Louis Verhuizen
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 1414
Dear Applicant
Freedom of Information request
1.
I am writing about your Freedom of Information (FOI) request under the Freedom of
Information Act 1982 (FOI Act) made on 30 March 2025 for access to documents held by
the Australian Public Service Commission (the Commission).
2.
I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
3.
The FOI Act and other legislation referred in this letter is publicly available from
www.legislation.gov.au.
Scope of your request
4.
You requested access to documents in the following terms:
‘Under the Freedom of Information Act 1982 (Cth), I request the correspondence sent by
the APSC to the Office of the Commonwealth Ombudsman in response to the comments
and suggestions made by the PID team’s director (in the Ombudsman's office).’
Decision on your FOI request
5.
I am satisfied that all reasonable steps have been taken to locate documents relevant to
your request.
6.
I have identified one (1) document in scope of your request.
Document 1: Letter to Commonwealth Ombudsman
7.
I have decided to refuse access to this document because I consider it is exempt in full
under the FOI Act. Attachment A sets out the grounds on which I consider the document
is exempt.
8.
My reasons are set out in Attachment B to this notice.
Review rights
9.
You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
B Block, Treasury Building Parkes Place
West PARKES ACT 2600 GPO Box
3176 CANBERRA ACT 2600
Contacts
10. If you require clarification on matters contained in this letter please contact the
Commission’s FOI Officer by email at xxx@xxxx.xxx.xx.
Yours sincerely
Kylie Barber
Authorised FOI decision maker
29 April 2025
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document
Description
Exemption grounds
Letter to Commonwealth Ombudsman
Section 47E(d) (certain operations of agencies) and Section 47F
1
(personal privacy) apply.
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ATTACHMENT B
Reasons for decision
1.
I have decided to refuse access to Document 1 because I consider that it is exempt in
full.
2.
In making my decision I have had regard to:
the terms of your request;
the content of the document;
consultation with relevant agencies;
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner.
Exemptions
Section 47E(d) – certain operations of agencies
3.
Section 47E(d) of the FOI Act provides:
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 an agency.
4.
In determining whether disclosure “could reasonably be expected to” have a substantial
adverse effect, “could” is a less stringent standard than “would” and requires analysis
of the reasonable expectation, rather than the certainty, of an event, effect or damage
occurring.1
5.
A “substantial adverse effect” connotes an “adverse effect which is sufficiently serious
or significant to cause concern to a properly informed reasonable person”.2
“Substantial” in this context has been interpreted as including “loss or damage that is,
in the circumstances, real or of substance and not insubstantial and nominal”.3
6.
Document 1 includes communication between the Commission and the Commonwealth
Ombudsman in relation to a Public Interest Disclosure (PID) investigation. To enable
the Commonwealth Ombudsman, which has a critical oversight role in relation to PID
investigations, to properly and efficiently fulfil its functions, it is essential for
allegations, considered evidence and findings to remain confidential.
7.
I also consider disclosure of content of the document, outlined in Attachment A, 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 PID Act.
1 Paragraph 6.15 of the FOI Guidelines.
2 Thies and Department of Aviation [1986] AATA 141 at [24].
3 Paragraph 6.18 of the FOI Guidelines.
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8.
This view is supported by paragraph 6.114 of the FOI Guidelines, which provides:
The conditional exemption may also apply to a document that relates to a complaint
made to an investigative body. Disclosure of this type of information could reasonably
affect the willingness of people to make complaints to the investigative body, which
would have a substantial adverse effect on the proper and efficient conduct of the
investigative body’s operations. Further, disclosure of information provided in
confidence by parties to a complaint or investigation may reduce the willingness of
parties to provide information relevant to a particular complaint and may reduce their
willingness to participate fully and frankly with the investigative process. In such cases
the investigative body’s ability to obtain all information would be undermined and this
may have a substantial adverse effect on the proper and efficient conduct of the
investigative body’s operations.
9.
Disclosure of Document 1 would, or could reasonably have a substantial adverse effect
on the Commonwealth Ombudsman and the Commission’s operations by:
deterring future disclosers and witnesses from engaging with the Commonwealth
Ombudsman and the Commission due to fear their complaints will not be kept
confidential and their identities may be inferred from the information disclosed
under the FOI Act;
deterring agencies from providing all relevant information to the Commonwealth
Ombudsman due to the concern that sensitive PID information may later be
disclosed; and
hindering the Commonwealth Ombudsman’s ability to conduct future statutory
investigations, where fulsome and open communication is necessary.
