Request timeframe
Your request was made on 29 November 2024.
On 10 December 2024 we requested an extension by agreement under section 15AA
of the FOI Act. We did not receive a response to this request.
This means that a decision on your request is due by 29 December 2024.
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 full access to 31 documents, and
• grant access in part to 13 documents
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
The following line areas of the OAIC conducted reasonable searches for documents
relevant to you request:
• Corporate Services
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s document holding system – Content Manager
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.
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Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 29 December 2024.
• the FOI Act, in particular including sections 3, 11, 11A, 15, 26, 47E and 47F 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 line areas of the OAIC in relation to your request
Section 47E(d) – Proper and efficient conduct of the OAIC’s operations
In accordance with section 47E(d) of the FOI Act, I have made a decision to redact
material 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 6.101 of the FOI Guidelines explains that:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is
explained in greater detail in Part 5. There must be more than merely an
assumption or al egation that damage may occur if the document were to be
released.
Additionally, at 6.103 the FOI Guidelines further explain:
An agency cannot merely assert that an effect would occur following disclosure.
The particulars of the predicted effect should be identified during the decision-
making process, including whether the effect could reasonably be expected to
occur. Where the conditional exemption is relied upon, the relevant particulars
and reasons should form part of the decision maker’s statement of reasons, if
they can be included without disclosing exempt material (s 26, see Part 3).
The material that I have decided is subject to conditional exemption comprises of
particulars related to open investigations, including specific funding allocations, that
may not be publicly known or may be subject to confidentiality orders.
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In undertaking an assessment of this conditional exemption, I have had regard to
relevant and recent 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 have
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.
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.
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under the
Australian Information Commissioner Act 2010 (Cth). The OAIC
comprises the Australian Information Commissioner , the Privacy Commissioner, the
FOI Commissioner and the staff of the OAIC. Relevant to this case, the OAIC is
responsible for investigating privacy complaints, made by members of the public.
I consider that the disclosure of the material would or could reasonably be expected
to have an adverse effect on this function for the following reasons:
Confidentiality
Disclosing this information could result in the breach of confidentiality orders
relating to one or more open privacy investigations.
Ongoing Matters
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Disclosing this information is likely to compromise the ability of the agency to
conduct investigations in their preliminary stages with the relevant tact and
objectivity. Additionally, disclosure is likely to cause operational difficulties for
investigators in matters where the respondents are not currently aware of the
number or nature of complaints against their organisations.
Specific funding apportionments.
There is material within the documents that detail expenditure related to ongoing
privacy investigations conducted by the OAIC. While I have decided to release the
total expenditure figures, I consider that disclosing information relating to specific
funding apportionments would have a substantial adverse effect on the proper and
efficient conduct of the operations of the OAIC. Disclosing this information is likely to
prejudice the ability of the Commissioner to confidential y engage with the
Department of Finance and other relevant stakeholders on matters relating to the
ongoing funding of specific privacy investigations.
Paragraph 6.122 of the FOI Guidelines provide:
The exemption may also apply to documents that relate to a complaint made
to an investigative body. The disclosure of this type of information could
reasonably affect the willingness of people to make complaints to the
investigative body, which would have a substantial adverse effect on the
proper and efficient conduct of the investigative body’s operations. [footnotes
omitted].
In the decision of
Knight v Commonwealth Ombudsman [2021] AATA 2504, the
Tribunal upheld the application of section 47E(d) to material relating to the Defence
Abuse Response Taskforce (DART) which was an administrative body established in
2012. The Ombudsman contended that release of certain material would have a
substantial adverse effect on its functions. In respect of the application of
section 47E(d) the Tribunal found as follows (emphasis added):
[40] I consider that the ongoing maintenance of confidentiality is critical to
the effective management of the defence abuse response program.
Individuals may be discouraged from participating in meaningful
engagement with the respondent if the documents sought were
disclosed. A failure to protect confidentiality would undermine the
reputation of, and the trust in, the respondent. The operations of the
respondent would be compromised.
