Our ref: FOI-2023-10048
7 July 2023
Mr James Andrew Douglass
By email to:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear James Andrew Douglass
Freedom of Information request – Part access decision
I refer to your request of 20 April 2023 made to this Office under the
Freedom of Information Act
1982 (FOI Act). Your request was for access to documents in the following terms:
Under the FOI Act I request access to documents in the possession of the Office of the
Commonwealth Ombudsman relating to Iain Anderson’s appointment as Commonwealth
Ombudsman.
I apologise for the delay in processing your request. On 19 May 2023 and again on 19 June 2023, this
Office contacted you to advise of the delay and request additional time to process your request.
On 10 June 2023, you applied for Information Commissioner review (IC review) of the deemed
refusal of access decision, which occurred on 29 May 2023.
Decision
I am an officer authorised under s 23 of the FOI Act to make decisions in relation to FOI requests.
This letter constitutes my notice of decision. I make this decision varying the access refusal decision
of 29 May 2023 under s 55G(1) of the FOI Act.
The Office has conducted searches of its electronic case management, records management and
email communication systems for any documents this Office holds that are within the scope of your
request.
I have identified six (6) documents, totalling 11 pages that are within the scope of your request.
I have decided:
• To grant access to 3 documents in full, and
• To grant access to 3 documents in part.
My reasons for the decision and findings of fact are set out at
Attachment A. A schedule setting out my decision in relation to the relevant documents is at
Attachment B.
Information about your review rights is at
Attachment C.
GPO Box 442 Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ www.ombudsman.gov.au
40786186
Given the IC review application, our Office will notify the Information Commissioner of its revised
decision.
Contacts
You may contact me via em
ail at xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on
1300 362 072.
Yours sincerely
Steven Mulipola
Senior Legal Officer
Legal Team
Influencing systemic improvement in public administration
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ATTACHMENT A
Reasons for decision – FOI 2023-10048
Material taken into account
In making my decision I had regard to the fol owing:
• the terms of your request dated 20 April 2023
• the content of the documents to which you sought access
• consultations with relevant Ombudsman officers
• consultations with Australian government agencies, including the Attorney-General’s
Department
• relevant provisions of the FOI Act
• Office of the Australian Information Commissioner’s (OAIC) Freedom of Information
Guidelines available
at www.oaic.gov.au (the Guidelines), and
• relevant court, Administrative Appeal Tribunal and Australian Information Commissioner
decisions.
Findings of fact and reasons for decision
Where the schedule of documents at
Attachment A indicates that an exemption has been applied to
a document, or part of a document, my findings of fact and reasons for deciding that the exemption
provision applies to that document, or part of that document, are set out below.
Conditional exemption – certain agency operations: s 47E
Section 47E of the FOI Act relevantly provides that:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to,:
…
(d)
have a substantial adverse effect on the proper and efficient conduct of the operations of the
agency.
Ombudsman staff names, direct phone numbers and email addresses
The documents contain the names, direct phone numbers and direct email addresses of
Ombudsman and Remuneration Tribunal (Tribunal) staff. The Ombudsman and Tribunal have
established contact points and procedures in place for members of the public to communicate with
it. Disclosure of direct contact details would undermine this and could impede the Ombudsman’s
and Tribunal’s functions. The OAIC has found that the direct contact details of Ombudsman staff,
including names, direct phone numbers and direct email addresses are conditionally exempt under s
47E(d) of the FOI Act:
ABK and Commonwealth Ombudsman [2022] AICmr 44.
Where so indicated on the Schedule of Documents, I have decided that the documents are
conditional y exempt under subsection 47E(c) and/or alternatively s 47E(d) of the FOI Act.
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40786186
Public interest
Section 11A(5) of the FOI Act provides an agency must give a person access to a document that is
conditional y exempt at a particular time, unless, in the circumstances, disclosure would, on balance,
be contrary to the public interest.
