the solution

Recent Cases: Commonwealth

‘PL’ and Department of Home Affairs (Freedom of Information) [2018] AICmr 67 (13 November 2018)

The applicant requested from the Department of Home Affairs ("Department") the following information:

1.  A list of names of all entities, who are not individuals/sole traders that were granted a sub class 457 standard business sponsorship in the last 5 years;

2.  Indicate which of the standard business sponsors are named "Accredited Sponsors";

3.  Expiry dates of the Accredited Sponsors; and

4.  Grant dates of all visas granted under the sponsorship's listed above.

The Department was able to identify parts 1, 2 and 4 of the applicant’s request.   It released the documents identified under two broad headings:

1.  Accreditation status; and

2.  Visa grant date.

 

In making its decision the Department asserted pursuant to s 47E(d) that full disclosure would affect the operations of the agency pursuant to the conditional exemption s 47E(d) of the FOI Act and its business affairs pursuant to s 47G(1)(a) of the FOI Act.

 

The Department was unable to provide expiry dates of Accredited Sponsors pursuant to part 3 of the request.  It claimed that it was unable to identify whether such documents existed or whether such documents could be found pursuant to s 24A of the FOI Act.

 

The applicant then sought for review.

 

The issue

The document in question consisted of 2,549 pages and contained approximately 174,732 business entity names including Australian Business Numbers ("ABNs") which could be searched on the ABN register, and Case Identification Numbers ("CIDs").   However, the applicant was not interested in such information and clarified that he was on seeking review of the Department's application of the exemptions to the document. Narrowing the request down, the subject of the review concerned 174,732  business entities that were granted a subclass 457 standard business sponsorship in the 5 years preceding the applicant’s request.

 

Adverse affect on business operations exemption

For the Department to succeed on this ground, it is to provide particulars to support whether disclosure would have an affect on the operations of the organisation.  The Department stated that disclosure of the names of third party business entities would reveal the sponsors themselves which may harm its relationship with businesses that sponsor skilled migrants.  The Department needs to do more than just merely assert that disclosure would decrease the number of businesses willing to sponsor skilled migrants.  The Tribunal was satisfied that the Department failed to provide adequate evidence to support that the adverse effect is likely to occur.  The documents were not found to be exempt under this section.  

 

Business affairs exemption

The Tribunal examined the unedited version of the exempt document in part 3 of the request.  It was identified that the document did contain information relevant to the business affairs of the Department given the information contained the names of third party business entities that were granted sub class 457 standard business sponsorships in the last five years. 

 

Third party consultations

The Department did not engage in third party consultation because it argued that doing so would be impracticable.  Where the Department is satisfied that this is the case, this section allows them to take no further action to consult.  The Tribunal accepted that there would be significant time and resources wasted in processing the request given the number of business entities that are listed on the document.  Therefore, the Department was not required to give the affected business entity an opportunity to make submissions as it would not be reasonably practicable.

 

The Tribunal had examined the unedited versions of the documents and held that the Department had failed to explain how disclosure would affect competition among other businesses.  Given the information relates to third party businesses that were granted subclass 457 standard sponsorship in the five years prior to the request, the Tribunal was not convinced that disclosure would affect third party business entities.  

 

HELD

The Tribunal set aside and substituted the Department's decision. The material which comprised sponsorship case identification numbers and the ABNs of sponsors were held not be be exempt. 

‘PM’ and Department of Industry, Innovation and Science (Freedom of Information) [2018]  AICmr 70 (30 November 2018).

The applicant was interested in any discussion associated with a potential Radioactive Waste management Facility at Kimba.  It requested access to emails, notes, memorandums, documents, reports and submissions that refer to the definition of “broad community support” from the Minister for Resources and Northern Australia.

 

The Minister transferred the request to the Department of Industry, Innovation and Science ("the Department")  as the request was more closely related to its functions.  The Department identified 1 document that consisted of 64 folios. It decided that only some parts of the three folios were relevant to the request but  access to all three was refused in full.

 

The applicant sought internal review and the Department affirmed its original decision.  The applicant then sought review from the Information Commissioner ("IC"). The Department then varied its decision granting access to one folio in full but again refusing access to the remaining two.

 

Deliberative process exemption: s 47C

The Department found in its internal decision that it was satisfied the information in the documents was deliberative in nature as it contained information in the form of advice and recommendations. This was with regards to the Minister's decision under the National Waste Management Act 2012 ("NWMA Act"). 

 

The information contained in the folios was there to assist the Minister in understanding the practical and political implications of the Department’s advice and recommendations.  The IC was satisfied that the material was neither purely factual in nature nor operational and therefore, the information is conditionally exempt under s 47C.

 

Public interest

The IC found that it would not be contrary to public interest if the material was released. The Department argued that disclosure would detriment or restrict the Department’s ability to make effective policy determinations and recommendations in the future. It expressed concern that it may instead be forced to supply purely objective information to ministers, rather than subjective elaborations based on policy. The IC rejected this argument, finding that no specific or special circumstances were made out that would support this argument.

 

Certain operations of agencies exemption

The IC held that the two folios contained material that was created for the purposes of the Minister's decision under the NRWM Act.  Overall, the IC found that the Department did not justify the application of this exemption.

 

HELD

The decision was set aside. The IC ordered the Department to supply the applicant with an edited copy of the documents, removing all irrelevant material.