OFFICIAL
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2023/138
To Gemma
Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Gemma
I refer to your request to the Department of the Prime Minister and Cabinet (the Department), under
the
Freedom of Information Act 1982 (the FOI Act), received on 10 May 2023.
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
Scope of request
You set out your request in the following terms:
1. Please provide a copy of the department’s current procedures for determining breaches of
the APS Code of Conduct and the imposition of sanctions that is currently in force.
2. Please provide a copy of the department’s current social media policy (which covers
departmental use and/or private use by employees in an individual capacity).
3. Provide a provide a copy of the department’s current guidance material which is available
for employees to make informed decisions about their private social media use.
4. Provide a copy of guidance/information provided to your employees regarding expectations
on their conduct in the lead up to the Voice Referendum.
5. Please advise:
A) In the last 6 months, have you received a complaint regarding social media post made by
an employee?
B) In the last 6 months, how many complaints have you received regarding social media
post made by your employees?
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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OFFICIAL
On 21 May 2023, the Department advised you that the Procedures for determining breaches of the
APS Code of Conduct and the imposition of sanctions is available on the Department’s website at:
Procedures for determining breaches of the APS Code of Conduct and the imposition of sanctions |
PM&C (pmc.gov.au)
As the document was provided to you under administrative access, and through the provision of the
above link, Part 1 of your request is not included as part of the FOI decision. Material maintained by
agencies for reference purposes and which is publicly available is not subject to the FOI Act (section 4
of the FOI Act refers).
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Material taken into account
In reaching my decision I referred to the fol owing:
• the terms of your request
• searches undertaken by the Department
• the documents relevant to your request
• the FOI Act
• the Guidelines issued by the Information Commissioner
1 (the FOI Guidelines)
Documents in scope of request
The Department has identified three documents that fal within the scope of Parts 2 to 4 of your
request. These documents are set out in the Schedule of Documents at Attachment A.
Further information relating to the Department’s use of social media and moderation guidelines can
be found on the Department’s website at:
Social media | PM&C (pmc.gov.au)
There were no documents found to be relevant to Part 5 of your request.
Decision
Part 5
I have decided to refuse Part 5 of your request under s 24A(1) of the FOI Act, on the grounds that the
Department has taken al reasonable steps to locate the documents you have requested, and those
documents do not exist.
Reason for decision
My findings of fact and reasons for refusing the request t is set out below.
1 s 93A of the FOI Act
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OFFICIAL
Section 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
In determining what the FOI Act means with respect to ‘al reasonable steps’, I have had regard to the
Guidelines which discusses the meaning of ‘reasonable’ in s 24A(1)(a). It is not designed to go beyond
the limit assigned by reason, not to be extravagant or excessive, rather to be moderate and of such an
effort to be appropriate or suitable to the circumstances
2.
The Department has conducted searches, for any relevant records that would meet the terms of Part 5
of your request. There were no documents found to be in the possession of the Department. That is,
the Department has not received any complaints regarding social media posts made by an employee.
Based on my knowledge of the subject matter connected to your FOI request, and in my role as Chief
People Officer, People Branch, I am satisfied that the Department does not hold the documents you
have requested.
I am satisfied reasonable steps were taken to find the documents, however no documents relevant to
your request have been identified.
Accordingly, I am refusing Part 5 of your request as documents do not exist.
Part 2 to 4
Reason for decision
My findings of fact and reasons for deciding that certain information is exempt or irrelevant is set out
below.
I have decided to grant access to two documents in full and one document in part, with exempt and
irrelevant material deleted, on the basis that Document 2 contains information exempt under section
47E (Certain operations of agencies).
1.
Certain operations of agencies (section 47E(d) of the FOI Act)
Section 47E(d) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to…
2 3.88 of the FOI Guidelines
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OFFICIAL
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraphs 6.101 and 6.103 of the FOI Guidelines state:
For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably expected to
occur. The term ‘could reasonably be expected’ is explained in greater detail in Part 5. 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. The particulars
of the predicted effect should be identified during the decision making process, including whether
the effect could reasonably be expected to occur. Where the conditional exemption is relied
upon, the relevant particulars and reasons should form part of the decision maker’s statement of
reasons, if they can be included without disclosing exempt material.
Having regard to the nature of the specific information, I am satisfied that part of Document 2
contains information which, if disclosed, would or could reasonably be expected to have a substantial
adverse effect on the proper and efficient conduct of the operations of the Department.
