Our reference: FOI 21-052
OAIC reference: MR21/00069
To whom it may concern
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
To whom it may concern
Revised Decision on access - Freedom of Information Request FOI 21-052
Information Commissioner Review MR21/00069
On 2 February 2022, the Office of the Australian Information Commissioner (
OAIC) notified the Department
of Infrastructure, Transport, Regional Development, Communications and the Arts (
the Department) that
you had applied for Information Commissioner review (
IC Review) of a decision made by the Department
under the
Freedom of Information Act 1982 (
FOI Act) and issued to you on the FOI Applicant on 30 November
2020.
The Department has been assisting the OAIC with this review since their initial contact with us on 2 February
2022.
Most recently, on 2 August 2024, the OAIC directed the Department, under sections 55T and 55(2)(e)(ii) of
the FOI Act:
• By 26 August 2024, provide a marked up, unredacted copy of the document at issue to the OAIC in
an electronic format, where material claimed to be exempt is highlighted with reference to the
exemptions applied.
• To provide information as outlined at Part 10.100 of the Guidelines issued under s 93A of the FOI
Act that relate to this review.
• To take all reasonable steps to notify the affected third party (s 54P(2)). And provide a copy of this
notice to the IC as soon as practicable (s 54P(3)).
• To review the FOI decision in light of the passage of time and consider whether any further
information can be released to the applicant.
• Provide submissions in support of the FOI decision directly to the applicant and to the OAIC as
outlined below.
GPO Box 594, Canberra ACT 2601, Australia
1800 075 001 infrastructure.gov.au | arts.gov.au
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1
FOI request
1.1
On 24 September 2020, you requested access to:
[The] following for Call of Duty Black Ops Cold War:
Classifier note;
Decision document;
Application for classification and its supporting material;
Screenshot showing information from the database as seen by the Classification
Board;
Email and its attachment to and/or from applicant, Classification Board, distributor,
publisher, developer;
Form and its attachment to and/or from applicant, Classification Board, distributor,
publisher, developer.
1.2
On 8 October 2020, the Department acknowledged your request, and sought clarification on the
following:
Where documents found to be within scope of your request contain the names and
contact details of employees below Senior Executive Service (SES) level in the Department
and/or advisers in the Minister’s Office, should you agree, it is proposed that those names
and contact details be considered irrelevant to the scope of your request. Grateful if you
could please confirm via return email whether you agree to these details being out of
scope of your request?
1.3
On 8 October 2020, you responded, indicating that:
If redacting, try to keep the country code of the phone number, first 6 digits (or the BIN)
of the credit card number, and only remove the username of the e-mail address.
1.4
The Department identified 36 documents capturing information relevant to your request.
1.5
On 20 October 2020, the Department notified you that some of the documents captured by your
request contained business information of a person or organisation (the
affected third party) and that,
pursuant to section 27 of the FOI Act, the Department was required to consult with the affected third
party before making a decision on access to those documents.
1.6
The affected third party provided submissions to the Department that information contained with
these documents was conditionally exempt from disclosure under section 47 (commercially valuable
information); section 47F (personal privacy) and section 47G (business affairs) of the FOI Act, and that
disclosure, at that time, would be contrary to the public interest.
1.7
The Department accepted some of the exemption submissions of the affected third party, but also
decided to provide access to you to some of the information that the affected third party submitted
was exempt.
1.8
On 30 November 2020, the Department issued a decision on access to you, notifying you that the
decision maker had decided to grant partial access to 36 documents, exempting some information
contained in these documents under section 47F (personal privacy) and section 47G (business affairs),
and that disclosure of that conditionally exempt information was contrary to the public interest at that
time.
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1.9
The Department provided you with access to 20 of the 36 documents with the decision, which
consisted of internal Departmental documents, which did not contain any personal or business affairs
information of the affected third party. (Documents 12-20, 25-33 and 35-36).
1.10 As the Department had made a decision to release to you some of the information over which the
affected party had made exemption submissions, the affected third party had review rights over that
‘access grant’ decision.
1.11 The affected third party did not seek a review of that decision, and on 27 January 2021, the Department
provided you with access to the 16 remaining documents. (Documents 1-12 and 21-24).