10. For the reasons above, I have decided Document 1 is conditionally exempt document
under paragraph 47E(d) of the FOI Act, as it would, or could reasonably be expected to
have a substantive adverse effect on the proper and efficient conduct of the operations
of the Commonwealth Ombudsman’s Office and the Commission.
Section 47F – personal privacy
11. Subsection 47F(1) of the FOI Act provides:
(1) A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including a
deceased person).
12. For the purposes of the FOI Act, “personal information” is defined as information or an
opinion about an identified individual, or an individual who is reasonably identifiable:4
whether the information or opinion is true or not; and
whether the information or opinion is recorded in a material form or not.
13. I consider that Document 1 contains parts that are conditionally exempt; specifically
the names of non-Senior Executive Staff within the Australian Public Service (APS).
14. Subsection 47F(2) of the FOI Act provides:
4 Section 6 of the Privacy Act 1988.
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(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
15. I have had regard to the matters I must consider under subsection 47F(2) of the FOI Act
in determining whether the disclosure of the personal information would involve the
unreasonable disclosure of personal information.
16. Under paragraph 6.137 of the FOI Guidelines, key factors in determining whether
disclosure is unreasonable include:
the author of the document is identifiable;
the document contains third party personal information;
release of the document would cause stress to the third party;
no public purpose would be achieved through release.
17. Under paragraph 6.138 of the FOI Guidelines, other factors include:
the nature, age and current relevance of the information;
any detriment that disclosure may cause to the person to whom the information
relates;
any opposition to disclosure expressed or likely to be held by that person;
the circumstances of an agency’s or minister’s collection and use of the information;
the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act;
any submissions an FOI applicant chooses to make in support of their request as to
their reasons for seeking access and their intended or likely use or dissemination of
the information; and
whether disclosure of the information might advance the public interest in
government transparency and integrity.
18. Relevant to personal information of certain public servants, under the FOI Act there is
no presumption that agencies and ministers should start from the position that the
inclusion of the full names of staff in documents increases transparency and the objects
of the FOI Act.5
19. I have identified the following factors that, in my view, do not support the release of
this personal information under section 47F of the FOI Act:
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;
5 Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [83].
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the disclosure of this information could expose concerned individuals to unsolicited
and inappropriate approaches by external parties;
release of the individuals’ personal information may cause stress for them or other
detriment; and
disclosure would prejudice the individuals’ right to privacy.
20. I have therefore decided to the extent that Document 1 includes the names of non-
Senior Executive Staff within the APS, those parts are conditionally exempt from
disclosure under section 47F of the FOI Act because disclosure would involve the
unreasonable disclosure of their personal information.
Sections 11A and 11B – public interest factors
21. Subsection 11A(5) 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.
22. I have considered the public interest exemption factors in favour of disclosure at
subsection 11B(3) of the FOI Act, including the extent to which access to the documents
would promote the objects of the FOI Act and inform debate on a matter of public
importance. 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;
increase scrutiny around government decision-making; and
promote effective oversight of public expenditure.
23. I have identified the following factors as weighing against disclosure:
disclosure would prejudice individuals’ right to privacy;
disclosure could lead to unwarranted approaches to individuals which would
adversely impact their ability to perform their role and functions;
disclosure could reduce the willingness of future disclosers and witnesses from
engaging with the Commonwealth Ombudsman;
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 Commonwealth
Ombudsman’s Office and Commission (and could reasonably be expected to
prejudice the ability to obtain confidential information in the future/conduct
investigations in the future);
disclosure of any third party individual’s personal information will not advance the
scrutiny of the Commissioner’s inquiry functions and processes under the PID Act;
disclosure could discourage fulsome communication between agencies on PID
matters and administration; and
disclosure could harm the Commonwealth Ombudsman’s ability to conduct
statutory investigations in the future.
24. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining
whether access would be in the public interest. I have not considered these factors.
25. On balance, I find disclosure of Document 1 would be contrary to the public interest.
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The public interest factors weigh against disclosure of the conditionally exempt material
in the documents as disclosure of sensitive personal information and the likely
substantial adverse effect on the Commission and Commonwealth Ombudsman’s
Office’s administration of PID scheme outweigh the public interest factors favouring
disclosure.
26. I have ultimately decided that disclosure of the conditionally exempt material in the
document would be contrary to the public interest. The document is thus conditionally
exempt, in full, from disclosure under sections 47E(d) and section 47F of the FOI Act.
ATTACHMENT C
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek 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.
Seeking review of a Freedom of Information decision
If you still believe a decision is incorrect, the Freedom of Information Act 1982 (the FOI Act)
may give you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service
Commission; and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will
consider all aspects of the original decision and decide whether it should change. An
application for internal review must be made in writing within 30 days of receiving this letter
to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or 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 (the 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
