LEGAL

Limestone Avenue, Campbell, ACT 2612

PO Box 225, Dickson, ACT 2602, Australia
Telephone (02) 6276 6436 ABN 41 687 119 230
Email: beth.maloney@csiro.au

20 October 2016
Our ref: FOI 2015/34(a) IC REVIEW SAMPLE DECISION
Ms Bev Butler
<physical address removed for privacy>
Dunedin New Zealand
Via Email c/o: <email address removed for privacy>@oaic.gov.au
Dear Ms Butler,
FREEDOM OF INFORMATION REQUEST DECISION SAMPLE
Your request
On 22 October 2015, you sought access under the Freedom of Information Act 1982 (FOI Act) to:
Information for all ionization smoke alarms tested by the CSIRO in accordance with AS2362.17 that are
listed on the CSIRO's ActivFire website as at the date of this transmission:
1. Make and model number of each ionization alarm.
2. The MIC 'X' and smoke density at which each actuating device entered the alarm state as required to
be recorded by the CSIRO in Section 7 of AS2362.17.
On 20 September 2016 the Office of the Australian Information Commissioner (OAIC) requested I provide a
decision in relation to a sample of five (5) testing reports, noting you revised your request to the appendices
of the testing reports.
Decision maker
I am an authorised decision maker under section 23 of the FOI Act. This letter sets out my decision and
reasons for the decision in relation to your application.
Decision
I have determined that documents 1 5 are exempt, in part, from the operation of the FOI Act, pursuant to
s7 (2).
I have further determined, that documents 1 5 are irrelevant, in part, to the scope of your request, and
those parts can be removed pursuant to s 22.
Reasons for decision
My findings of fact and reasons for my decision are set out below.

Materials taken into account

The materials, information and advice to which I have had reference in making this decision are:
i.
ii.
iii.
iv.
v.

the terms of your FOI request;

the content of the document in issue;
the relevant provisions of the FOI Act;
guidelines issued by the Office of the Australian Information Commissioner under s 93A of the FOI Act
(the Guidelines) and
relevant case law.

Section 22 Access to edited copies with exempt or irrelevant matter deleted

Section 22 of the FOI Act provides:
(1)

This section applies if:

(a) an agency or Minister decides:
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access; and
(b)

it is possible for the agency or Minister to prepare a copy (an edited copy ) of the document,
modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A (access to
documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably be regarded
as irrelevant to the request; and

(c)

it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard
to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and

(d)

it is not apparent (from the request or from consultation with the applicant) that the applicant
would decline access to the edited copy.

Access to edited copy

(2)

The agency or Minister must:

(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.

I have decided that parts of documents 1 - 5 are irrelevant to your request and those parts are therefore
removed under section 22. I have decided that I can easily prepare an edited copy of the documents with
the irrelevant material deleted and have done so.
Exemptions:
Commercial activities s 7 of the FOI Act
Section 7(2) states that CSIROs documents that relate to CSIROs commercial activities are exempt from
the operation of the FOI Act.
Commercial activities is defined under s 7(3)(a)&(b) as:
(a) activities carried on by an agency on a commercial basis in competition with persons other than
governments or authorities of governments; or

(b) activities, carried on by an agency, that may be reasonably be expected in the foreseeable future
to be carried on by the agency on a commercial basis in competition with persons other than
governments or authorities of governments.
The application of s 7(2), specifically to documents of CSIRO, has been considered by the Federal Court and
the AAT.
In Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 ('Bell') the applicant
had requested, in summary, copies of research proposals and/or grant applications, contracts, presentation
etc concerning wireless or LAN networks. CSIRO refused the request on the grounds of the exemption
contained in s 7(2). This was upheld by the AAT member. The Full Federal Court affirmed the tribunal's
reasoning, which is summarised as follows:
'the Tribunal said at [126] (see 20 above) that activities are conducted on a commercial basis if they are related
to, engaged in or used for commerce [and] the Tribunal also emphasised the importance of the whole of the
circumstances including the commercial goal (profit making or the generation of income or return) in
determining whether particular activities are sufficiently related in commerce to be characterised as
commercial activities'