1.12 You did not request the Department undertake an internal review of its decision on access.
2
Information Commissioner Review
2.1
On 2 February 2022, the OAIC notified the Department that it had received an application for IC Review
from you.
2.2
You indicated in your request for a review that the particular reasons for the review were:
s47F personal privacy – some might be agency staff. I think document can be release with
only the username of the e-mail address hidden
s47G – I do not agree
22 irrelevant – they are part of the document.
2.3
You also contested as part of your request for review that the charges had been imposed incorrectly.
2.4
On 8 December 2022, the Department issued a notice under section 55G of the FOI Act, waiving the
charges originally paid by you, and a refund was facilitated of the payment made.
2.5
The Department understands that the matter of the charges has now been resolved, and the matter
at issue is your contention that the exemptions applied to the documents released to you should be
reviewed.
2.6
The Department has reviewed the documents under review, and with the passage of time, is now of
the view that additional material can be released to you.
3
Authority to make decision
3.1
Section 55G of the FOI Act provides that the Department may vary (or set aside and substitute) an
access refusal decision (the original decision) in relation to a request at any time during an IC review
of the access refusal decision if the variation or substitution (the revised decision) would have an effect
of giving access to a document in accordance with the request.
3.2
I am authorised by the Secretary to make decisions in relation to Freedom of Information requests
under section 23(1) of the FOI Act.
4
Revised decision on access
4.1
I am satisfied that the 36 documents identified in the Original Decision remain the documents captured
by your request and that these documents were in the possession of the Department when your FOI
request was received.
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4.2
Paragraph 10.80 of the FOI Guidelines states:
If the original decision under IC review is a decision refusing to give access to a document
in accordance with a request under s 53A(a), the revised decision must have the effect of
releasing more material to the IC review applicant. That will include releasing part of a
document because a ‘document’ under s 4(1) of the FOI Act is defined to also include any
part of a document. A revised decision may still be an access refusal decision in relation
to other material within the scope of an FOI request, as long as the variation is made ‘in a
manner that favours the applicant’.
4.3
As such, under section 55G of the FOI Act, I have decided to:
• grant greater partial access to 33 documents and
• grant full access to 3 documents.
4.4
A schedule setting out the 36 documents relevant to your request, together with my revised decision
in relation to these documents, is at
ATTACHMENT A. (the
schedule)
5
Finding of facts and reasons for decision
5.1
My findings of fact and reasons for deciding that parts of the documents fall outside the scope of your
request and that exemptions apply to other parts of documents relevant to your request are set out
below.
Section 22 – deletion of material from documents released to you
5.2
Section 22 of the FOI Act applies to documents containing irrelevant material and allows an agency to
delete such material from a document.
5.3
I note from your correspondence of 8 October 2020, you indicated the following:
• You did not agree that names and contact details of employees below Senior Executive Service (SES)
level in the Department could be considered irrelevant to the scope of your request
• However, you did agree that:
-
you only required the country code of phone numbers
-
you only required first 6 digits (or the BIN) credit card numbers
-
you agreed to remove the username from email addresses.
5.4
As such, I have regarded that particular information, to the extent to which it appears in the
documents, to be outside the scope of your request.
5.5
The emails captured by your request were printed into PDF format as part of the processing
procedures associated with an FOI request. When generated in this way, the name of the staff member
who has printed these emails appears in the top right hand corner of each document. These names
appear within these documents as a result only of this administrative function and were generated
after your request was received. I do not consider this information to be relevant to your request. As
such, I consider this information can reasonably be regarded as outside the scope of your request and
therefore irrelevant to it.
5.6
In addition, documents numbered 8, 9, 13 and 14 in the schedule contain lists of titles being considered
by the Classification Board (the
Board) at the same time as the title relevant to your FOI request. These
titles do not relate to your request or the title the subject of your FOI request. I consider these titles,
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and the information associated with them and contained in these documents, can reasonably be
regarded as outside the scope of your request and therefore irrelevant to it.
5.7
An edited copy of the documents has been prepared in accordance with section 22(1)(a)(ii) of the FOI
Act deleting irrelevant material from the documents. This information is marked ‘s22’ in the
documents released to you.
Section 47E - Documents affecting certain operations of agencies
5.8
Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the management or assessment
of personnel by the Commonwealth or by an agency.
