24 February 2025
Lachlan Patton
Our ref: FOI2024-2412-LP
Via Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Lachlan Patton
Freedom of Information (FOI) request - Decision
1.
Your request
On 24 December 2024 you submitted an FOI request under the
Freedom of Information Act 1982
(Cth) (
FOI Act) to Housing Australia seeking:
any related documentation to the implementation of the project management software
monday.com within the organisation.
These could include any form of documentation such as:
- Solution Design Document(s)
- Data Flow Diagram(s)
- Requirements List(s)
- Signed Statement of Work(s)
2.
Decision maker
I am an authorised decision maker under section 23 of the FOI Act to make decisions in respect
of requests to access documents. This letter sets out my decision and reasons for the decision in
relation to your application.
3.
Relevant material
In reaching my decision, I referred to the following:
• the terms of your request;
• the content of the documents in issue;
• the FOI Act;
• Guidelines published by the Office of the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines); and
• relevant case law.
4.
Documents in scope of request
Housing Australia has identified three documents relevant to your request, being:
•
Document 1: a document dated January 2024, titled "Business Requirements – Project
Management Process and System Implementation";
•
Document 2: a document titled "Addendum to Business Requirements – Project
Management Process and System Implementation";
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
•
Document 3: a Service Agreement dated 11 March 2024, between Product Rocket Pty
Ltd and Housing Australia.
5.
Consultation with third parties
Before making this Decision, I consulted with two third parties under section 27 of the FOI Act.
• Accenture, which was consulted in respect of Document 1; and
• Product Rocket Pty Ltd, which was consulted in respect of Document 3.
6.
Decision
I have decided to:
• release
Document 2 in full; and
• release
Documents 1 and
3 in part.
7.
Exemptions claimed
Section 7 Commercial Activities - exempt from the operation of the FOI Act
Section 7(2) of the FOI Act provides “
the bodies and Departments specified in Part II of Schedule
2 are exempt from the operation of the Act in relation to the documents referred to in that Schedule
in relation to them.” Part II of Schedule 2 relevantly includes “
Housing Australia, in relation to
documents in respect of its commercial activities”.
Definition of commercial activities
Commercial activities is defined in subsection 7(3) of the FOI Act to mean:
(a)
activities carried on by an agency on a commercial basis in competition with
persons other than governments or authorities of governments; or
(b)
activities, carried on by an agency, that may be reasonably be expected in
the foreseeable future to be carried on by the agency on a commercial basis
in competition with persons other than governments or authorities of
governments.
Documents "in respect of" commercial activities is defined in subsection 7(4) of the FOI Act to
mean:
documents received or brought into existence in the course of, or for the purposes of,
the carrying on of those activities.
In
Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40, the
Ful Federal Court affirmed the Administrative Appeals Tribunal’s reasoning in finding that
documents were exempt under s 7(2) because they were documents in respect of CSIRO’s
commercial activities (I note that, like Housing Australia, CSIRO is specified at Part II of Schedule
2 of the FOI Act as exempt from the operation of the FOI Act in relation to documents in respect
of its commercial activities).
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
Application of section 7 to the documents relevant to your request
I have carefully considered the documents which are the subject of your request and have decided
that parts of pages 20 and 25 of Document 1 are excluded under section 7(2) as they relate to
Housing Australia’s commercial activities and were created for the purposes of such activities.
Housing Australia’s funding programs are implemented in accordance with the
Housing Australia
Investment Mandate Direction 2018 and involve engagement with a range of commercial
counterparties - including government entities, private and institutional investors and community
housing providers - with a view to increasing the availability of social and affordable housing
through a range of measures, including structured financing transactions entered into on arms’
length commercial terms.
Parts of pages 20 and 25 of Document 1 contain details about specific funding programs that
Housing Australia engages in and contain financial and other information that is commercial in
confidence in respect of those programs, such as projected costs and timeframes in respect of
specific programs.
Parts of pages 8-11, 14-24 and 26-29 of Document 1 contain details about the methodology
employed by Housing Australia in assessing and prioritising projects. This information is in respect
of Housing Australia's commercial activities and was brought into existence for the purpose of
Housing Australia's assessment and management of commercial programs and projects.
I am satisfied that those parts of Document 1 are in respect of Housing Australia's commercial
activities, and as such are excluded from the operation of the FOI Act under s 7(2).
