1 Customs House 5 Constitution Avenue Canberra ACT 2601 File No: 2015/005369 Your Reference: DJF:JCL:66129960:jes 24 April 2015 BY EMAIL: Dear Request for access to documents – Freedom of Information Act 1982 (FOI Act) I refer to your email dated 6 February 2015 in which you request access to documents held by the Australian Customs and Border Protection Service (ACBPS) under the Freedom of Information Act 1982 (the FOI Act). I am authorised under section 23 of the FOI Act to make decisions to release and to refuse access to exempt documents. Scope of Request You have requested access to the following documents: '1. copies of the applications and supporting documentation for Tariff Concession Orders (TCO's) 1008024, 0941610 and 1218915; 2. copies of internal documents relating to ACBPS's determination to grant the TCOs 1008024, 0941610 and 1218915; 3. all documents, including any illustrative descriptive material (IDM) presented by ACBPS by the applicants for TCOs 1008024, 0941610 and 1218915; 4. documents relating to any previous determination by ACBPS on the interpretation of TCOs 1008024, 0941610 and 1218915 including correspondence, emails, minutes, searches, reports, briefing notes and internal and external advices; 5. documents relating to any deliberation in respect to the revocation by ACBPS on the TCOs 1008024 and 1218915 including but not limited to correspondence, emails, minutes, briefing notes, searches, reports and internal and external advices; and
Transcript
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Customs House 5 Constitution Avenue Canberra ACT 2601
File No: 2015/005369 Your Reference: DJF:JCL:66129960:jes 24 April 2015
BY EMAIL: Dear Request for access to documents – Freedom of Information Act 1982 (FOI Act)
I refer to your email dated 6 February 2015 in which you request access to documents held by the Australian Customs and Border Protection Service (ACBPS) under the Freedom of Information Act 1982 (the FOI Act).
I am authorised under section 23 of the FOI Act to make decisions to release and to refuse access to exempt documents.
Scope of Request
You have requested access to the following documents:
'1. copies of the applications and supporting documentation for Tariff Concession Orders (TCO's) 1008024, 0941610 and 1218915;
2. copies of internal documents relating to ACBPS's determination to grant the TCOs 1008024, 0941610 and 1218915;
3. all documents, including any illustrative descriptive material (IDM) presented by ACBPS by the applicants for TCOs 1008024, 0941610 and 1218915;
4. documents relating to any previous determination by ACBPS on the interpretation of TCOs 1008024, 0941610 and 1218915 including correspondence, emails, minutes, searches, reports, briefing notes and internal and external advices;
5. documents relating to any deliberation in respect to the revocation by ACBPS on the TCOs 1008024 and 1218915 including but not limited to correspondence, emails, minutes, briefing notes, searches, reports and internal and external advices; and
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6. material relied upon by ACBPS in forming the current restrictive determination of the TCOs 1008024, 0941610 and 1218915 including but not limited to correspondence, emails, minutes, searches, reports, briefing notes and internal and external advices.'
Charges
.
Consultation
On 11 March 2015, ACBPS notified you that the agency was consulting a number of third parties under section 27 of the FOI Act. It appeared that those third parties might reasonably wish to make an exemption contention because of business affairs information in the documents.
The third parties consulted made submissions contending that the release of some information contained within the documents is exempt under section 47 of the FOI Act.In making my decision, I have considered carefully the submissions made by the third parties objecting to the release of the business affairs or commercially valuable information.
Decision on access
ACBPS has identified 17 documents that fall within the scope of your request. These documents were in the possession of ACBPS on 6 February 2015 when your FOI request was received.
I make the following decision in relation to the documents in the possession of ACBPS which come within the scope of your request:
Release two documents in full, and
Release 15 documents in part with deletions.
A schedule of these documents is at ATTACHMENT A for your reference.
I have provided detailed reasons for my decision below.
Reasons for Decision
The schedule of the 17 documents that fall within the scope of your request at Attachment A sets out the decision on access and, where appropriate, refers to various sections of the FOI Act. My reasoning in relation to the application of each section to particular documents is set out below.
1 Section 47(1)(b) of the FOI Act – Documents disclosing commercially valuable information
I have decided that parts of documents numbered 9 and 15 contain information of a commercial value to a third party and that value would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
The information contained within that document is valuable for the purpose of carrying on the commercial activities in which the relevant third parties are engaged. The
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information is in the nature of product costing information, including raw data and calculations and technical specifications and images of goods. The information is relevant to the profitability or viability of a number of continuing business operations. If the information were to be released, it could enable a competitor to obtain a commercial advantage over the third parties.
I have therefore decided that parts of documents numbered 9 and 15 are exempt from disclosure under section 47(1)(b) of the FOI Act.
2 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
I consider that the disclosure of parts of document 4 would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of ACBPS.
Parts of that document include information about ACBPS’ IT systems, the disclosure of which would have a substantial adverse effect on the operations of ACBPS.
Additionally, document numbered 4 contains two tariff advices. I consider that the release of this material could undermine ACBPS’s ability to facilitate the movement of legitimate goods across the border and the efficient collection of border related duties and taxes.
The Tariff Advice System is designed to allow importers to seek an advance ruling (prior to importation) on the tariff classification of specific goods from a particular exporter to a particular importer and cannot be used by other importers.
I consider that the disclosure of a Tariff Advice to a third party who is not the importer will affect the integrity of the scheme as a whole and as a result would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of ACBPS.