In Bell consideration was also given to s 7(3)(b) of the FOI Act. The Federal Court in Bell held that if it could
be shown that a project/research could be reasonably expected in the foreseeable future to be carried on in
competition with other persons/corporations in pursuit of commercial returns, then that would satisfy the
'competition' element of the section.
Application of s 7 to the documents relevant to your request:
I have decided that parts of documents 1 - 5 are exempt from the operation of the FOI Act under s 7(2) as
they relate to CSIRO's commercial activities.
CSIRO is committed to conducting world class scientific and industrial research consistent with its roles and
functions as outlined in the Science and Industry Research Act 1949 (Cth). To ensure the highest quality of
scientific research, CSIRO forms national and international partnerships with government, industry, academic
and community stakeholders. CSIRO has partnerships with industry and as such performs research and
development with our world class scientists and facilities. CSIRO often undertakes this research for a fee in
order to recognise the value of that work (which would be performed for a fee by any privately owned
research organisation) and to reduce the cost to the Australian community of undertaking its research
activities.
In this case, CSIRO has undertaken research/testing described in the documents with commercial
organisations, namely national and international manufacturers and retailers of smoke detectors. The
commercial organisations are paying/paid a fee to CSIRO for the conduct of that research and development
and CSIRO are in direct competition with non-government entities.
CSIRO conducts this research and testing now, and in the foreseeable future, in competition with nongovernment entities. Including SAI Global, which tests smokes alarms to the ISO12239, the equivalent
international standard to AS3786-2014. Further evidence of CSIROs competition include, the testing by
Underwriters Laboratories based in New Zealand (apx 2010) of smoke alarms which were subsequently sold
in Australia. Although the Underwriters laboratory in New Zealand has now closed, it is clear that CSIRO has
international competition in the area of testing of smoke alarms. The basis for claiming a continued high
potential for internally and nationally based competition in the foreseeable future, is reasonable, given the
previous competitors in NZ and current competitors, internationally.
I therefore find that parts of documents 1 - 5 are exempt from the operation of the FOI Act under s 7(2).

Rights of Review
I note, given the OAIC has requested this decision, the usual review rights may not be available. However, to
ensure that this decision is valid, in accordance with section 26(1)(c) of the FOI Act, a statement setting out
your rights of review under the Act is at Attachment A.
Kind regards,
Beth Maloney
Legal Counsel
CSIRO

Attachment A
Review rights
You are entitled to seek review of this decision.
Internal Review
Firstly, under section 54 of the FOI Act, you may apply for an internal review of the decision. Your application
must be made by whichever date is the later between:
30 days of you receiving this notice; or 15 days of you receiving the documents to which you have been
granted access.
An internal review will be conducted by a different officer from the original decision-maker. No particular
form is required to apply for review although it will assist your case to set out in the application the grounds
on which you believe that the original decision should be overturned. An application for a review of the
decision should be addressed to:
FOI@csiro.au
If you choose to seek an internal review, you will subsequently have a right to apply to the Australian
Information Commissioner for a review of the internal review decision.
External review by the Australian Information Commissioner
Alternatively, under 54L of the FOI Act, you may seek review of this decision by the Australian Information
Commissioner without first going to internal review. Your application must be made within 60 days of you
receiving this notice.
The Information Commissioner is an independent office holder who may review decisions of agencies and
Ministers under the FOI Act. More information is available on the Information Commissioner's website
www.oaic.gov.au.
You can contact the Information Commissioner to request a review of a decision online or by writing to the
Information Commissioner at:
GPO Box 2999
Canberra ACT 2601
Complaints to Ombudsman or Information Commissioner
You may complain to either the Commonwealth Ombudsman or the Information Commissioner about action
taken by CSIRO in relation to the application. The Ombudsman will consult with the Information
Commissioner before investigating a complaint about the handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
Phone 1300 362 072 (local call charge)
Email ombudsman@ombudsman.gov.au
Your enquiries to the Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email enquiries@oaic.gov.au
There is no particular form required to make a complaint to the Ombudsman or the Information
Commissioner. The request should be in writing and should set out the grounds on which it is considered
that the action taken in relation to the request should be investigated and identify CSIRO as the relevant
agency.

Attachment B
FOI 2015/34(a) - Document Schedule
Doc
No
1.

Date

Description

No of Pages

Section of
Act
s22
s7

Decision

5 April 2013

Conformity Evaluation of the QCE Model SA1000 Ionization Smoke Alarm to

the requirements of AS 3786-1993 (incorporating amendments 1 to 4) Smoke
Alarms

14

2.

August 2010

LIFESAVER Model LIF5800 Photoelectric Smoke Alarm to AS 3786-1993

(incorporating amendments 1 to 4) Smoke Alarms

37

s22
s7

Part irrelevant,
Part exempt.

3.

October 2009

Quell Model Q910 Ionisation Smoke Alarm to AS 3786-1993 (inc amdt 1 to 4)

14

April 2007

Evaluation for Conformity Kidde model 0910AUS to AS 3786-1993 (inc. amdt

1 to 4)

24

s22
s7
s22
s7

Part irrelevant,
Part exempt.
Part irrelevant,
Part exempt.

4.
5.

December 2006

Evaluation for Conformity Eyston model SD-1792 Smoke Alarm to AS 37861993 (including amendments 1 to 4)

24

s22
s7

Part irrelevant,
Part exempt.

Part irrelevant,
Part exempt.

Document 1

Document 3

Document 4

Document 5