Reference:
FOI 23-24/017
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
Dr Exmond DeCruz
Development Catalyst
ProSocial World
via Right to Know website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Dr DeCruz,
Freedom of Information Request – FOI 23-24/017
On 4 August 2023, the Department of Finance (Finance) received your email, in which you
sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) as
outlined in
Attachment A.
The purpose of this letter is to provide you with notice of my decision under the FOI Act.
Publicly available information which may assist your request
While at a higher level of aggregation than sought in your request, the Australian Public
Service Commission publishes information including:
• ‘State of the Service’ reports which are tabled before each House of Parliament and
published on the APSC website at
https://www.apsc.gov.au/initiatives-and-
programs/workforce-information/research-analysis-and-publications/state-service.
• Data from Australian Public Service (APS) Census surveys which can be accessed
on the data.gov website a
t https://data.gov.au/organisations/org-dga-f1e2677b-b377-
42b0-a492-6dc88330a79a.
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have identified four (4) documents as falling within the scope of your request.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
I have decided to refuse to release all four documents as they contain information that, if
released, would affect certain operations of Finance.
In making my decision, I have had regard to the following:
• the terms of your FOI request;
• the content of the documents that fall within the scope of your request;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Documents exempt as they affect certain operations of agencies
Section 47E of the FOI Act provides that
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency;
The FOI Guidelines provide that for this exemption to apply, the documents must relate to
either: the management of personnel – including the broader human resources policies and activities,
recruitment, promotion, compensation, discipline, harassment and occupational health and safety
the assessment of personnel – including the broader performance management policies and activities
concerning competency, in-house training requirements, appraisals and underperformance,
counselling, feedback, assessment for bonus or eligibility for progression.
The APS Census is a voluntary annual survey of all APS staff which seeks to confidential
attitude and opinion information from APS employees on important issues in the workplace.
The APS Census is a key mechanism through which employees may provide candid and
confidential feedback to Finance in a de-identified form. It is an important tool used by
Finance to make improvements to the workplace and inform workforce strategies, which I
consider to relate to both the management and assessment of personnel.
I consider that the release of this information could reasonably be expected to reduce
employee response rates and candour in responding to the survey, and therefore consider
that these documents are exempt under section 47E of the FOI Act.
Public interest test
Having formed the view that the four documents are exempt under both sections 47E of the
FOI Act, I am now required to consider the public interest test for the purposes of
determining whether access to the conditionally exempt documents would, on balance, be
contrary to the public interest.
Section 11A of the FOI Act provides:
5. The agency or Minister must give the person access to the document if it is conditionally exempt at
a particular time unless (in the circumstances) access to the document at that time would, on balance,
be contrary to the public interest.
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Factors favouring disclosure
Section 11B of the FOI Act provides:
3. Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:
a. promote the objects of this Act (including al the mat ers set out in sections 3 and 3A);
b. inform debate on a matter of public importance;
c. promote effective oversight of public expenditure;
d. allow a person to access his or her own personal information.
I consider that giving access to the documents would promote the objectives of the FOI Act
by providing access to documents held by an agency. I attribute minimal weight to this
factor as this objective applies to all documents, regardless of the effect of releasing the
documents.
Factors against disclosure
Paragraph 6.22 of the FOI Guidelines provides a non-exhaustive list of factors against
disclosure, of which, I consider the following could reasonably be expected to apply:
could reasonably be expected to prejudice the protection of an individual’s right to privacy,
could reasonably be expected to prejudice an agency’s ability to obtain confidential information
could reasonably be expected to prejudice an agency’s ability to obtain similar information in the
future
could reasonably be expected to prejudice the management function of an agency
The APS Census also collects and reports on personal information of employees including
sensitive personal information about disability and racial or ethnic characteristics. Further,
the opinions expressed by staff in the census survey, including of their managers, are also
personal information to which I consider employees (both respondents and the staff who
feedback is provided on) would have a reasonable expectation of privacy. Given the reports
you have requested have a relatively small number of surveyed respondents (less than 100
people), I consider that release could reasonably be expected to prejudice the protection of
employees right to privacy as there is meaningful risk that personal information could be
reidentified within the report particularly if used together with other sources of information.