In considering whether access would, on balance, be contrary to the public interest, I have
considered the factors for and against disclosure, including the factors identified in s 11B(3) of the
FOI Act. I have also considered the public interest factors favouring and against disclosure in the FOI
Guidelines [6.17 – 6.19] and [6.22], as well as matters particular to the Ombudsman’s functions and
operating environment.
Factors favouring disclosure include that disclosure would:
• Promote the objects of the FOI Act, including to:
o inform the community of the Government’s operations, including, in particular, the
practices followed by the Government in its dealings with members of the
community
o reveal the reason for a government decision and any background or contextual
information that informed the decision
o enhance the scrutiny of government decision making; and
• inform debate on a matter of public importance.
Factors against disclosure include that disclosure could:
• reasonably be expected to prejudice the protection of an individual’s right to privacy
• reasonably be expected to affect the ability of staff members to fulfil their duties
• have a substantial adverse effect on the management of Office personnel
• reasonably be expected to prejudice the proper and efficient conduct of investigations by
the Ombudsman (see FOI Guidelines 6.22(l))
I have considered the factors for and against disclosure and find, on balance, that the factors against
disclosure outweigh the factors in favour of disclosure. I have given greater weight to the proper and
efficient conduct of Ombudsman’s and Tribunal’s functions and processes not being impeded.
Disclosure would not at this time be in the public interest.
Conditional exemption – personal privacy: s 47F
Section 47F of the FOI Act conditional y exempts a document to the extent that its disclosure would
involve the unreasonable disclosure of personal information about any person.
Personal information
‘Personal information’ is relevantly defined in section 4 of the FOI Act as:
information or an opinion about an identified individual, or an individual who is reasonably
identifiable: (a) whether the information or opinion is true or not; and (b) whether the
information or opinion is recorded in a material form or not.
The documents contain personal information in the form of staff names and contact details
(including ful name, direct phone number and direct email address) and signatures of Tribunal staff.
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I am satisfied that the relevant information is personal information as defined in s 4 of the FOI Act.
The individuals are identifiable or reasonably identifiable from the relevant information.
Disclosure unreasonable
A document will be conditionally exempt if its disclosure would involve the ‘unreasonable’ disclosure
of personal information. In considering whether disclosure would be unreasonable, subsection
47F(2) of the FOI Act requires that I take into account:
• the extent to which the information is well known
• 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
• the availability of the information from publicly accessible sources, and
• any other matter considered relevant.
I find that the relevant information is not wel known. The individuals to whom the information
relates are not general y known to be associated with the relevant information. The relevant
information is not readily available from public sources, particularly direct staff contact details. The
relevant names and position titles are specific to the relevant individuals.
There is no presumption that inclusion of ful names of staff on documents increases transparency
and the objects of the FOI Act:
Warren; Chief Executive Officer, Services Australia and (Freedom of
Information) [2020] AATA 467, [83]. Disclosure of a public servant’s personal information can be
unreasonable in accordance with s 47F of the FOI Act. I find that it would be unreasonable in this
case.
In my view, disclosure of non-senior executive staff member’s names and direct contact details,
including email addresses and phone numbers, could subject the relevant staff to the possibility of
inappropriate contact from complainants or other individuals. The contact details of junior staff are
generally not available on public directories. The Office has established contact points for receiving
public enquiries. The FOI Act does not restrict any further dissemination of information released
under the FOI Act once released. The staff involved have not consented to the disclosure of their
personal information or contact details.
Accordingly, where indicated on the Schedule below, I have formed the view that the names,
signatures and direct contact details of APS staff is conditionally exempt under s 47F(1) of the FOI
Act. In my view, release would involve the unreasonable disclosure of personal information.
Public interest
In deciding whether access should be given to this information on the basis of public interest I have
taken a number of matters into account. These matters include the public interest factors for and
against disclosure as outlined in s 11B(3) of the FOI Act, the FOI Guidelines at paragraphs 6.17 – 6.22,
as well as matters specific to this agency’s functions and operating environment.
