I note that in your original request, you also stated that you did not need “personal
information or business information”.
On 24 December 2024, the decision maker advised you of their decision. Of the 44
documents identified as fal ing within the scope of your request, the decision maker:
• granted ful access to 31 documents, and
• granted access in part to 13 documents.
This decision was made subject to the fol owing exemption provisions of the FOI Act:
• Section 47E(d) of the FOI Act – proper and efficient conduct of the OAIC’s
operations, and
• Section 47F of the FOI Act – personal privacy.
Your internal review request
On 1 January 2025, you wrote to the OAIC and stated:
“….I am writing to request an internal review of Office of the Australian
Information Commissioner's handling of my FOI request 'Commissioner briefs
for senate estimates November 2024'. A ful history of my FOI request and al
correspondence is available on the Internet at this address:
https://www.righttoknow.org.au/request/commissioner briefs for senate e”
On 13 January 2025, I emailed you and requested that you confirm whether you were
seeking an internal review of the decision that was made in FOIREQ24/00623 on 24
December 2024, or whether you wanted to lodge a complaint about the handling of
your FOI request. I asked that you respond by COB 16 January 2025 and clarify your
request and, in the event that you were seeking an internal review, you state the
grounds upon which you considered that the original decision should be reviewed.
We did not receive a response to this request. Therefore, I have proceeded on the
basis that you wish to request an internal review of the decision provided to you on
24 December 2024. A decision on your internal review request is due on 31 January
2025.
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 note that you have not provided any reasons as to why the original decision was
defective, or not made in accordance with the law.
Subject to the fol owing provisions of the FOI Act, I have made a decision to affirm
the decision of 24 December 2024.
Searches Undertaken
The FOI Act requires that al reasonable steps have been taken to locate documents
within scope of an FOI request.
As part of the internal review process, I reviewed the searches performed in the
course of processing your original request.
The Corporate Services team at the OAIC was consulted in relation to your request
and conducted searches for documents relevant to your request. This included
searching the OAIC’s document holding system – Content Manager, in relation to the
documents you were seeking.
Having 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 identified.
I note that the scope of your FOI request was narrow, and the relevant documents
were al located together on the document management system given their content
and the purpose of their creation.
The relevant officer also consulted other line areas in the agency who were
responsible for the creation of the relevant documents within the scope of your
request. I am satisfied that this was a reasonable step to take when responding to
your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the fol owing:
• your original FOI request dated 29 November 2024, including your note that
you did not wish to receive personal or business information
• the original FOI decision dated 24 December 2024
• your internal review request dated 1 January 2025
• the FOI Act, in particular sections 3, 11, 11A, 15, 26, 47E and 47F of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under s
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 and their
responses.
Section 47E(d) of the FOI Act – proper and efficient conduct of the OAIC’s
operations
Under s 47E(d) of the FOI Act, information can be exempted where the 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 be
reasonably expected to”:
6.14 The test requires the decision maker to assess the likelihood of the
predicted or forecasted 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, al egation, possibility, or chance or 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 material that was exempted in the original decision dated 24 December 2024
related to open investigations at the OAIC, as well as specific al ocations of funding
that are not otherwise publicly available and may be subject to confidentiality
orders.
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 original decision cited three reasons why this conditional exemption
would apply in the circumstances: ongoing matters, confidentiality and specific
funding apportionments. I will deal with each of these in turn.
Confidentiality and ongoing matters
The original decision stated that disclosure of the relevant information could result
in a breach of confidentiality orders relating to one or more open investigations and
that disclosing the information may compromise the OAIC’s ability to conduct
investigations at the preliminary stages with relevant tact and objectivity.
Paragraph 6.122 of the FOI Guidelines provide that this 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 wil ingness 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].”
Where a complaint is made to the OAIC, it is general y made on the understanding
that the facts of that investigation will remain confidential. This understanding
means that the OAIC can investigate in a ful and frank manner and ensures that
agencies provide information which assists the OAIC to perform its role and function
as an investigative body and regulator.