5.9
The Department has statutory obligations under the
Work Health and Safety Act 2011 (WHS Act),
including a primary duty of care, so far as is reasonably practicable, to ensure that persons are not put
at risk from work carried out as part of the conduct of the Department. It is the aim of the Department’s
Work Health and Safety framework to protect workers and other persons against harm to their health,
safety and welfare through elimination or minimisation of risks arising from work.
5.10 I am satisfied that disclosure of the personal information of public servants contained in the
documents relevant to your request may substantially and adversely affect the Department’s ability
to meet its statutory obligations under the WHS Act in that release of this information could cause
harm to the affected staff’s physical and mental wellbeing. There is therefore a protective element to
my decision to ensure that departmental staff are not subjected to inappropriate risks or harm.
5.11 I am satisfied that, because of the nature of the work performed by staff within the Classification
Branch, disclosure of their information may pose a real risk to the health and safety of those staff.
5.12 The Department’s Classification Branch provides administrative support to the Board1. The work
undertaken by the Board can, at times, be divisive, and there have been real, not perceived, instances
of staff being threatened, harassed and intimidated by members of the public. The Board and the
Department have external facing contact points including phone and email addresses for the
community to contact the both the Department and the Board in a safe and efficient way2. These
general contact details are readily available, including being published on the both the Department
and Classification websites.
5.13 These specific channels of communication have been put in place to enable the Department and the
Board to effectively manage resources and protect the wellbeing of staff. They are resourced to
manage enquiries from members of the public, with staff appropriately trained to manage these types
of enquiries. It is reasonable to expect that if these channels of communication were by-passed, the
Department would experience a diversion of its resources, and in addition, the management functions
of the agency and its personnel would be detrimentally impacted.
5.14 As such, I am satisfied that parts of the documents marked ‘s47E(c)’ relate to the Department’s
management of its staff, and their workplace health and safety.
5.15 I am satisfied that parts of the documents marked ‘s47E(c)’ would, or could reasonably be expected to
have, a substantial adverse effect on the management or assessment of personnel by the Department,
and these reasons I have decided that parts of the documents marked ‘s47E(c)’ are conditionally
exempt from disclosure under section 47E of the FOI Act.
1 www.classification.gov.au/about-us/classification-branch
2 www.classification.gov.au/contact-us
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5.16 Where information is found to be conditionally exempt, I must give access to that information unless
access at this time would, on balance, be contrary to the public interest. I have addressed the public
interest considerations below.
Section 47F – Documents affecting personal privacy
5.17 Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would
involve the unreasonable disclosure of personal information about any person (including a deceased
person).
Personal Information
5.18 Personal information has the same meaning as in the Privacy Act. Specifically, section 6 of the Privacy
Act provides that
personal information means information or an 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.
5.19 Paragraph 6.126 of the FOI Guidelines states that for particular information to be personal
information, an individual must be identified or reasonably identifiable.
5.20 Paragraph 6.125 of the FOI Guidelines states that personal information can include a person’s name,
address, telephone number, date of birth, medical records, bank account details, taxation information
and signature.
5.21 An individual is a natural person rather than a corporation, trust, body politic or incorporated
association.
5.22 As such, I am satisfied that parts of the documents marked ‘s47F’ include personal information about
a number of individuals.
Unreasonable Disclosure of Personal Information
5.23 Section 47F(2) of the FOI Act provides that, in determining whether the disclosure would involve the
unreasonable disclosure of personal information, I must have regard to the following matters:
(a)
the extent to which the information is well known
(b)
whether the person to whom the information relates is known to be (or to have been) associated
with the matters dealt with in the document
(c)
the availability of the information from publicly accessible sources
(d)
any other matters that the agency or Minister considers relevant.
5.24 Paragraph 6.133 of the FOI Guidelines states that:
The personal privacy conditional exemption is designed to prevent the unreasonable
invasion of third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance
the public interest in disclosure of government-held information and the private interest
in the privacy of individuals. The test does not, however, amount to the public interest
test of s 11A(5), which follows later in the decision making process. It is possible that the
decision maker may need to consider one or more factors twice, once to determine if a
projected effect is unreasonable and again when assessing the public interest balance.