The information consists of an operational email address used by the Department which is not
publicly available. I consider that the disclosure of the email address would, or could reasonably be
expected to, result in potential vexatious communication and public inquiries being received which
would compromise the day to day operations of the Department. This is because the team that
manages the email account is not resourced to triage and manage public communications. I note that
there are established channels of communication available for media and members of the public to
contact government agencies.
Accordingly, I am satisfied that these parts of the documents are conditional y exempt under section
47E(d) of the FOI Act.
2.
Public interest
The FOI Act provides that a conditional y exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest
3. In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
As I have decided that part of Document 2 is conditional y exempt, I am now required to consider the
public interest factors, in doing so I have not taken into account the irrelevant factors as set out in s
11B(4) of the FOI Act, this includes:
3 s 11A(5) of the FOI Act
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OFFICIAL
a) access to the document could result in embarrassment to the Commonwealth Government, or
cause a loss in 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 documents 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
In applying the public interest, I have noted the objects of the FOI Act
4 and the factors favouring
access as listed in s 11B(3) of the FOI Act. Having regard to the material before me and the
circumstances of the documents found to be conditional y exempt I am satisfied of the fol owing:
• access would promote the objects of the FOI Act
5
• access to the conditional y exempt information would not inform debate on a matter of public
importance
• the subject matter within the conditional y exempt document does not seem to have the
character of public importance, rather the matter has very limited scope and may only be of
interest to a narrow section of the public
• the subject matter within the conditional y exempt documents does not offer any insights into
public expenditure
The FOI Act does not set out any public interest factors against disclosure and require that agencies
are to have regard to the FOI Guidelines in order to work out if disclosure would, on balance, be
contrary to the public interest
6. The FOI Guidelines contain a non-exhaustive list of factors that,
depending on the circumstances of the documents found to be conditional y exempt, may weigh
against disclosure.
The main factor against disclosure in this case is that disclosure of the information would affect the
ability of the Department’s IT Security team to manage their day to day operations if the email
account was made public, as disclosure of the email address would or could result in potential y
vexatious communication and public inquiries being received, which the Department is not resourced
to manage.
After careful consideration of al relevant factors, I have decided that, on balance, the factors against
disclosure outweigh those favouring disclosure. Accordingly, I am of the view that disclosure of the
conditional y exempt part of requested document would be contrary to the public interest.
3.
Deletion of irrelevant matter
Section 22 of the FOI Act provides that if giving access to a document would disclose information that
would be reasonably regarded as irrelevant to the request, it is possible for the Department to
4 s 3 of the FOI Act
5 s 11B(3)(a) of the FOI Act
6 s 11B(5) of the FOI Act
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OFFICIAL
prepare an edited copy of the document, modified by deletions, ensuring that the edited copy would
not disclose any information that would reasonable be regarded as irrelevant to the request.
On 21 May 2023, the Department advised you of its policy to exclude the personal and direct contact
details of officers not in the Senior Executive Service (SES) and any Ministerial staff, as well as any
person’s signature, and the mobile or direct numbers of SES officers, which are contained in
documents that fal within the terms of an FOI request. This category of information is identified as
irrelevant and documents can be modified by the Department to delete the irrelevant material.
Accordingly I am satisfied that parts of the document are irrelevant under section 22(1)(a)(i ) of the FOI
Act. The remainder of the document has been released to you as it is relevant to your request.
Review rights
If you disagree with my decision, you may apply for internal review or Information Commissioner
review of the decision.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Department for an internal review of
my decision. The internal review application must be made within 30 days after the date of this letter.
Where possible please attach reasons why you believe review of the decision is necessary. The internal
review wil be carried out by another officer within 30 days from the date it is received.
Applications for review should be sent to
xxx@xxx.xxx.xx.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days after the date of this letter.
More information about Information Commissioner review is available
here.7
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. If you are not satisfied with our response, you can make a complaint to the
Australian Information Commissioner. A complaint to the Information Commissioner must be made in
writing. More information about complaints is available
here.8
7 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-
reviews/information-commissioner-review
8 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-
complaints/make-an-foi-complaint
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OFFICIAL
If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx. Yours sincerely
Melinda Bopping
Chief People Officer
People Branch
Department of the Prime Minister and Cabinet
7 June 2023
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