More Unproved assertions by the Department of Home Affairs invoking the operations exemption (section 47E of the FOI Act)

In Asylum Seeker Resource Centre and Department of Home Affairs (Freedom of information) [2020] AICmr 7 the Information Commissioner rejected the Department’s reliance on s 47E(d) (substantial adverse effect on the proper and efficient conduct of the operations of an agency) and s 47(1)(b) (commercially-sensitive information) to block release of various Serco ‘behaviour management’ policies.

The objections are properly described as vexatious. In no way could it seriously have been argued that these internal policies are commercially sensitive. Nor could they seriously ever have been argued to have attracted the operational exemption, since the very conduct that the policies dictate are routinely implemented (and abused).

Of significance in the Commissioner’s reasons is [38] where she referred to the FOI Guidelines:

The FOI Guidelines further explain:

… the predicted effect needs to be reasonably expected to occur… There must be more than merely an assumption or allegation that damage may occur if the document were to be released. …
An agency cannot merely assert that an effect would occur following disclosure….

Despite the Guidelines, it is significant that the Department routinely engages in bare assertion that s 47E applies to block release of information that applicants at law are entitled to. However, practicalities (including the Department’s routine contravention of time limits, and the chronic under-resourcing of the Office of the Australian Information Commissioner by the government), often make it difficult if not impossible to vindicate applicant rights under the FOI Act. Proceedings seeking mandamus, set up with correspondence to protect the costs position, might achieve some degree of compliance where the lack of court action would otherwise result in no compliance at all.

The released documents are here.

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