The OAIC takes regulatory action to encourage and support compliance by regulated
entities and to address high-risk matters with the greatest potential of harm. The
agency’s preferred regulatory approach is to work with entities to facilitate voluntary
compliance with privacy and information access legislation. This includes engaging
with regulated entities to provide guidance, promote best practice compliance, and
identify and seek to address privacy or information access concerns as they arise.
Engagement with regulated entities and the investigative work of the OAIC is
essential for addressing serious and systemic issues within the agency’s regulatory
remit.
It is my view that if this information were to be released and made publicly available,
individuals and entities would be less willing to provide ful and frank disclosure to
the OAIC in future investigations, therefore undermining the effectiveness of the
Office, and its ability to perform its statutory functions under the
Privacy Act 1988
(Privacy Act)
, FOI Act and
Australian Information Commissioner Act 2010.
Releasing information relating to an ongoing investigation may have the effect of
prejudicing the outcome of that investigation and compromising the integrity of the
investigation where it is still underway.
Further, releasing this information might breach confidentiality orders in place with
the relevant agencies. Releasing the information would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient conduct of
the OAIC’s operations if entities do not provide ful and frank disclosure to the
agency on the basis of such agreements moving forward.
Specific funding apportionments
As to specific funding apportionments, the original FOI decision stated that there is
material within the documents that detail expenditure related to ongoing privacy
investigations conducted by the OAIC. The decision maker stated that 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 al ocation of funding for specific privacy investigations.
I consider that the Commissioner’s ability to engage on how funding is al ocated to
specific matters and through the course of those investigations could be
compromised if this information is released. I consider that release of this
information would therefore have a substantial adverse effect on the proper and
efficient conduct of the operations of the OAIC.
For these reasons, I affirm the decision to find the relevant materials to be
conditional y exempt under s 47E(d) of the FOI Act.
This conditional exemption requires me to also consider the public interest test. I
have dealt with this at the end of the decision after I have discussed other relevant
conditional exemptions.
Section 47F of the FOI Act – personal privacy
The decision maker also decided to exempt material from the relevant documents
on the basis that disclosure would constitute an unreasonable disclosure of personal
information in accordance with s 47F of the FOI Act.
This decision was made on the basis that personal information, as defined in s 6 of
the Privacy Act, is included in the documents in the form of mobile phone numbers of
OAIC employees, as well as personal information relating to those outside the OAIC.
Whilst the OAIC does not general y exempt public servant names at the OAIC and
work phone numbers, personal mobile phone numbers relate to the personal
matters of an individual. Releasing this information has the potential to interfere
with their personal privacy. This exemption is intended to protect the personal
privacy of individuals.
I also note that personal information of those who do not work at the OAIC would in
my view also constitute an unreasonable disclosure of personal information in
accordance with s 47F of the FOI Act.
The decision maker advised you that where the names and contact information of
people is otherwise publicly available, it has not been exempted. This is consistent
with the FOI Guidelines which state at paragraph 6.140 that a decision maker should
consider the extent to which information is well known is determining whether
disclosure would be unreasonable.
The FOI Guidelines state that there needs to be a balancing exercise conducted
between the public interest in disclosing government-held information and the
private interest in maintaining the privacy of an individual.
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I am satisfied that the original decision that the weight of the privacy of the
individuals in this case, outweighs the public interest in disclosing this information,
is correct.
In reviewing the matter, I am satisfied that the relevant material is not public
information and is not wel known. I am also satisfied that the individuals to whom
the information relates is not known to be associated with the matters dealt with in
the documents and in the case of information related to OAIC staff members, does
not relate to the individual’s work, or role at the OAIC. I am of the view that disclosing
this information would impact the individual’s personal privacy and I have not
identified how the release of this information would advance the public interest in
government transparency and integrity.
