Recent Cases: Commonwealth
‘RE’ and Department of Home Affairs (Freedom of information) [2019] AICmr 63.
The applicant requested documents that concerned its own personal information from the Department of Home Affairs (“Department”) which were held by the Department of Immigration and Border Protection. The Department was deemed to have made a decision refusing the request as it did not provide the applicant with a response before the 30-day review period ended.
The applicant sought review from Office of the Australian Information Commissioner (“Commissioner”).
The Department advised the applicant 3 months later that it identified five department files within the scope of its request. Two department files were given in full, however the other three were either refused in part or in full. The Department then revised its decision giving the applicant access to further material. The applicant argued that two out of three documents that were not given contained personal information about the applicant, therefore it should be given to them.
Certain Operations of agencies exemption: s 47E(d)
Two documents that were not given to the applicant were identity assessment forms. Disclosure was not warranted because the Department believed disclosure may reasonably prejudice the effectiveness of the Department’s functions. If disclosed, the Department feared that the applicants may be able to circumvent its processes of identifying individuals requiring the Department to change its processes.
These documents assisted with the Department’s methodology in this specific case and if disclosed it would hinder its operations and its ability to conduct these assessments in future. The Commissioner was satisfied that the information exempt would reveal strategies, methods, and lines of inquiry by the Department to identify the individual’s true identity.
Public interest
The Commissioner held that disclosure would not be in the public interest as revealing the Department’s methodology would prejudice its ability to obtain the same information in future.
Deliberative processes exemption: s 47C
The Commissioner also found the two identity assessment forms exempt under s 47C for the same reasons given in s 47E(d).
HELD
The Commissioner affirmed the Department's original decision.
Graham Mahony and Australian Charities and Not-for-profits Commission (Freedom of Information) [2019] AICmr 64.
The applicant requested from the Australian Charities and Not-for-profit Commission (“ACNC”) documents that concerned any investigations conducted relating to the Pignatelli Building Fund (“fund”) and the outcome of those investigations.
The ACNC neither confirmed nor denied the existence of any documents relating to the applicant’s request. It advised the applicant that even if the documents were to exist, they would be exempt under the operations exemption in s 47E(d).
The applicant sought review from the Office of the Australian Information Commissioner (“Commissioner”) and queried whether the ACNC took all reasonable steps to identify those documents (s 24A).
Reasonable steps taken to find documents: s 24A
ACNC stated that based on its discussions with other agency staff, evidence of searching within its internal charity management system and copies of the documents within the scope of the request provided by ACNC's Compliance Directorate that that was enough to prove it had taken all reasonable steps to conduct a search. The Commissioner held that the search was sufficient under s 24A.
Certain operations of agency exemption: s 47E(d)
The ACNC regulates not-for-profit agencies therefore relies heavily on these agencies to provide sensitive information on a voluntary basis with the understanding that it would not be disclosed to third parties. There is an expectation that confidentiality would apply in cases where sensitive information is freely given to ACNC. The Commissioner was satisfied that if the information supplied by not-for-profit organisations were disclosed it would impact ACNC's ability to obtain accurate and personal information about the agency in future.
Public Interest
The Commissioner considered that disclosure could prejudice an agency’s ability to obtain similar information in future which would detriment its operations.
HELD
The Commissioner affirmed the ACNC's original decision.