As we did not hear from you by this date, we assumed you did not object to
proceeding with your FOI decision on the basis of the 2 documents identified:
• OAIC Style Guide – reviewed in June 2022
• OAIC Brand Guidelines – January 2021.
Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests on behalf of the OAIC.
Subject to the following provisions of the FOI Act, I have made a decision to grant
access in part to 2 documents.
Searches undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within the scope of an FOI request.
In response to your request, the following line areas of the OAIC conducted reasonable
searches for documents relevant to you request:
• The Communications Team.
Searches were conducted across the OAIC’s various document storage systems
including the OAIC’s document holding system – Content Manager and the OAIC’s
intranet page.
The following search terms were used when undertaking electronic records searches:
• Style Guide, brand guide, OAIC branding, OAIC style guide and OAIC brand
guide.
Having consulted with the relevant line area 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 and that all relevant documents have
been found.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
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• your FOI request dated 19 November 2024 and subsequent revised scope dated
10 December 2024
• the FOI Act, in particular sections 3, 11, 11A, 15, 26 and 47E(d) 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)
• consultation with the line area of the OAIC in relation to your request.
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 to the request.
I have determined that FOI Act exemptions apply to one page of this material.
Accordingly the exempt material has been removed in accordance with s 22(1)(a)(i) of
the FOI Act.
I have prepared an edited copy of the document which removes this material in
accordance with s 22 of the FOI Act, and otherwise grants you access to the material in
the scope of your request.
The material which I have decided is subject to exemption comprises of OAIC login
username and password details.
I consider the documents within scope of this request are exempt in accordance with
section 47E(d) of the FOI Act, on the basis that disclosure would or could reasonably
be expected to have a substantial adverse effect on the proper and efficient conduct of
the OAIC’s operations.
Paragraph 6.14-6.16 of the FOI Guidelines explains that 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.
6.16 The mere risk, allegation, possibility, or chance of prejudice does not qualify as a
reasonable expectation. There must be, based on reasonable grounds, at least a real,
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significant or material possibility of prejudice, if they can be included without disclosing
exempt material (s 26, see Part 3).
As explained above, the material which I have decided is subject to conditional
exemption comprises of:
• OAIC username and password details.
In undertaking an assessment of this conditional exemption, I have had regard to
relevant Administrative Review Tribunal (ART) (formerly the AAT) and Information
Commissioner decisions including
Seven Network Operations Limited and Australian
Human Rights Commission [2021] AICmr 66,
Paul Farrel and Department of Home
Affairs (Freedom of information) (No 2) [2022] AICmr 49 (8 April 2022) and
Knight v
Commonwealth Ombudsman [2021] AATA 2504.
In
Seven Network Operations Limited and Australian Human Rights Commission [2021]
AICmr 66, a document was found not to be conditionally exempt under section 47E(d)
of the FOI Act in circumstances where the agency argued that disclosure of the
relevant material would or could reasonably be expected to result in stakeholders
declining to work with the Australian Human Rights Commission.
The decision found that there was not sufficient evidence to support the conclusion
that such harm would occur. Similarly in
Paul Farrel and Department of Home Affairs
(Freedom of information) (No 2) [2022] AICmr 49 (8 April 2022), whilst the material
found within the documents related to the Department of Home Affairs’ operations,
the Commissioner determined that the Department had failed to provide sufficient
evidence as to why disclosure would have a substantial and adverse effect on its
operations.
These decisions further reinforce the position that this provision requires a high
threshold as to the substantial and adverse effect that disclosure would have on an
agency’s operations to which I have turned my mind.
In order to determine whether disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the operations
of the OAIC, I have taken into consideration the functions and activities of the OAIC.
I consider that the disclosure of the material described in the document would or
could reasonably be expected to have an adverse effect on these regulatory and other
corporate functions of the agency, as release would enable unscrupulous actors to
access and compromise the OAIC’s access to an external resource. This could
negatively impact the OAIC’s ability to manage corporate branding and images.
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Accordingly, we consider that the disclosure of the material would or could reasonably
be expected to have an adverse effect on the OAIC’s ability to manage its corporate
affairs.