The following factors favour disclosure:
• Access would promote the objects of the FOI Act, as explained above;
The following factors mitigate against disclosure:
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40786186
• could reasonably be expected to prejudice the protection of a person’s right to privacy;
• could reasonably be expected to impede the Office’s work health and safety obligations
under the
Work Health and Safety Act 2011 (Cth);
• could reasonably be expected to prejudice security, law enforcement, public health or public
safety
• could reasonably be expected to result in inappropriate contact resulting in inefficiencies in
this Office.
I have given more weight to the protection of an individual’s right to privacy, the proper means of
contact for agency officers, and relevant work, health and safety obligations. Under subsection
11A(5) of the FOI Act, I have concluded that the identified documents are not required to be
disclosed because disclosure at this time would be, on balance, contrary to the public interest.
Deletion of exempt/irrelevant matter: s 22
Section 22 of the FOI Act allows an agency to delete exempt or irrelevant matter from a document
relevant to an applicant’s FOI request and to provide an applicant with access to an edited copy,
where it is reasonably practicable to prepare the edited copy: s 22(1)(c) of the FOI Act.
As I have found that the document contains information which is irrelevant to the request, I have
deleted that information accordingly. You will be provided with access to an edited version of the
document.
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40786186
Attachment B
Schedule of documents – Freedom of Information Request FOI-2023-10048
Doc
Date
Pages/
Description of Document
Decision on access
Exempt or irrelevant material
No.
Folio
1.
10/06/2021
4
Candidate Information Pack
Ful access
2.
Undated
1
Commonwealth Ombudsman – Advertisement
Ful access
3.
13/04/2022
1
Attorney-General’s Department – Cost Recovery for
Part access
Conditional y exempt under s 47E(c)
Ombudsman Appointment Process – Invoice
substantial adverse effect on
6129006
management of personnel and s
47E(d) (substantial adverse effect on
operations of agencies)
Conditional y exempt under s 47F
(unreasonable disclosure of personal
information)
4.
21/07/2022
1
Commonwealth Ombudsman – Instrument of
Ful access
Appointment 2022
5.
21/07/2022
2
Internal email – appointment of Iain Anderson as
Part access
Conditional y exempt under s 47E(c)
Ombudsman
substantial adverse effect on
management of personnel and s
47E(d) (substantial adverse effect on
operations of agencies)
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Schedule of documents – Freedom of Information Request FOI-2023-10048
Doc
Date
Pages/
Description of Document
Decision on access
Exempt or irrelevant material
No.
Folio
Conditional y exempt under s 47F
(unreasonable disclosure of personal
information)
6.
21/07/2022
2
Intranet Post: Our New Ombudsman – Iain Anderson
Part access
Conditional y exempt under s 47E(c)
substantial adverse effect on
management of personnel and s
47E(d) (substantial adverse effect on
operations of agencies)
Conditional y exempt under s 47F
(unreasonable disclosure of personal
information)
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ATTACHMENT C
REVIEW RIGHTS
Internal review
You can request internal review within 30 days of you receiving this decision. 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 the
grounds on which you believe that the original decision should be changed. Applications for internal
review can be made:
• via email to
xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx
• by mail to Commonwealth Ombudsman GPO Box 442 Canberra ACT 2601
If you choose to seek an internal review, you will afterward have a right to apply for Information
Commissioner review (IC review) of the internal review decision.
Information Commissioner review or complaint
You also have the right to seek IC review of this decision. For FOI applicants, an application for IC
review must be made in writing within 60 days of the decision. For third parties who object to
disclosure of their information, an application for IC review must be made in writing within 30 days
of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a
complaint with the OAIC. However, the OAIC suggests that complaints are made to the agency in
the first instance.
While there is no particular form required to make a complaint to the OAIC, the complaint should be
in writing and set out the reasons for why you are dissatisfied with the way your request was
processed. It should also identify the Ombudsman’s Office as the agency about which you are
complaining.
You can make an IC review application or make an FOI complaint in one of the following ways:
• online at https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
• via email to
xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is available
at its website:
www.oaic.gov.au/freedom-of-information/foi-review-process.
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Document Outline
