Annexure A

in these instructions is a fictitious refusal decision made by a freedom of information decision-maker. This decision was made by the Department of Resources ('the Department') in response to a freedom of information request made by Stella Record, a journalist at Knowmore News.

You are a junior lawyer at a law firm that acts for Knowmore News. Know more News wants to seek a review of the Department's decision by the Information Commissioner. You are asked by a partner of the firmPage Hunterto an internal memorandum for her about a potential application to the Information Commissioner for review of the access refusal decision. Page will use this memorandum as she prepares her formal legal advice to Knowmore News.

You should carefully review the access refusal decision in Annexure A and the scenario facts and then prep a memorandum of advice (up to 1800 w). The task Template available below sets out the format for this memorandum. The memorandum must address the following issues: (1) Summary (100 w) Provide a concise summary of your advice. Identify the documents that you consider are required to be disclosed and the documents that are not required to be disclosed. (2) Memorandum of advice (1700 w) This section should consist of two parts: a) Scope of IC review (300 w) Identify what decision is reviewable, the requirements for making a valid application for review to the Information Commissioner (IC), and the parties to the review. Note: in this task, assume the The Department of Resources is a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth.

Explain the nature and scope of the merits review process undertaken by the IC.

Identify the matters that the IC may have regard to in conducting the review of the decision.

Identify in what circumstances, if any, a party to the IC review application may seek merits review of a decision of the IC.

(While you may note the availability of internal review, you are not expected to spend any time outlining the internal review process. You are not required to consider the circumstances in which the IC may refer a question of law to the Federal Court or in which a party to the IC review may appeal to the Federal Court, on a question of law, from a decision of the IC).

b) Legal analysis of decision (1400 w) Your advice should correctly apply the relevant law to the facts and provide a legal analysis of the access refusal decision. This analysis should identify:

Any grounds on which your client may dispute the reasons given in the decision for a claim that a document is exempt or conditionally exempt; and

Any grounds on which your client may argue that the public interest in giving access overrides the reasons given for not granting access.

NOTE: For the purposes of this task u are not required to look beyond the claimed exemptions identified by the Department in its access refusal decision (i.e. you are not required to consider whether there might be alternative grounds on which the Department, or the IC, could refuse access to any of the documents identified).

In section 2(b) of your memorandum (i.e. your legal analysis of the decision):

Your reasoning should demonstrate your understanding of the purpose and operation of Freedom of Information Act 1982 (Cth) and clearly articulate the correct application of the relevant law to the facts in the assignment scenario.

You should state your legal opinion about whether the claimed exemptions apply to the documents identified in the schedule of documents.

Your legal analysis should be focused on applying the law to the facts of this case, and should not simply restate or summarise the law.

You may structure this section of your advice in whatever way you think will be most clear to your supervising partner in the space available.

You are encouraged to use subheadings as appropriate to make your advice clear and logical to follow.

Your memorandum should include footnote references to relevant legislation, case law and other authorities, including the FOI Guidelines in particular, parts 5, 6, and 10 of these Guidelines. (see AGLC4).

SCENARIO FACTS Stella Record is a journalist at Knowmore News. She is investigating the Special Projects Division ('the Division') of the Commonwealth Department of Resources ('the Department') after receiving anonymous allegations that there is a culture of harassment and bullying within the Division.

On 5 April 2023 Stella Record publishes a news report titled "Toxic Culture Exposed". In that report she quotes unnamed current or former employees of the Division as stating that there is a 'toxic workplace culture' within the Division.

The news report states:

According to a leaked internal staff survey, conducted in December 2022, and obtained by Knowmore News, one in three staff members in the Special Project Division report having experienced bullying or harassment in the last 12 months. On 12 April 2023, the Minister of the Department is taking part in a radio interview when she is asked whether there is a toxic culture within the Division.

The Minister states: Everyone in the Department should be able to enjoy a safe, inclusive, and respectful workplace. The Department has commissioned an independent review of workplace culture in the Special Projects Division by Dr Clarity Gray. Dr Gray is a highly regarded expert in the field and we look forward to her report.

The following day, 13 April 2023, the Department issues a media release about the appointment of an independent expert, Dr Clarity Gray to undertake a review of workplace culture within the Division and provide a written report and recommendations to the Department. The media release states:

Dr Clarity Gray, a Professor of Employment Relations at Commonwealth University, will conduct an independent review of the workplace culture in the Special Projects Division.

The review will evaluate whether current policies and procedures are effective in preventing and responding to bullying, sexual harassment and discrimination in the workplace. The review will not investigate or make findings about individual complaints of such conduct.

Some months later, in December 2023, one of Stella's sources tells her that Dr Clarity Gray has provided her report to the Department, and that the Department is 'sitting on it'. Stella also hears rumours that staff in the Division have been briefed on the Department's proposed response to the recommendations of the Gray Review.

On 9 January 2024, Stella writes to Department and requests access to the following documents pursuant to the Freedom of Information Act 1982 (Cth).

a) All emails, briefs or other communications directed to all staff in the Special Projects Division that relate to the independent review by Dr Clarity Gray during the period 5 April 2023 to 2 January 2024.

b) Any report related to the independent review of workplace culture in the Special Projects Division conducted by Dr Clarity Gray in the period 12 April 2023 to 2 January 2024.

On 5 February 2024, Stella receives the Department's decision in response to her FOI request ('the decision'). A copy of the decision, including a schedule detailing claimed exemptions, is annexed and marked "A".

The decision states the authorised officer has identified 4 documents that fall within the scope of Stella's request. The authorised officer has decided that 3 of these documents are fully exempt from release. The authorised officer has decided to provide part access to the remaining document, 'Document 3', which is the Final Report Dr Clarity Gray provided to the Department ('the Final Report').

The edited copy of the Final Report provided to Stella includes a contents page which lists the following chapters:

Chapter one: Executive Summary; Chapter two: Terms of reference and review methodology; Chapter three; Culture at the Department; Chapter four: Key Observations and Findings; Chapter five: Conclusion and Recommendations.

Stella's edited copy of the Final Report also includes the report's Executive Summary, which states: This report finds that there are significant risk factors for sexual harassment and bullying within the Special Projects Division and a lack of trust in the current procedures to respond to reports of inappropriate workplace conduct. The report makes 10 recommendations to change workplace culture... ... Chapters 3 and 4 examine the experiences and views of current and former staff of the Special Project Division. The independent reviewer is grateful to all the current staff and former staff members of the Division who participated in this review. Former and current staff were invited to participate in a confidential interview or make a confidential submission to the review. The reviewer conducted 30 confidential interviews with past and present employees and received five confidential written submissions from past and present employees. Eighty-three per cent of staff also participated in an anonymous staff survey. Any quotes or information from the confidential interviews or submissions included in this report have been de-identified to preserve the anonymity of participants. It was not within the scope of this review to investigate or make findings about individual incidents or complaints made about any past or current staff members.

On 10 February 2024, Knowmore News contacts Page Hunter, a partner in your law firm. Page directs you, a junior lawyer in the firm, to prepare an internal memorandum addressing the matters listed in the task Instructions. Page will rely on your memorandum as she prepares her legal advice to Knowmore News.