I further note that the importance of protecting information collected during an
investigation process was upheld in the recent Information Commissioner (
IC)
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decision of
‘YU’ and Bureau of Meteorology (Freedom of Information) [2021] AICmr75
(
YU). Whilst the decision of YU was in relation to an investigation of under the
Public
Interest Disclosures Act 2013 (Cth), YU also highlighted other relevant case law that
confirms the important of agencies being able to undertake confidential
investigative processes.
I consider these decisions to be of relevance to the material subject to this FOI
request which comprises of confidential material obtained in the course of one of the
OAIC’s investigations. As part of its investigative function, it is vital y important that
investigations are able to be undertaken in a timely and efficient manner and that
participants ful y engage in this process which at times is often because of an
understanding of confidentiality.
I consider that release of material relating to an investigation part way through the
investigation itself would likely undermine or interfere with the outcome of the
investigation. I consider that release of this material would also likely mean that
individuals are less included to fully engage with the OAIC and its investigative
functions.
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.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
Public interest conditional exemptions--personal privacy (section 47F)
In accordance with section 47F of the FOI Act, I have made a decision to redact
material on the basis that disclosure would constitute an unreasonable disclosure of
personal information.
A document is conditionally exempt under section 47F(1) of the FOI Act where
disclosure would involve the unreasonable disclosure of personal information of any
person, including a deceased person. This exemption is intended to protect the
personal privacy of individuals.
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Section 4 of the FOI Act provides that the definition of personal information in the
Privacy Act 1988 (Cth) also applies to the FOI Act. The term personal information is
defined in section 6 of the Privacy Act to be:
… 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;
(b)
whether the information or opinion is recorded in a material form or
not.
The documents contain mobile phone numbers of individual OAIC employees, as
wel as personal information of individuals outside of the OAIC.
I am satisfied that this material meets the definition of personal information because
the material relates closely to the personal matters of an individual and disclosure of
this information would reasonably identify that individual.
In particular, the release of OAIC employee mobile phone numbers has the potential
to compromise the individual’s privacy rights outside of their role at the OAIC and
could increase the likelihood of undue contact and/or harassment in their personal
lives. OAIC staff report using their mobile phones for both work and personal
purposes, and typically will only use their mobile phone numbers for work purposes
when contacting other OAIC staff, and not for contacting individuals outside of the
agency. I consider this information distinct from OAIC work telephone numbers,
which I have decided to release.
I have decided to remove personal information of individuals outside of the OAIC.
The personal information contained in the documents could reasonably be used to
identify the individual, as well as associate the individual with one or more OAIC
matters which may not be known to the public and may not be in the interest of the
individual to disclose. I have made a decision to release the names and contact
information of persons that are otherwise publicly available.
In determining whether disclosure of other personal information in the documents
would involve an unreasonable disclosure of personal information, the FOI
Guidelines provide the following considerations at paragraph 6.140:
• the extent to which the information is well known
• whether the person to whom the information relates is known to be
associated with the matters in the document
• the availability of the information from publicly accessible sources
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• any other matters the agency or Minister considers relevant.
The FOI Guidelines further describes the key factors for determining whether
disclosure is unreasonable at paragraph 6.143:
•
the author of the document is identifiable
•
the documents contain third party personal information
•
release of the documents would cause stress on the third party
•
no public purpose would be achieved through release.
The FOI Guidelines explain at paragraph 6.138 that the test of ‘unreasonableness’ in
section 47F ‘implies a need to balance the public interest in disclosure of
government-held information and the private interest in the privacy of individuals.
Consistent with
FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines at paragraph 6.143 explain that other relevant factors include:
•
the nature, age and current relevance of the information
•
any detriment that disclosure may cause to the person to whom the
information relates
•
any opposition to disclosure expressed or likely to be held by that person
•
the circumstances of an agency’s collection and use of the information
•
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act
•
any submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or
likely use or dissemination of the information, and
•
whether disclosure of the information might advance the public interest in
government transparency and integrity
Inconsideration of these factors and the material contained within the documents, I
am satisfied that the release of this personal information would be unreasonable
because the information is personal in nature, and relevant to current working
environment of the OAIC. I consider that disclosure would be sufficiently detrimental
to OAIC employees by publicising their contact information that was made available
internally for instances requiring urgent contact. I also have regard to your initial
request, which provides that disclosure of personal information is not of particular
interest or value in this instance.
