release those documents to you.
Disclosure log decision
Section 11C of the FOI Act requires agencies to publish online document released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
I have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.
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Release of document
The documents are enclosed for release.
Please see the following page for information about your review rights.

Regards

Caren Whip (she/her)
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P +61 2 9942 4172 E xxxxx.xxxx@xxxx.xxx.xx

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If you disagree with my decision
Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Review Tribunal (ART).
You may apply to the Information Commissioner for a review of my decision
(IC review). If you wish to apply for IC review, you must do so in writing within
30 days. Your application must provide an address (which can be an email address or
fax number) that we can send notices to and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the ART, the Information
Commissioner may decide not to undertake an IC review.
s 57A of the FOI Act provides that, before you can apply to the ART for review of an
FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact xxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
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Document Outline

Freedom of Information Request – FOIREQ24/00508