Accordingly, I have decided that parts of the document numbered 4 are conditionally exempt under section 47E(d) of the FOI Act.
3 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure under FOI would involve the unreasonable disclosure of personal information of any person. ‘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 (see s 4 of the FOI Act and s 6 of the Privacy Act 1988).
I consider that disclosure of parts of documents numbered 1‐5 and 8‐17 would disclose personal information relating to third parties. The relevant paragraphs contain information which would reasonably identify a person, either through names, positions or descriptions of their role or employment circumstance. These individuals are third parties or ACBPS officers whose personal information is not publicly available.
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I consider that the disclosure of the information within these documents would involve an unreasonable disclosure of personal information about a number of individuals.
I have decided that parts of the documents referred to above are conditionally exempt under section 47F of the FOI Act.
4 Section 47G(1)(b) of the FOI Act – Business Affairs
Section 47G(1)(b) of the FOI Act permits conditional exemption of documents containing business information where disclosure of that information could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
Part of the documents numbered 4, and 12 contain information concerning the business, commercial or financial affairs of a number of organisations, which was supplied to ACBPS for the purpose of administering the tariff concession scheme in the Customs Act 1901. Disclosure of this information could reasonably be expected to impact the supplying organisation’s industry reputation and relationships with suppliers and competitors, and their capacity to acquire that information in the future, resulting in a reluctance to supply such information to ACBPS in the future.
ACBPS is assisted by the provision of information by third parties, including local manufacturers, to determine whether tariff concession orders should be made or revoked. I therefore consider that releasing the information could reasonably be expected to prejudice the future supply of information to ACBPS for the purpose of administering the tariff concession scheme, and thereby undermine the effective administration of that scheme by ACBPS.
Accordingly, I have decided that part of the documents referred to above are conditionally exempt under section 47G(1)(b) of the FOI Act.
5 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to consider whether access to the conditionally exempt information in those documents would be contrary to the public interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other factors listed in section 11B(3) of the FOI Act, being whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
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(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Having regard to the above:
I am satisfied that access to the documents would promote the objects of the FOI Act.
I consider that the subject matter of the documents does not, in itself, seem to have the character of public importance. The matter has a very limited scope and, in my view, would be of interest to a very narrow section of the public.
I consider that no insights into public expenditure will be provided through examination of the documents.
I am satisfied that you do not require access to the documents in order to access your own personal information.
Disclosure of all aspects of the documents would not provide a person with sufficient information to assess the rigour or efficiencies of internal decision making processes within ACBPS, promote scrutiny of government decision making or reveal the reasoning for a government decision. I consider these considerations as neutral.
I have also considered the factors that weigh against the release of the conditionally exempt information in the documents:
The disclosure of the personal information of individuals contained in documents 1‐5 and 8‐17 could reasonably be expected to prejudice the protection of those individuals' right to privacy. It is my view that it is firmly in the public interest to uphold the rights of individuals to their own privacy. I consider that this factor weighs heavily against disclosure.
I consider that the disclosure to the world at large of some of the conditionally exempt information contained within document 4 would have a substantial adverse effect on the IT Network of ACBPS. This conditionally exempt information is of value to individuals or organisations who may be interested in crafting a hostile cyber security attack on the IT systems of ACBPS. I consider that this factor weighs heavily against disclosure of this conditionally exempt information.
Tariff advices are private rulings and there is an expectation within industry that ACBPS will protect this information and not release it to the public. I consider that the disclosure of a tariff advice to a third party will affect the integrity of the scheme as a whole and as a result I consider that the disclosure of this information would be contrary to the public interest.
I consider that the disclosure of the parts of the documents that are conditionally exempt under section 47G of the FOI Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of matters administered by ACBPS. I consider that this factor weighs heavily against disclosure.
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I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my decision, which are:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the disclosure of the conditionally exempt information in the documents is not in the public interest and therefore exempt from disclosure under the FOI Act.
Legislation
I have attached an extract of the exemption provisions of the FOI Act and the public interest test for your information at ATTACHMENT B.
Your Review Rights
The FOI Act grants you rights to have my decision reviewed.
Information regarding your review rights is available in the Office of the Australian Information Commissioner's FOI Fact Sheet 12 at ATTACHMENT C for your reference.
Making a Complaint
FOI fact sheet 13 from the OAIC is at ATTACHMENT D for your reference. This sets out how you may complain to the Australian Information Commissioner if you have concerns about how ACBPS has handled your request for documents under the FOI Act.
Contact
Should you wish to discuss my decision, please do not hesitate to contact Ms Rebecca Azzopardi, FOI Coordinator on 02 6275 5621 or via email at [email protected].
Ben Hickey Director, Industry Assistance Australian Customs and Border Protection Service
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ATTACHMENT B
Relevant Legislation
Section 47 ‐ Documents disclosing trade secrets or commercially valuable information
(1) 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.
(2) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(3) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a local government authority.
Section 47E ‐ Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Section 47F ‐ Public interest conditional exemptions—personal privacy
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister 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.
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(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well‐being.
(5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the first‐mentioned qualified person; and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7) In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‐being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
Section 47G ‐ Public interest conditional exemptions—business
(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth, Norfolk Island or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2) Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
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(3) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Commonwealth, Norfolk Island or a State or by a local government authority.
(5) For the purposes of subsection (1), information is not taken to concern a person in respect of the person’s professional affairs merely because it is information concerning the person’s status as a member of a profession.
11B ‐ Public interest exemptions—factors
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
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