I also note your own request that you did not need “personal information or business
information”, and I have given weight to this in making my decision.
For these reasons, I affirm the decision to find the relevant materials to be
conditional y exempt under s 47F of the FOI Act.
In accordance with the obligation under the FOI Act, I am also required to consider
the application of the public interest test in relation to the above conditional
exemptions. I have considered the application of this test for both conditional
exemptions below.
Application of the public interest test (ss 11A and 11B)
The original decision maker considered that material within the relevant documents
was subject to conditional exemption under sections 47E(d) and 47F of the Act.
Section 11A(5) provides that where documents are considered to be conditional y
exempt, an agency must give the person access to those documents unless the FOI
decision maker determines that such access would, on balance, be contrary to the
public interest.
This means that, in deciding whether this decision was correct, I must balance
factors for and against disclosure in light of the public interest.
1 FOI Guidelines paragraph 6.138.
The FOI Act sets out four factors favouring access, which must be considered if
relevant. I agree that the fol owing factors are relevant to this decision:
• promote the objects of the FOI Act
• inform debate on a matter of public importance, and
• promote effective oversight of public expenditure.
Section 11B(4) of the FOI Act provides factors which are not to be taken into account
for which I have had regard to. Section 11B does not further prescribe the factors
against disclosure to be considered.
I have considered the original decision, and the reasons provided in light of my own
review of the documents. In my view, the fol owing factors mean that not disclosing
the relevant information is preferrable in the circumstances, and is not outweighed
by the public interest in disclosing the information:
• Disclosure would have an adverse effect on the OAIC’s proper and efficient
operations when investigating privacy complaints. There is public interest in
ensuring the OAIC can effectively perform its function and role by
investigating and resolving privacy complaints of Australians. It would not be
in the public interest for this process to be compromised due to entities or
individuals being unwilling to provide ful and frank disclosure to aid
investigations, in the fear that such information would be further disclosed. It
is open to the OAIC to make information about an investigation publicly
available at the appropriate time where it is considered to serve the public
interest and not prejudice an investigation.
• Disclosure of personal information of OAIC staff could reasonably be expected
to interfere with the privacy rights of those individuals outside their work
responsibilities at the OAIC. In particular, the release of OAIC staff mobile
numbers is not in the public interest as it does not relate to their role as a
public servant. Further, they are stil contactable using their work contact
details where a matter relates to their official OAIC role. In my view, release of
this information could result in harassment, or otherwise unsolicited contact,
and interfere with their personal privacy. The same argument applies to the
personal information of individuals outside the OAIC.
• Disclosure of specific funding apportionments for ongoing investigations is
contrary to the public interest. The OAIC needs to be able to freely engage
with relevant departments including the Department of Finance regarding
specific apportionments and this may be compromised if there is an
expectation that details of such discussions and decisions are released.
Further, the total expenditure has been released in order to add to debate
about public expenditure.
On balance, I agree that the public interest factors against disclosure are in this
instance, more persuasive than the public interest factors favouring disclosure. I
affirm the decision that it is in the public interest to withhold the exempt material.
Disclosure log determination
Section 11C of the FOI Act requires agencies to publish online documents 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.
The original decision maker made a decision to publish the documents subject to
your request on the OAIC’s disclosure log.
The documents were published on the OAIC’s disclosure log on 7 January 2025.
Release of documents
The documents and my decision on internal review are identified in the attached
schedule of documents.
Given that I have not varied the original decision, I have not provided the relevant
documents to you again, but please let the OAIC know if you require another copy of
this material.
Please see the fol owing page for information about your review rights.
Yours sincerely,
Penny Ryder
Director, Governance, Risk and Compliance
Office of the Australian Information Commissioner
31 January 2025
If you disagree with my decision
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Reviews Tribunal (ART).
Right to seek review of this decision by the Information Commissioner (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.
It is the Information Commissioner's view that it will usual y 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.
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://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
10
Alternatively, you can post your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or apply by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