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5.25 I note that the AAT, in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at
paragraph 259, stated that:
... whether a disclosure is ‘unreasonable’ requires … a consideration of all the
circumstances, including the nature of the information that would be disclosed, the
circumstances in which the information was obtained, the likelihood of the information
being information that the person concerned would not wish to have disclosed without
consent, and whether the information has any current relevance … it is also necessary in
my view to take into consideration the public interest recognised by the Act in the
disclosure of information … and to weigh that interest in the balance against the public
interest in protecting the personal privacy of a third party ...
5.26 Paragraphs 6.137-6.139 of the FOI Guidelines state:
6.137
Key factors for determining whether disclosure is unreasonable include:
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
6.138
As discussed in the IC review decision of
‘FG’ and National Archives of Australia [2015]
AICmr 26, other factors considered to be relevant 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.
6.139
The leading IC review decision on s 47F is ‘BA’ and Merit Protection Commissioner in
which the Information Commissioner explained that the object of the FOI Act to
promote transparency in government processes and activities needs to be balanced
with the purpose of s 47F to protect personal privacy.
5.27 An OAIC paper published in August 2020 and titled ‘
Disclosure of public servant details in response to
a freedom of information request’ noted the evolution of the digital environment and the risks this
created for public servants.
5.28 Relevantly, paragraph 6.148 of the FOI Guidelines states the Information Commissioner’s view that
agencies and ministers should start from the position that including the full names of staff in
documents released in response to FOI requests increases transparency and accountability of
government and is consistent with the objects of the FOI Act.
5.29 However, this position has been rejected by Deputy President Forgie3 in the Administrative Appeals
Tribunal (AAT), who accepted that the words of section 47F should be the starting point of any
consideration of the application of this conditional exemption. Deputy President Forgie noted:
3
Chief Executive Officer, Services Australia and Justin Warren [2020] AATA 4557
(Warren), [paragraph 83]
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The whole of the FOI Act is a finely tuned balance between two interests. In one side of
the balance is the facilitation and promotion of access to a national resource that is
information held by Government, which enables increased public participation in
Government processes and increased scrutiny, discussion, comment, and review of the
Government’s activities. In the other is the protection of the national interest, the
essential operation of government and the privacy of those who deal with government. It
is most important, therefore, that its provisions be read very carefully and that
presumptions should not be introduced that are not expressed, or necessarily implicit, in
the words Parliament has chosen to achieve the balance that it wants. Those words should
be the starting point of any consideration rather than any presumption that agencies and
ministers should start from the position that the inclusion of the full names of staff in
documents increases transparency and increases the objects of the FOI Act.
Most recently, on 5 February 2024, the views of Deputy President Forgie were also adopted by Senior
Member C. J. Furnell in the AAT, stating, at paragraph 46 that:
While a person’s right of access to a document is not affected by the person’s reasons for
seeking access, disclosure may be unreasonable if it has “...
no demonstrable relevance to
the affairs of government and was likely to do no more than excite or satisfy the curiosity
of people about the person whose personal affairs were disclosed.4”
5.30 I do note that the FOI Guidelines5 suggest that a public servant’s first name alone would not reasonably
identify them and would not be considered personal information for the purposes of section 47F.
5.31 I also note that section 93A of the FOI Act states that I must have regard to any guidelines issued by
the Information Commissioner, and as such, they do not bind a decision maker.
5.32 I am swayed, in this instance, by the decisions made in the AAT referred to above.
5.33 I am satisfied that the disclosure of personal information contained within the documents would, in
the circumstances, constitute an unreasonable disclosure of personal information for the following
reasons:
• the conditionally exempt personal information is not well known
• the individuals to whom the personal information relates is not known to be (or to have been)
associated with the matters dealt with in the document
• the conditionally exempt personal information is not available from publicly accessible sources
• the individuals whose personal information is contained in the documents are identifiable
• release of this information would cause stress to the individuals concerned
• no further public purpose would be achieved through the release of the personal information,
noting that the personal information is included in the document as a result of the individuals’
employment circumstance, and arises from the administrative nature of the duties of those staff,
and does not in any way advance the public interest in government transparency and integrity
anticipated by the FOI Act, as these individuals had no authority to make decisions in relation to
the classification of the title which is the subject of your FOI request
• the individuals would not expect the information to be placed in the public domain, and detriment
may be caused to the individuals to whom the information relates, and
4 Re Vangel Colakovski v Australian Telecommunications Corporation [1991] FCA 152; 100 ALR 111 13 Aar 261 29 FCR 429/23 ALD 1
(17 April 1991) [paragraph 4]
5 paragraph 6.147
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• the FOI Act does not control or restrict any subsequent use or dissemination of information
released under the FOI Act.
