DEFENCE FOI 171/24/25
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by James Smith (the applicant), received by the Department of
Defence (Defence), for access to the following documents under the
Freedom of
Information Act 1982 (Cth) (FOI Act):
1.
the document setting out the Chief of Defence Force's recommendations
regarding medals made to the Defence Minister in about mid May 2023; and
2.
subsequent correspondence or materials relating to the same topic.
FOI decision maker
2.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
3.
I have identified 1 document as falling within the scope of the request.
Exclusions
4.
Personal signatures and telephone numbers contained in documents that fall within the
scope of the FOI request are excluded from this request. Defence has only considered
final versions of documents.
Decision
5.
I have decided to:
a. partially release one (1) document in accordance with section 22 [access to
edited copies with exempt or irrelevant matter deleted] of the FOI Act on the
grounds that the deleted material is considered exempt under section 42
[Documents subject to legal professional privilege], section 47C [Public
interest conditional exemptions - deliberative processes], section 47E [Public
interest conditional exemptions – certain operations of agencies], section 47F
[Public interest conditional exemptions – personal privacy] of the FOI Act; and
b. remove irrelevant material in accordance with section 22 of the FOI Act.
Material taken into account
6.
In making my decision, I have had regard to:
a. the terms of the request;
b. the content of the identified document in issue;
c. relevant provisions of the FOI Act;
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d. consultation with the Office of the Special Investigator; and
e. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines).
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
7.
Section 22 of the FOI Act permits an agency to prepare and provide an edited copy of
a document where the agency has decided to refuse access to an exempt document or
that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access.
8.
The document contains exempt material and information that does not relate to the
request.
9.
I am satisfied that in relation to the body of the document (two (2) pages) it is
reasonably practicable to remove the exempt and irrelevant material and release the
document to you in an edited form. It is not practicable to do so for the enclosure.
Section 42 – Documents subject to legal professional privilege
10.
Section 42(1) of the FOI Act states:
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.
11.
I have identified legal material within the document for which a claim of Legal
Professional Privilege (LPP) is warranted.
12.
The Guidelines provide at paragraph 5.149, that in considering whether LPP exists,
the following factors should be considered:
a. whether there is a legal adviser-client relationship;
b. the communication was for the dominant purpose of giving or receiving advice,
or for the use or in connection with actual or anticipated litigation;
c. the advice given is independent;
d. there have been confidential communications in respect of the document; and
e. the privilege has not been waived.
13.
I am satisfied that the legal adviser/client relationship has been established, as the
advice was provided by a qualified lawyer, who was acting in their capacity as a
professional adviser.
14.
I am satisfied that the specific material relevant to this request was created for the
dominant purpose of a client seeking legal advice from a legal adviser.
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15.
Some material within the scope of this request represents communication between a
legal adviser and a client made in confidence in relation to matters that might be
reasonably expected to give rise to future litigation.
16.
I find no evidence to call into question the independence of the legal adviser.
17.
I note that LPP is the client’s privilege to waive and I am satisfied that the waiver has
not occurred.
18.
On this basis, I am satisfied, therefore, that the parts of the document redacted under
section 42 should be privileged from production and are exempt under section 42 of
the FOI Act.
Section 47C – Public interest conditional exemptions - deliberative processes
19.
Section 47C of the FOI Act states:
(1) 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:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an
agency or not, including reports expressing the opinions of such experts
on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision
given in the exercise of a power or of an adjudicative function.
20.
The Guidelines provide:
6.54 Deliberative process’ generally refers to the process of weighing up or
evaluating competing arguments or considerations or to thinking processes – the
process of reflection, for example, upon the wisdom and expediency of a proposal,
a particular decision or a course of action.
6.55-6.56 [The deliberative process must relate to] the functions of an agency,
minister or government. The functions of an agency are usually found in the
Administrative Arrangements Orders or the instrument or Act that established the
agency.
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6.57 A deliberative process may include the recording or exchange of:
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opinions
•
advice
•
recommendations
•
a collection of facts or opinions, including the pattern of facts or
opinions considered
•
interim decision or deliberations.
21.
Further, in relation to the exclusion in section 47C(2)(b) of the FOI Act, the
Guidelines, at paragraph 6.70, state that:
‘[p]urely factual material’ does not extend to factual material that is an integral
part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.
22.
Upon examination of the document, including its enclosure, I find it contains
deliberative matter in the nature of opinions and advice that were prepared to inform a
decision making process relating to the management of Defence personnel, which is a
function of both the agency and Minister for Defence.
23. I am also satisfied that:
• to the extent that the document contains material that may be considered of a
factual nature, such material is not ‘purely’ factual as it forms an integral part
of the deliberative content and purpose of the documents, and is embedded in
or intertwined with the deliberative content such that it is impracticable to
separate it;
• the deliberative material is not ‘operational information’ within the meaning of
section 8A of the FOI Act; and
• the document is not a document of a kind specified in section 47C(3).
