FOI Reference: LEX 11702
File Reference: 24/39872
January 2025
Tyler (Right to Know)
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Tyler,
Re: Freedom of Information Request
I refer to your request received by the Department of Foreign Affairs and Trade (the
department) for access to documents under the
Freedom of Information Act 1982 (the FOI
Act).
I am writing to provide you with a decision about your request.
I have identified documents relevant to your request. After careful consideration, I have
decided to grant you access to an edited copy of the documents, with irrelevant and exempt
material removed.
Your request
On 28 October 2024, you made the following request:
‘Is it possible to provide, to extent possible subject to necessary redactions or
omissions, copy of formal diplomatic or other statements or notes, which relate to
Australia’s recognition and establishment of diplomatic relations, that were
exchanged between the government of Australia and Kosovo (around 2008)?’
On 15 November 2024, the department requested a 14-calendar day extension of time to
process your request (section 15AA of the FOI Act).
On 16 November 2024, you consented to the extension of time. The department
subsequently notified the Office of the Australian Information Commissioner (OAIC) of the
extension of time in accordance with our reporting obligations.
On 28 November 2024, the department requested a 7-calendar day extension of time to
process your request (section 15AA of the FOI Act).
On 29 November 2024, you consented to the extension of time. The department
subsequently notified the Office of the Australian Information Commissioner (OAIC) of the
extension of time in accordance with our reporting obligations.
R G Casey Building John McEwen Cres Barton 0221
DFAT.GOV.AU
T
+61 2 6261 1111
@DFAT
On 13 December 2024, the department requested a 6-calendar day extension of time to
process your request (section 15AA of the FOI Act).
On 13 December 2024, you consented to the extension of time. The department
subsequently notified the Office of the Australian Information Commissioner (OAIC) of the
extension of time in accordance with our reporting obligations.
On 18 December 2024, the department applied for a 30-calendar day extension of time
from the Office of the Australian Information Commissioner (OAIC) to process your request
(section 15AB of the FOI Act) due to the complexity in completing searches across multiple
Embassies and High Commissions.
On 6 January 2025, the Office of the Australian Information Commissioner (OAIC) granted
the department a 30-calendar day extension of time under section 15AB of the FOI Act to
finalise processing of your request.
Authority
I am an officer authorised under section 23 of the FOI Act to make decisions in relation to
FOI requests.
Reasons
In making my decision I have taken into account:
• the terms of your request;
• the documents within the scope of your request;
• the FOI Act; and
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).
The reasons for my decision and for the application of exemptions under the FOI Act to the
document are set out below. Where I refer to sections of the FOI Act, these are available at
www.legislation.gov.au. Where I refer to parts of the FOI Guidelines, these are available at
OAIC | FOI Guidelines.
Damage to international relations (section 33(a)(i i) of the FOI Act)
Under section 33(a)(iii) of the FOI Act, a document is exempt if its disclosure would, or could
reasonably be expected to, cause damage to the international relations of the
Commonwealth.
The phrase international relations has been interpreted to mean the ability of the Australian
Government to maintain good working relations with other governments and international
organisations and to protect the flow of confidential information between them (FOI
Guidelines, paragraph 5.39). This applies to documents, the disclosure of which could
diminish the confidence which another country has in Australia as a reliable recipient of
confidential information, making that country or its agencies less wil ing to cooperate with
Australian agencies in future (FOI Guidelines, paragraph 5.42).
Furthermore, the expression damage could include intangible damage, including inhibiting
future negotiations between the Australian Government and a foreign government, or the
future flow of confidential information from a foreign government (FOI Guidelines,
paragraph 5.25).
I have had regard to the nature of the information, the circumstances in which it was
communicated, and the nature of Australia’s international relationship with the foreign
country (FOI Guidelines, paragraph 5.40). Based on these considerations, I consider that the
disclosure of the relevant material to which you seek access, would be reasonably likely to
cause damage to Australia’s foreign relationships.
For these reasons, I have decided that the information marked up in the documents is
exempt under section 33(a)(iii) of the FOI Act.
Material communicated in confidence (section 33(b) of the FOI Act)
Under section 33(b) of the FOI Act, a document is exempt if disclosure would divulge any
matter communicated in confidence to the Australian Government by or on behalf of a
foreign government, an authority of a foreign government or an international organisation.
Information is communicated in confidence by or on behalf of another government or
international organisation if it was communicated under an express or implied
understanding that the communication would be kept confidential (FOI Guidelines,
paragraph 5.46).
Paragraph 5.44 of the FOI Guidelines also provides that an understanding of confidentiality
need not be formal and may be inferred from the circumstances in which the
communications occurred.
For these reasons, I have decided that the information marked up in the documents is
exempt under section 33(b) of the FOI Act.
Substantial adverse effect on an agency’s proper and efficient conduct of operations
(section 47E(d) of the FOI Act)
Under section 47E(d) of the FOI Act, a document is conditional y exempt if disclosure would,
or could reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the department’s operations. A substantial adverse effect may be an
indirect effect (FOI Guidelines, paragraph 6.82).
The predicted effect must bear on the department’s proper and efficient operations, that is,
the department must be undertaking its operations in an expected manner (FOI Guidelines,
paragraph 6.115).
The documents in scope include content which relates to the department’s proper and
efficient management and conduct of diplomatic relations with foreign governments.
I am satisfied that the disclosure of this material within the scope of your request would
prejudice the flow of similar information to the department in the future and that the
department’s inability to obtain similar information in future would, or could reasonably be
expected to, have a substantial adverse effect on the department’s ability to undertake its
operational activities effectively and efficiently.