5.34 I have consulted with affected third parties regarding the disclosure of the personal information of
individuals employed by the affected third party organisation, and I have considered the concerns
raised by the affected third party during the course of making my decision.
5.35 For the reasons outlined above, I decided that parts of the documents marked ‘s47F’ are conditionally
exempt from disclosure under section 47F of the FOI Act.
5.36 Where information is found to be conditionally exempt, I must give access to that information unless
access at this time would, on balance, be contrary to the public interest. I have addressed the public
interest considerations below.
Section 47G – Business information
5.37 Section 47G of the FOI Act provides that a document is conditionally exempt if its disclosure would
disclose information concerning the business, commercial or financial affairs of an organisation or
undertaking, in a case in which the disclosure of the information would, or could reasonably be
expected to, unreasonably affect that organisation or undertaking in respect of its lawful business,
commercial or financial affairs.
Business information
5.38 Paragraph 6.181 of the FOI Guidelines states that the conditionally exempt information must have
some relevance to the business, commercial or financial affairs of an organisation or undertaking.
5.39 Paragraph 6.191 of the FOI Guidelines further states that the use of the term ‘business or professional
affairs’ distinguishes an organisation’s internal affairs. The term ‘business affairs’ has been interpreted
to mean ‘the totality of the money-making affairs of an organisation or undertaking as distinct from its
private or internal affairs’.
5.40 The information contained in the documents and marked ‘s47G’ contains business affairs information
that is relevant to the business, commercial or financial affairs of an organisation or undertaking. This
information is relevant to the profitability and financial viability of an organisation or undertaking, and
does not relate to its private or internal affairs.
5.41 This information is the same single word throughout the documents. It is a code name used by the
affected third party during their application to the Board for classification of the title the subject of
your FOI request.
5.42 As such, I am satisfied that this information is business information.
Unreasonable adverse effect of disclosure
5.43 Paragraph 6.184 of the FOI Guidelines states that the presence of ‘unreasonably’ in section 47G(1)
implies a need to balance public and private interests. The public interest, or some aspect of it, will be
one of the factors in determining whether the adverse effect of disclosure on a person in respect of
his or her business affairs is unreasonable. I must therefore balance the public and private interest
factors to decide whether disclosure is unreasonable for the purposes of section 47G(1)(a); but this
does not amount to the public interest test of section 11A(5) which follows later in the decision
process.
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5.44 Paragraph 6.185 of the FOI Guidelines goes on to state that the test of reasonableness applies not to
the claim of harm but to the objective assessment of the expected adverse effect. I must balance the
public interest against a private interest of the affected third parties, preserving the profitability of a
business.
5.45 I have consulted with the affected third party regarding the relevant business affairs information, and
in making my decision, I have considered submissions made. These submissions include:
(a)
code names are routinely used by the affected third party, and other organisations, to identify
individual games internally and in confidential settings both prior to and after launch of titles
(b)
the code names operate as surrogate game titles prior to the announcement of the title and
existence of a particular game
(c)
release of this information could reasonably be expected to give actors with malicious intent
who seek to gain unauthorised access to the affected third parties systems a starting point for
discovery of information about a particular game and connected products, including trade
secrets, intellectual property, and other confidential business information
(d)
code names are often themed depending on a particular franchise, and the disclosure of one
code name could lead to other code names being discovered, or speculated upon
(e)
the impact to the business affairs of the affected third party in this way would unreasonably
affect the development cycle and processes, and their ability to be competitive and offer
consumers the best possible product, in a highly competitive market.
5.46 As such, I am satisfied that the disclosure of the business affairs information (albeit, one word
throughout the documents) would result in an adverse effect on the business, commercial or financial
affairs of an organisation or undertaking. I have also had regard to the public and private interest
factors, and I am satisfied that the preservation of the profitability and ongoing viability of the affected
third-party business outweighs the public interest in the disclosure of this information.
5.47 For the reasons outlined above, I decided that parts of the documents marked ‘s47G’ are conditionally
exempt from disclosure under section 47G of the FOI Act.
