Our reference: LEX 659
Becky
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Freedom of Information Internal Review Request – LEX 659
1. I am writing about your request for internal review, dated 28 September 2023, regarding a
decision made by the Australian Public Service Commission (
Commission) under the
Freedom of Information Act 1982 (
FOI Act).
Background
2. On 12 August 2023, you requested the following documents from the Commission under
the FOI Act:
I request access to all freedom of information decisions made by officials in the Australian
Public Service Commission between 1 January 2023 and 30 June 2023, inclusive.
3. On 17 August 2023 you agreed to the Commission’s request to refine the scope of the request
and reduced the scope to between 1 April 2023 and 30 June 2023, inclusive.
4. On 30 August 2023, you were notified of third party consultation.
5. On 27 September 2023, the relevant authorised Freedom of Information (
FOI) decision
maker, Ms Melanie McIntyre, made a decision to release four documents in part and to
refuse access to seven documents (the Original Decision).
6. On 28 September 2023, you sought an internal review of Ms McIntyre’s decision in
respect of documents 1 - 7.
Decision
7. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
8. I am satisfied the documents are partially exempt documents on the grounds described in
Attachment A and agree with the reasons set out in Attachment B to the Original
Decision.
9. I therefore
affirm Ms McIntyre’s earlier decision to refuse your request for access to
documents under sections 22, 47E and 47F of the FOI Act.
10. The reasons for my decision are set out in
Attachment A.
Deletion of exempt matter or irrelevant material
11. Section 22 of the FOI Act requires an agency to provide access to an edited version of a
document where it is reasonably practicable to edit the document to remove exempt
material or material that is irrelevant to the scope of the request.
12. Relevant to deleting exempt or irrelevant content from a document, the FOI Guidelines
provide:
3.98 Applying those considerations, an agency or minister should take a common sense
approach in considering whether the number of deletions would be so many that the
remaining document would be of little or no value to the applicant. Similarly, the purpose
of providing access to government information under the FOI Act may not be served if
extensive editing is required that leaves only a skeleton of the former document that
conveys little of its content or substance.
13. I consider the objects of the FOI Act will not be served by providing access to an edited
version of the exempt documents because extensive editing is required that would leave
only a skeleton of the former documents, conveying little content or substance.
Contacts
14. If you require clarification on matters in this letter, please contact the Commission’s FOI
Officer by email a
t xxx@xxxx.xxx.xx.
Review rights
15. You are entitled to seek review of this decision. Your review rights are set out at
Attachment B.
Yours sincerely
Mr Shyam Raghupathi
Authorised FOI decision maker
27 October 2023
ATTACHMENT A
Reasons for Decision
16. In reaching my decision, I have considered:
• the terms of your request
• the relevant documents;
• the third-party consultation;
• the FOI Act; and
• the FOI Guidelines.
Section 47E- Certain operations of agencies
17. Section 47E of the FOI Act provides that a document is conditionally exempt if it would, or
could, reasonably be expected to, prejudice or have a substantial adverse effect on certain
listed agency operation.
18. In particular, under section 47E(d) a document is conditionally exempt if its disclosure would,
or could be reasonably expected to, have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
19. Consistent with the original decision, I consider disclosure of content of certain requests in the
decision notices would be likely to have a larger effect of inhibiting or discouraging
Commission staff and other Commonwealth staff to freely and effectively communicate on
the assessment of matters under the
Public Service Act 1999 (PS Act) or under the
Public
Interest Disclosure Act 2013 (PID Act).
20. Further, I consider disclosure of the information contained in those parts of documents 1- 7
could reasonably affect the willingness of people to make complaints or raise concerns under
these Acts.
21. Should individuals be unwilling or unable to effectively participate in these matters, I consider
that this would ultimately have a substantial adverse effect on the Commission’s ability to:
• carry out its obligations under the PID Act, including its ability to ensure that
allegations of misconduct are being investigated and where necessary take appropriate
action in a proper and efficient manner; and
• carry out its obligations and investigative functions under the PS Act.
Section 47F- Personal Privacy
22. Section 47F of the FOI Act provides that a document is conditionally exempt if it would
involve the unreasonable disclosure of personal information about any person.
23. Personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable whether:
• the information or opinion is true or not; and
• the information or opinion is recorded in a material form or not.
24. I am satisfied that documents 1 -7 contain personal information including names and email
addresses.
25. In considering whether disclosure of that personal information would be unreasonable, section
47F(2) of the FOI Act requires me to 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 I consider relevant.
26. This further requires consideration of all of the circumstances. The Administrative Appeals
Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437
AT [51] outlined:
‘….whether a disclosure is ‘unreasonable’ requires…a consideration of all the circumstances,
including the nature of the information that would be disclosed, the circumstances in which
the information was obtained, the likelihood of the information being information that the
person concerned would not wish to have disclosed without consent, and whether the
information has any current relevance…and to weigh that interest in the balance against the
public interest in protecting the personal privacy of a third party…’
27. I have considered the above factors, and particularly the extent to which the information in the
documents is already well-known and in the public domain. On that basis, consistent with the
original decision, I find that disclosure of the personal information contained in documents 1-
7 would be unreasonable. I am also not satisfied there would be public interest served in
disclosure of this particular information, versus the public interest in maintaining the third-
party’s personal privacy. This is because either:
• the individuals’ personal information, in particular their name, will identify them;
• the personal information is unique and relates specifically to the individuals, and is
generally not well known or publicly available; the FOI Act does not control or
restrict the subsequent use or dissemination of information released under the FOI
Act; or
• release of the individuals’ personal information may cause stress for them or other
detriment; and disclosure would prejudice the individuals’ right to privacy.
28. However, in accordance with section 11(A)5 of the FOI Act, I must nevertheless give access
to the conditionally exempt information unless in the circumstances it would be, on balance,
contrary to the public interest to do so. My consideration of the public interest is below.
Public interest considerations
29. Subsection 11A(5) of the FOI Act provides:
‘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’.
30. In weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure at section 11B(3). In
particular, I have considered the extent to which disclosure would:
• promote the objects of the FOI Act;
• inform debate on a matter of public importance; and
• promote effective oversight of public expenditure.
31. I have identified the following factors as weighing against disclosure:
• disclosure could reasonably be expected to prejudice the privacy of any third party
individuals
• disclosure of any third party individual’s personal information or parts of their FOI
request will not advance the scrutiny of any decisions falling within scope of your
FOI request
• the disclosure of certain information could be expected to have a substantial
adverse effect on the proper and efficient conduct of the operations of the
Commission.
32. On balance, I consider disclosure of the conditionally exempt information in documents 1 - 7
would be contrary to the public interest, and so the information is exempt from disclosure
under section 47F of the FOI Act.
ATTACHMENT B
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek external review. Before you seek
review of a Freedom of Information (
FOI) decision, you may contact us to discuss your
request and we will explain the decision to you.
Applying for external review by the Australian Information Commissioner
If you do not agree with the internal review decision, you can ask the Australian Information
Commissioner to review the decision. You have 60 days to apply in writing for a review by
the Office of the Australian Information Commissioner (
OAIC) from the date you received
this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website:
www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
Document Outline