The APS Census collects employee attitudes as to their role, workplace and management.
Employees are asked to provide candid reflections on their managers, observed or
experienced instances of harassment and bullying, experience of burnout and intentions to
leave their current position. I consider that, if these reports were to be released, it can be
reasonably expected that that some employees would elect not to provide voluntary
responses or be less candid in their responses, particularly if they are concerned that they are
expressing an unfavourable or minority opinion. I place substantial weight on these factors,
as I consider that protecting the ability for Finance to receive candid and confidential
feedback in such circumstances is particularly important to effectively manage staff.
The information you have requested would be released to the world at large as it would be
published on the Right to Know website, and the FOI Act does not control or restrict any
subsequent use or dissemination of any information that is released to you. I consider that
this heightens the factors against disclosure I have identified above, as it would increase the
likelihood of the information being accessed by a person able to match the reports to other
sources, and widely publishing these reports would be reasonably expected to reduce
employees confidence that the confidentiality of their feedback will be appropriately
handled by Finance.
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Irrelevant considerations
I have not taken into account any of the irrelevant factors listed under Section 11B of the
FOI Act:
4. The following factors must not be taken into account in deciding whether access to the document
would, on balance, be contrary to the public interest;
a. access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of 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 document was (or is) a 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.
Balancing the public interest factors
The FOI Guidelines provide:
[6.25] The decision maker must determine whether access to a conditionally exempt document is, at the
time of the decision, contrary to the public interest, taking into account the factors for and against
disclosure.
[6.27] To conclude that, on balance, disclosure of a document would be contrary to the public interest is to
conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public
of withholding the information.
Having identified one factor in favour of disclosure and multiple reasons against exposure,
including one factor which I place substantial weight on, I consider that on balance it is
contrary to the public interest to release the documents you have requested.
Charges
I have decided that a charge is not payable in this matter.
Review and appeal rights
You are entitled to request an internal review or an external review by the Office of the
Australian Information Commissioner (OAIC) of my decision. The process for review and
appeal rights is set out at
Attachment B.
If you have any questions in regards to this request, please contact the FOI Team on the
above contact details.
Yours sincerely,
Abby Whiting
Assistant Secretary
Human Resources Branch
Department of Finance
24 August 2023
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ATTACHMENT B
SCHEDULE OF DOCUMENTS RELEVANT TO FOI 23-24/017
Document Date of
No. of Description of Document
Decision
No.
Document
Pages
1
-
15
2015 APS Employee Census – Agency
Exempt in Full – s47E
Benchmark Report: Property and Construction
Division
2
-
33
Australian Public Service Employee Census
Exempt in Full – s47E
2018 – Highlights Report: Property and
Construction Division
3
-
33
Australian Public Service Employee Census
Exempt in Full – s47E
2019 – Highlights Report: Property and
Construction Division
4
-
23
Australian Public Service Employee Census
Exempt in Full – s47E
2020 – Highlights Report: Property and
Construction Division
5
ATTACHMENT B
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will carried
30 calendar days of being notified of our
out by a different decision maker, usually
decision to release your information.
someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
6
How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 17 February 2023 it is $1,011).
In your written correspondence, please
include the following:
Further information is accessible
here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessible
here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
External review (Information
The Ombudsman can also investigate
Commissioner Review)
complaints about action taken by agencies
For an ER, you must apply to the OAIC in
under the FOI Act. However, if the issue
writing. The OAIC ask that you commence a
complained about either could be, or has been,
review by completing their online form
here.
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
Your application must include a copy of the
being investigated twice. If the Ombudsman
notice of our decision that you are objecting
decides not to investigate the complaint, then
to, and your contact details. You should also
they are to transfer all relevant documents and
set out why you are objecting to the decision.
information to the IC.
Email: xxxxx@xxxx.xxx.xx
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
Post: Office of the Australian Information
occur where the FOI complaint is only one
Commissioner
part of a wider grievance about an agency’s
GPO Box 5218
actions. You will be notified in writing if your
Sydney NSW 2001
complaint is transferred.
The IC’s enquiries phone line is
Complaints to the Ombudsman should be
1300 363 992.
made online
here.
The Ombudsman’s number is 1300 362 072.
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Document Outline