5.48 Where information is found to be conditionally exempt, I must give access to that information unless
access at this time would, on balance, be contrary to the public interest. I have addressed the public
interest considerations below.
Public interest considerations
5.49 Pursuant to section 11A(5) of the FOI Act, I must give access to conditionally exempt information unless
access to that information at that time would, on balance, be contrary to the public interest. I have
therefore considered whether disclosure of the conditionally exempt information would be contrary
to the public interest.
5.50 I note that paragraph 6.224 of the FOI Guidelines states that 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 interest of the public
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests
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• necessarily broad and non-specific and
• relates to matters of common concern or relevance to all members of the public, or a substantial
section of the public.
Factors favouring disclosure
5.51 Having regard to section 11B of the FOI Act, which provides the factors favouring access to
conditionally exempt information in the public interest, I consider that disclosure of the conditionally
exempt information at this time:
(a)
would provide access to documents held by an agency of the Commonwealth, which would
promote the objects of the FOI Act by providing the Australian community with access to
information held by the Australian Government
o I note that paragraph 6.230 of the FOI Guidelines suggests it would be a rare case in which
disclosure would not promote the objects of the FOI Act, including by increasing scrutiny,
discussion, comment and review of the government’s activities.
(b)
would not inform debate on a matter of public importance
(c)
would not promote effective oversight of public expenditure
(d)
would not allow you access to your own personal information.
o I note you are not seeking access to your own personal information and this factor is mute in
my considerations.
Factors weighing against disclosure
5.52 I consider that the following factors weigh against disclosure of the personal information contained in
the documents under review at this time, on the basis that disclosure:
(a)
could reasonably be expected to prejudice the management function of an agency and would
prejudice the Department’s ability to meet its statutory obligations and responsibilities in
relation to the work health and safety of its employees, and
(b)
could reasonably be expected to prejudice the protection of a number of individuals’ right to
personal privacy.
(i)
I consider that the placing of the personal information of individuals who work for the
Classification Branch of the Department into the public domain has the potential to place
those individuals at risk of harassment, abuse, threats and intimidation.
(ii)
As mentioned in paragraph 5.30 above, whilst the FOI Guidelines6 indicate that the
disclosure of a public servant’s first name would not be unreasonable, I consider that the
disclosure of this information would be of little to no value to you.
(iii)
The Department is committed to complying with its obligations under the
Privacy Act
1988, which sets out standards and obligations that regulate how we must handle and
manage personal information.
6 Paragraph 6.147
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(iv)
The release of the names of public servants, and the names of individuals employed by
the affected third party, will not provide any insight into the decision made by the Board
in the classification of the title, nor will it add any value to the scrutiny, discussion,
comment and review of the Government’s activities in that regard.
(v)
The disclosure of this information would be detrimental to the individuals concerned, and
potentially also their families. I consider that mitigating this risk is even more important
today, with the prevalence of social media and technology allowing individuals to be more
easily identifiable and contactable in online environments.
(vi)
I consider that the harm that would reasonably be expected to arise far outweighs any
benefit that would arise from providing this information to you.
(vii) The substance of the documents has been released to you and that substance, in and of
itself, meets the objects of the FOI Act in terms of increasing scrutiny, discussion,
comment and review of the Government’s activities.
(viii) I consider these factors weigh strongly against disclosure of any public servant’s names,
together with the names of the employees of the affected third party company.
(c)
In considering the public interest in disclosing public servants’ personal information to you, I
have taken into consideration the following factors that weigh against disclosure of the
conditionally exempt information at this time:
(i)
the type of work undertaken by the relevant staff
(ii)
the fact that the relevant staff were not discharging powers, making decisions or
exercising functions that impact on the rights and entitlements of members of the
community
(iii)
the fact that the relevant staff details are included in the documents merely as a result of
administrative support functions, such as secretariat support to the Classification Board
(iv)
the particular circumstances of the relevant staff such that the staff members may be
vulnerable to, or at greater risk of harm, if their name and contact details are disclosed
due to the nature of the work undertaken by the Classification Branch within the
Department
(v)
the fact that the relevant staff details are not publicly available, including in the
Government Online Directory.
5.53 I consider it is firmly in the public interest that we uphold the rights of individuals to their own privacy
and meet our statutory obligations under the Privacy Act.