24.
Therefore, I have decided that the material identified is conditionally exempt under
section 47C of the
FOI Act.
Section 47E – Public interest conditional exemptions – certain operations of agencies
25.
Section 47E(c) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or an agency.
26.
The Guidelines, at paragraph 6.105, provide that:
The decision maker may also need to consider the context of the document and
the integrity of a system that may require those documents, such as witness
statements required to investigate a workplace complaint, or referee reports to
assess job applicants.
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27. The document was created to assist the Minister to assess whether certain persons
should retain their honours and awards. Third parties involved in this matter would
reasonably expect that information relating to them and provided in confidence for a
specified purpose would not be disclosed to parties not involved in the decision
making process. As such, I am satisfied that if the information contained in the
documents was made publically available it would substantially affect the integrity of
the process and have an adverse effect on the management or assessment of personnel
by Defence.
28.
Accordingly, I am satisfied that all relevant information related to the honours and
awards process is conditionally exempt under section 47E(c) of the FOI Act.
Section 47F – Public interest conditional exemptions - personal privacy
29.
Section 47F(1) of the FOI Act states:
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).
30.
The FOI Act shares the same definition of ‘personal information’ as the
Privacy Act
1988 (Cth). The Guidelines provide that:
6.123 Personal information means 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.
31.
I found that the documents contain personal information about an individual that is not
well known and is not publically available.
32.
In my assessment of whether the disclosure of personal information is unreasonable, I
considered the following factors in accordance with section 47F(2):
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; and
d. the effect the release of the personal information could reasonably have on the
third party.
33.
I found that the individuals whose personal information is contained in the documents
are not widely known to be associated with the matters dealt with in the documents
and the information is not readily available from publicly accessible sources.
34.
Taking into account the above factors, I consider that the release of the personal
information of individuals other than the applicant would be an unreasonable
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disclosure of personal information and conditionally exempt under section 47F of the
FOI Act.
Public interest considerations - section 47C, 47E(c) and 47F
35. Section 11A(5) of the FOI Act states:
The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances)
access to the document at that time would, on balance, be contrary to the
public interest.
36. I have considered the factors favouring disclosure as set out in section 11B(3) [factors
favouring access] of the FOI Act, that is, whether giving access to the document would:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure.
37. I accept that there is a public interest in disclosing the information in the document
insofar as doing so would:
i.
promote the objects of the FOI Act by facilitating access to government
information in a general sense; and
ii.
contribute to public debate and transparency, and informing scrutiny or
discussion of Defence activities and decision-making processes.
38. I have also considered public interest factors against disclosure. Paragraph 6.233 of the
Guidelines specifies a non-exhaustive list of public interest factors against disclosure.
The factors I find particularly relevant to this request are that release of this information
could reasonably be expected to prejudice:
i. the protection of an individual’s right to privacy, insofar as the material
comprises the third party personal information;
ii. the interests of an individual or a group of individuals;
iii. an agency’s ability to obtain confidential information; and
iv. an agency’s ability to obtain similar information in the future.
39. Further,
i. as discussed above, third parties involved in this matter would reasonably
expect that information relating to them and provided in confidence for a
specified purpose would not be disclosed to parties not involved in the decision
making process;
ii. to release personal information of a third party could reasonably impact their
personal interests, diminish confidence in the management of sensitive matters
by Defence and create a reluctance on the part of individuals to provide
information in respect of future matters;
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iii. a reluctance of individuals to provide full and frank information would
prejudice Defence’s capacity to undertake decision-making processes in future;
iv. there is strong public interest in individuals involved in organisational decision
making to provide voluntary, frank and timely information as part of
organisational decision making and to have confidence in those processes; and
v. the disclosure of confidential statements would also be likely to impact
detrimentally on the morale of Defence members and former members.
40.
I have not taken any of the factors listed in section 11B(4) [irrelevant factors] of the
FOI Act into account when making this decision.
41.
I am satisfied that in the circumstances, and based on the above particulars, the public
interest factors against disclosure outweigh the factors for disclosure, and therefore
disclosure would be contrary to the public interest. Accordingly, I find that the
information is exempt under sections 47C, 47E(c) and 47F of the FOI Act.
FURTHER INFORMATION
42.
The document matching the scope of this request contained a dissemination limiting
marker (DLM). As the document has been approved for public release, the DLM has
been struck through.
catherine.wallis Digitally signed by
catherine.wallis
Date: 2024.10.30 12:04:29 +11'00'
Catherine Wallis, CSM
Air Commodore
Accredited Decision Maker
Associate Secretary Group
Department of Defence