I am satisfied that the personal information relating to individuals outside of the
OAIC is not public information and is not well known. I am also satisfied that the
individuals to whom the information relates is not known to be associated with the
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matters dealt with in the document. If this information were disclosed publicly, it
would unreasonably impact on the privacy of the individual.
The recent decision of
Knight v Commonwealth Ombudsman [2021] AATA 2504
discusses personal information col ected in the course of a complaint or
investigation. At paragraph [32] the Tribunal found that:
In the circumstances where the information is highly sensitive and has been
disclosed on a confidential basis, it would be unreasonable to disclose that
information to the applicant.
I consider the collection of the material contained in this document to be of a similar
nature, and that it would be unreasonable to disclose this information.
For the reasons given above, I consider the relevant documents identified in the
schedule are conditionally exempt under section 47F of the FOI Act.
As section 47F is a conditional exemption, I am also required to consider the
application of a public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
Application of the public interest test – (section 11A and 11B)
As provided above, I have considered that material within the documents is subject
to conditional exemption under section 47E(d) and 47F of the Act.
Section 11A(5) provides that where documents are considered to be conditionally
exempt, an agency
must give the person access to those documents 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, the FOI Guidelines provide the following guidance:
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:
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•
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
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
smal 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 conditional y 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.
The FOI Act sets out four factors favouring access, which must be considered if
relevant. Of these factors, we consider the fol owing to be relevant:
• promote the objects of the FOI Act,
• inform debate on a matter of public importance,
• promote effective oversight of public expenditure.
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 follow factors do not favour disclosure:
• Disclosure would have an adverse effect on the OAIC’s proper and efficient
operations relating to the investigation of privacy complaints, and specifically
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in relation to the disclosure of individual complaints that may have not yet
been appropriately verified, or where the respondent may not yet have been
informed of their existence. I consider the public interest is better served by
ensuring that OAIC investigations are not unduly compromised by the
untimely disclosure of sensitive information. I understand that these
investigations can attract significant public interest, and providing access to
information would assist in informing public debate, however I consider that
this factor is more appropriately addressed by the provision of timely, and
fully informed media releases on the subject matter.
• Disclosure of the personal information contained in the documents could
reasonably be expected to interfere with the privacy rights of individuals
outside of the OAIC, particularly where personal information was obtained on
a confidential basis. I consider it is in the public interest to maintain the
confidentiality of individuals who engage with the OAIC on a voluntary basis
to ensure ongoing relations with the community and the Agency. Similarly, I
consider that disclosure of OAIC employee mobile phone numbers is
unreasonable in the circumstances. I consider that there is no identifiable
public benefit in their release, and on the contrary, there is public interest in
ensuring that public servants are not subject to unwarranted
communications or harassment that could reasonably interfere with their
ability to conduct their duties efficiently.
• I consider that there is public interest in the transparency of government
expenditure, however I consider that disclosing information relating to
specific funding apportionments for ongoing investigations is contrary to the
public interest, as it may prejudice the agency’s ability to confidentiality and
impartially engage with relevant stakeholders including the Department of
Finance. I consider the public interest in promoting effective oversight of
public expenditure is sufficiently addressed by releasing material detailing
total expenditure, without identifying specific apportionments.
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.
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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.
Release of document
The documents are enclosed for release.
The documents are identified in the attached schedule of documents.
Please see the following page for information about your review rights.
Yours sincerely,
Lachlan Smith-Marks
Governance, Risk and Compliance Officer (FOI)
24 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 t
o 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 Reviews 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 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://webform.oaic.gov.au/prod?entitytype=ICReview&layoutcode=ICReviewWF
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or by email t
o 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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