5.54 I also consider it is firmly in the public interest that the Department meet its statutory obligations and
responsibilities in relation to the work health and safety of its employees.
5.55 I consider that the public interest in increasing participation in government processes or in increasing
scrutiny, discussion, comment and review of Government decision making is not advanced by the
release of the personal information contained in the documents.
page 12 of 18
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5.56 This is consistent with the findings of the Administrative Appeals Tribunal7/8.
5.57 I also consider that the following factors weigh against disclosure of the business information
contained in the documents under review at this time, on the basis that disclosure could reasonably
be expected to adversely impact the preservation of the ongoing viability of the affected third-party
business and other associated business in a broader sense.
(a)
Evidence of the existence, at the time of the classification application, on an embargo is
apparent within the documents, but with the passage of time, the game title is now well
established and known.
(b)
The code name is not and is only known to those that need to know it.
(c)
Releasing the code name to you will not add any value to the scrutiny, discussion, comment and
review of the Government’s activities in regard to the classification of this title.
(d)
The codename was provided to the Department on a “need to know” basis, and was managed
by the Department in that context. Access to Board information, managed by the Classification
Branch through its provision of secretariat services to the Board, follows the Department’s
restriction of access to that information by approved employees only. That access is strictly
managed on a ‘need to know’ basis, based on specific work functions. The department allows
access to its record keeping systems via a standard three factor authentication process to
protect information held by it.
(e)
Providing the conditionally exempt business information beyond those that have a need to know
would not add any value to the scrutiny, discussion, comment and review of the Government’s
activities in regard to the classification of this title.
(f)
I consider the harm in disclosing information to you, which was provided to the Department
solely for the purposes of seeking classification of a particular title, far outweighs any public
interest in releasing it. The information was provided to the Department for a specific intended
purpose, to identify an as yet unpublished title. I am satisfied that there is no furtherance of the
objects of the FOI Act in releasing that discrete information to you.
5.58 In making my decision, I have not taken into account any of the irrelevant factors set out in section
11B(4) of the FOI Act.
Conclusion – disclosure is not in the public interest
5.59 For the reasons set out above, after weighing all public interest factors for and against disclosure, I
decided that, on balance, disclosure of the conditionally exempt information would be contrary to the
public interest. I am satisfied that the benefit to the public resulting from disclosure of the conditionally
exempt information is outweighed by the benefit to the public of withholding that information.
7 Warren and Chief Executive Officer, Services Australia (Freedom of Information) [2020] AATA 4557
8 Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 (5 February 2024)
page 13 of 18
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Section 22 – deletion of material from documents released to you
5.60 Section 22 of the FOI Act applies to documents containing exempt material and allows an agency to
delete such material from a document.
5.61 As I decided that some information you have requested is exempt from disclosure, I have prepared an
edited copy of the documents released to you by deleting the exempt information under
section 22(1)(a)(i) of the FOI Act.
6
Further information
6.1
If the Department is able to assist the Information Commissioner any further with this review, or
requires additional information regarding this review, please contact the Department’s FOI Section
at xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Mitchel Cole
Assistant Secretary
Classification Branch
Online Safety, Media & Platforms Division
Date: 23 August 2024
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ATTACHMENT A.
SCHEDULE OF DOCUMENTS FOI 21-052
Doc Num of Date of
Description of document
Original decision Provision of FOI Revised decision Provision of
No. Pages document
on access
Act
on access
FOI Act
1.
2
2 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
Embargo Request
rights applied
granted in part
With Attachment:
Release in part
s47F, s47G
Letter from Activision
2.
3
2 Sept 2020 Department to Department
Third party review
Greater access
s22, s47F, s47G
Embargo request for your approval
rights applied
granted in part
With Attachment:
Release in part
s47F, s47G
Letter from Activision - (Duplicate of
Attachment to Document 1 above)
3.
2
3 Sept 2020 Department to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo request for your approval
rights applied
granted in part
Release in part
s47F, s47G
4.
3
3 Sept 2020 Department to Activision
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
With Attachment:
Release in part
s47F, s47G
Classification EFT Bank Details Template
5.
3
4 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
6.
3
4 Sept 2020 Department to Activision
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
7.
4
4 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
8.