In my view, these adverse effects from the disclosure of the relevant documents at this
time are more than merely an assumption and would impact upon the proper and
efficiency operations of the OAIC.
For the reasons given above, I consider the relevant documents 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.
Application of the public interest test – (section 11A and 11B)
As provided above, I have considered that material within the documents is subject to
a conditional exemption under section 47E(d) of the FOI Act.
Section 11A(5) provides that where a document is considered to be conditionally
exempt, an agency
must give the person access to that document unless the FOI
decision maker would, on balance, would be contrary to the public interest.
This means that I must balance factors for and against disclosure in light of the public
interest.
In Chapter 6 of the FOI Guidelines, the following guidance is noted:
6.4
There is a single public interest test to apply to each of the conditional
exemptions. This public interest test is defined to include certain factors that
must be taken into account where relevant, and some factors which must not
be taken into account.
6.5
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 public interest
•
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 al members of the
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public, or a substantial section of the public.
6.6
It is not necessary for a matter to be in the interest of the public as a whole. It
may be sufficient that the matter is in the interest of a section of the public
bounded by geography or another characteristic that depends on the
particular situation. A matter of public interest or benefit to an individual or
small group of people may also be a matter of general public interest.
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, at paragraph 133 of
the Decision, Deputy President Forgie explained that:
… the time at which I make my decision for section 11A(5) requires access to be given to
a conditionally exempt document ‘at a particular time’ unless doing so is, on balance,
contrary to the public interest. Where the balance lies may vary from time to time for it is
affected not only by factors peculiar to the particular information in the documents but
by factors external to them.
Factors against access
The FOI Act sets out four factors favouring access, which must be considered if
relevant. Of these factors, we consider the following to be relevant:
• promote the objects of the FOI Act
• inform debate on a matter of public importance.
In addition to these relevant factors favouring disclosure, I have also considered that
the following factors in favour of disclosure apply:
• disclosure would better inform a matter of public importance or debate.
Section 11B(4) of the FOI Act provides factors which are
not to be taken into account in
which I have had regard to.
Section 11B does not further prescribe the factors against disclosure to be considered.
In considering the documents subject to this request, I consider that the following
factors do not favour disclosure:
• disclosure would have an adverse effect on the OAIC’s proper and efficient
operations relating to its corporate and regulatory functions
• disclosure would have an adverse effect on the OAIC’s proper and efficient
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operations relating to the timely release and publication of media material
and important regulatory reports.
Releasing the exempt material would allow unauthorised actors to use the OAIC’s
subscription to an external resource. Misuse of official government resources may
constitute fraud against the Commonwealth.
We consider this to be adverse to the public interest.
In balancing these factors for and against, I have placed greater weight on factors in
relation to protecting the OAIC’s ability to manage the proper and efficient publication
of future materials.
On balance, I consider the public interest factors against disclosure to be more
persuasive than the public interest factors favouring disclosure. I am satisfied that the
public interest is to withhold the exempt material.
Balancing factors for and against disclosure
In balancing these factors for and against, I have given significant weight to the
importance of allowing a person to access information which would enhance the
scrutiny of government decision making and inform debate on a matter of public
importance.
I consider that in relation to the exempt material, the disclosure would not contribute
to providing you access to material that would either enhance the scrutiny of
government decision making nor would it inform this debate. In relation to this
material, I consider the need to protect OAIC’s ability to conduct its regulatory and
corporate operations in an efficient and effect manner, outweighs the factors for
disclosure.
As noted above, I have considered that material within the documents is subject
to the conditional exemption under section 47E(d) of the FOI Act.
Disclosure log decision
Section 11C of the FOI Act requires the OAIC to publish documents released under the
FOI Act on the OAIC’s disclosure log 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 documents
The documents are enclosed for release. Please see the following page for information
about your review rights.
Yours sincerely
Karen Tulloch
Assistant Director
Office of the Australian Information Commissioner
19 December 2024
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There is
no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that my
decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further 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 60 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.
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Section 57A of the FOI Act provides that, before you can apply to the AAT 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 1
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or by email to xxxxx@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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