Section 47: commercially valuable information
Section 47(1) of the FOI Act provides:
A document is an exempt document if its disclosure under this Act would disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed.
As noted above, I consulted with Accenture under s 27 of the FOI Act in relation to Document 1.
Accenture submitted that particular parts of pages 9, 11-13, 20, 25 and 31-34 are exempt under
s 47(1)(b) of the FOI Act.
I accept that those parts of Document 1 that Accenture identified in their submission have
commercial value to Accenture. The information shows how Accenture provides particular services
as a commercial entity and the methodologies and models it uses in providing those services. I
also consider that the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed, in circumstances where it would
disclose to Accenture's competitors in the market the manner in which Accenture provides its
services and the particular methodologies it uses.
I am satisfied that those parts of Document 1 identified by Accenture are exempt from disclosure
under s 47(1)(b) of the FOI Act.
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
In Document 3, I also consider that the fees charged by Product Rocket Pty Ltd as noted in the
Services Agreement to be commercially valuable information, being the fees charged by Product
Rocket for its consultancy services within a competitive market. I am satisfied that the commercial
value of the information would be, or could reasonably be expected to be, destroyed or diminished
if it were disclosed, in circumstances where it would disclose to Product Rocket's competitors in
the market the fees that it charges a particular client, thereby diminishing its ability to differentiate
from its competitors when competing for work.
Accordingly, I am satisfied that the fees noted in Document 3 at pages 18-19 are exempt under s
47(1)(b) of the FOI Act.
Section 22: Irrelevant information: individual's names in the documents
I have also removed from the documents the names of individuals under s 22 of the FOI Act as
irrelevant information to your request.
8.
Rights of Review
In accordance with section 26(1)(c) of the FOI Act, a statement setting out your rights of review
under the Act is at
Attachment A.
Yours sincerely
Nicola Jacobs
Chief Legal Officer and Company Secretary
Housing Australia
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
Attachment A
Review rights
You are entitled to seek review of this decision.
Internal Review
Firstly, under section 54 of the FOI Act, you may apply for an internal review of the decision. Your
application must be made by whichever date is the later between:
• 30 days of you receiving this notice; or
• 15 days of you receiving the documents to which you have been granted access.
An internal review will be conducted by a different officer from the original decision-maker. No
particular form is required to apply for review although it will assist your case to set out in the
application the grounds on which you believe that the original decision should be overturned. An
application for a review of the decision should be addressed to:
FOI Coordinator
xxxxxxx@xxxxxxxxxxxxxxxx.xxx.xx
1800 549 767
If you choose to seek an internal review, you will subsequently have a right to apply to the
Australian Information Commissioner for a review of the internal review decision.
External review by the Australian Information Commissioner
Alternatively, under section 54L of the FOI Act, you may seek review of this decision by the
Australian Information Commissioner without first going to internal review. Your application must
be made within 60 days of you receiving this notice.
The Information Commissioner is an independent office holder who may review decisions of
agencies and Ministers under the FOI Act. More information is available on the Information
Commissioner's websit
e www.oaic.gov.au. You can contact the Information Commissioner to request a review of a decision online or by writing
to the Information Commissioner at:
GPO Box 5288
Sydney NSW 2001
Complaints to Ombudsman or Information Commissioner
If you are unhappy with the way we have handled your FOI request, please let us know what we
could have done better. We may be able to rectify the problem. If you are not satisfied with our
response, you can make a complaint to the Australian Information Commissioner.
You may complain to either the Commonwealth Ombudsman or the Information Commissioner
about action taken by Housing Australia in relation to the application. The Ombudsman will consult
with the Information Commissioner before investigating a complaint about the handling of an FOI
request.
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
Your enquiries to the Ombudsman can be directed to:
Phone 1300 362 072 (local call charge)
The enquiry form on the Commonwealth Ombudsman website
For complaints, the complaint form on the Commonwealth Ombudsman website
Your enquiries to the Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
The enquiry form on the OAIC website
For complaints, the complaint form in relation to FOIs on the OAIC website
The request should be in writing and should set out the grounds on which it is considered that the
action taken in relation to the request should be investigated and identify Housing Australia as the
relevant agency.
Level 23
420 George Street
Sydney NSW 2000
housingaustralia.gov.au
ABN 22 498 714 570
L\35
6869795.1