3
7 Sept 2020 Department to Department
Third party review
Greater access
s22, s47F, s47G
Applications on hand – Monday 7 September 2020
rights applied
granted in part
Release in part
s22, s47F, s47G
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Doc Num of Date of
Description of document
Original decision Provision of FOI Revised decision Provision of
No. Pages document
on access
Act
on access
FOI Act
9.
3
7 Sept 2020 Department to Department
Third party review
Greater access
s22, s47F, s47G
RE: Applications on hand – Monday 7 September 2020 rights applied
granted in part
Release in part
s22, s47F, s47G
10.
4
7 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Attachment:
Release in part
s47F, s47G
2
7 Sept 2020 7 Sept 2020 Activision to Department
RE: Receipt for your classification/training payment
Attachment:
Receipt
0
11.
5
7 Sept 2020 Department to Activision
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
12.
1
7 Sept 2020 Department to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Completed Applications – Monday 7 September 2020
granted in part
13.
3
10 Sept 2020 Department to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Applications on Hand – Thursday 10 Sep 2020
granted in part
14.
3
11 Sept 2020 Department to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Applications on Hand – Friday 11 September 2020
granted in part
15.
1
11 Sept 2020 Activision to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
RE: Certificate email
granted in part
16.
2
11 Sept 2020 Department to Activision
Released in part
s22, s47F, s47G
Greater access
s22, s47F
RE: Certificate email
granted in part
Attachment:
3
Decision Report – Games
17.
2
11 Sept 2020 Activision to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
RE: Certificate email
granted in part
18.
3
14 Sept 2020 Activision to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
RE: Certificate email
granted in part
Attachment:
2
Classification Certificate
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Doc Num of Date of
Description of document
Original decision Provision of FOI Revised decision Provision of
No. Pages document
on access
Act
on access
FOI Act
19.
3
16 Sept 2020 Activision to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F
RE: Certificate email
granted in part
20.
4
16 Sept 2020 Department to Activision
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Call of Duty: Black Ops Cold War – Change of
granted in part
Programmer
21.
5
22 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
22.
7
23 Sept 2020 Department to Department
Third party review
Greater access
s22, s47F, s47G
RE: Remove Embargo request. Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
23.
7
23 Sept 2020 Department to Activision
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
24.
6
23 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
RE: Embargo Request
rights applied
granted in part
Release in part
s47F, s47G
25.
3
10 Sept 2020 Classifier Notes - File Number: T20/3115
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Includes handwritten notes
granted in part
26.
6
10 Sept 2020 Classifier Notes - File Number: T20/3115
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Includes handwritten notes
granted in part
27.
6
10 Sept 2020 Classifier Notes File Number: T20/3115
Released in part
s22, s47F, s47G
Greater access
s22, s47F
Includes handwritten notes
granted in part
28.
4
10 Sept 2020 Decision Report - File Number: T20/3115
Released in part
s22, s47F, s47G
Greater access
s47F
granted in part
29.
2
Undated
Application for Classification of a Computer Game
Released in part
s22, s47F, s47G
Greater access
s22, s47F
2020
CALL OF DUTY: BLACK OPS COLD WAR
granted in part
30.
1
Undated
Classification Board Form: Online Interactivity
Released in ful
Release in full
31.
3
Oct 2019
Classification Board Form: Contentious material –
Released in ful
Release in full
computer games
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Doc Num of Date of
Description of document
Original decision Provision of FOI Revised decision Provision of
No. Pages document
on access
Act
on access
FOI Act
32.
16
Oct 2019
Classification Board Form: Detailed written description Released in ful
Release in full
of gameplay
33.
1
4 Sept 2020 Activision to Department
Released in part
s22, s47F, s47G
Greater access
s22, s47F, s47G
Received package
granted in part
34.
1
2 Sept 2020 Activision to Department
Third party review
Greater access
s22, s47F, s47G
Embargo request letter
rights applied
granted in part
(duplicate of attachment to Document 1)
Release in part
s47F, s47G
35.
2
11 Sept 2020 Department to Activision
Released in part
s22, s47F, s47G
Greater access
s47F
CLASSIFICATION CERTIFICATE FOR A COMPUTER GAME
granted in part
36.
1
Undated
Department Database screen-shot of an Application
Released in part
s22, s47F, s47G
Release in full
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