For these reasons, I have decided that the information marked up in the documents is
conditional y exempt under section 47E(d) of the FOI Act.
Unreasonable disclosure of personal information (section 47F(1) of the FOI Act)
Under section 47F(1) and 47E(d) of the FOI Act, a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about any
person.
Personal information refers to information or opinion about an identified individual, or an
individual who is reasonably identifiable:
• whether the information or opinion is true or not; and
• whether the information or opinion is recorded in a material form or not.
The test of unreasonableness implies a need to balance the public interest in the disclosure
of government-held information and the private interest in the privacy of individuals (FOI
Guidelines, paragraph 6.133).
I have had regard to the following matters in considering whether disclosure of some
information would involve an unreasonable disclosure of personal information:
• the extent to which the information is wel known;
• whether the individuals to who the information relates are known to be (or to have
been) associated with the matters in the documents;
• the availability of the information from publicly accessible sources; and
• any other matters that the agency considers relevant (section 47F(2) of the FOI Act).
Having regard to the nature of the information, and the implications for the identified
individuals if disclosed, I am satisfied that the disclosure of the personal information in this
case would be unreasonable. I am not satisfied that the information is well known or
publicly available, or that the disclosure of the relevant information would achieve a public
purpose.
For these reasons, I have decided that the information marked up in the documents is
conditional y exempt under section 47F(1) of the FOI Act.
As section 47F(1) of the FOI Act is a conditional exemption, I must grant you access to this
material unless providing access would, on balance, be contrary to the public interest
(section 11A(5) of the FOI Act).
In assessing the public interest, I have considered the FOI Guidelines referred to above and
the public interest factors listed in section 11B of the FOI Act as favouring access, including
whether granting access to the documents would:
• promote the objects of the FOI Act;
• inform debate on a matter of public importance; and
• allow an individual access to their own personal information.
I have also considered public interest factors against disclosure, including that disclosure
may reasonably be expected to:
• prejudice the department’ ability to obtain confidential information;
• prejudice the internal functions and process of the department; and
• prejudice an individual’s right to privacy.
On balance, I am of the view that the public interest is weighted against the disclosure of
the conditional y exempt material. In forming this view, I have not taken into account any of
the irrelevant factors specified in section 11B(4) of the FOI Act.
Irrelevant and excluded material (section 22(1)(a)(i ) of the FOI Act)
Some of the material excluded from the documents released to you is outside the scope or
could reasonably be regarded as irrelevant to your request (section 22(1)(a)(ii) of the FOI
Act).
In determining what is relevant to your request, I have taken into account the terms of your
request and the email which you received from the department on 13 November 2024, in
which you were invited to respond if you required the personal information of junior staff
from ministerial offices and government officials not in the Senior Executive Service (SES) or
equivalent, including their email addresses and contact numbers, together with al
signatures, mobile phone numbers, departmental inboxes and technical transmission details
including reference numbers. As you have not stated that you require this information, I
have decided to remove it from the documents being released to you.
You were also notified that any duplicate documents or duplicate emails within email chains
would be treated as outside the scope of your request. These documents, if any, have been
removed from the scope of your request.
Declassifying documents
The department will declassify a document before it is released to you. This process involves
redacting the original security classification on a document. If applicable, the redaction will
appear as a black rectangle at the top of the document. For further information regarding
sensitive and classified information please see the Protective Security Policy Framework
www.protectivesecurity.gov.au/system/files/2022-11/protective-security-guidance-for-
executives.pdf.
Review rights
Information about your review rights is set out in the
Attachment for your reference.
Contact
Should you have any queries regarding this matter please contact the Freedom of
Information Section by email (xxx@xxxx.xxx.xx).
Yours sincerely
Sean Starmer
Assistant Secretary
Department of Foreign Affairs and Trade
REVIEW AND COMPLAINT OPTIONS
Further information on applying for an IC
review is available on Office of the
If you consider the department made the
Australian Information Commissioners
wrong decision, please request a review.
(OAIC) website.i
If you are dissatisfied with the way your
Third party review rights
request was processed, please make a
complaint.
Third parties who were consulted by the
department are entitled to seek an
REVIEW
internal review of the department’s
How to seek a review of this decision
decision to grant access to a document.
Internal review by the department
Further information about third party
review rights is available on OAICs
You may apply for internal review of the
website.i
decision (section 54 of the FOI Act). The
internal review application must be made
You may also apply for an external review
within 30 calendar days from the day you
by the IC (section 54L of the FOI Act).To
receive this notice. Where possible, please
do this, you must make your application
attach reasons why you believe review of
within 30 calendar days from the day you
the decision is necessary.
receive this notice.
A new decision maker, who was not
COMPLAINT
involved in the initial decision, will review
How to make a complaint about process
your request, and make a new decision
within 30 calendar days.
Complaint to the department
Any request for internal review should be
If you wish to make a complaint about
directed via email to xxx@xxxx.xxx.xx or
how your FOI request was processed by
addressed to:
the department, we welcome you sending
an email with the details of your
Freedom of Information Section
complaint to the department in the first
Department of Foreign Affairs and
instance via xxx@xxxx.xxx.xx.
Trade
R G Casey Building
Complaint to the IC
John McEwen Crescent
Barton ACT 0221
You may also make a complaint to the IC
about the Departments actions in relation
External review by the Information
to this decision (section 70 of the FOI Act).
Commissioner (IC)
Further information about how to make a
You may apply to the Australian
complaint is available on OAICs website.i i
Information Commissioner to review this
decision (section 54L of the FOI Act). To
do this, you must contact the IC within 60
calendar days from the day you receive
this notice.
