Louis Verhuizen
By Email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference: LEX 1463
Dear Applicant
Freedom of Information request
1. I am writing about your Freedom of Information (FOI) internal review application under
the
Freedom of Information Act 1982 (FOI Act) made on 3 May 2025 for an earlier FOI
request decision made by the Australian Public Service Commission (the Commission) on
30 March 2025.
2. The FOI Act is publicly available f
rom www.legislation.gov.au.
Original Request and decision
3. 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).’
4. The original decision maker, Ms Kylie Barber, identified one (1) document relevant to
your request, and refused you access to the requested document.
5. The document was:
Document 1: Letter to Commonwealth Ombudsman
6. Ms Barber refused access to the document on the basis that disclosure of conditionally
exempt material under section 47E(d) (certain operations of agencies) and section 47F
(personal privacy) of the FOI Act, would be contrary to the public interest.
Your internal review application
7. On 3 May 2025, you made an internal review application to the Commission as follows:
‘I am writing to request a complete internal review of your handling of my FOI request.’
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Decision on your FOI request
8. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions, and have
reviewed your application in accordance with section 54C of the FOI Act.
9. My role is to make a new decision on your request, impartially and independently from
the original decision maker. I was not involved or consulted in the making of Ms Barber’s
decision. Internal review is a merits review process and I may exercise all the powers
available to an original decision maker.
10. After considering your request, under subsection 54C(3) of the FOI Act, I affirm Ms
Barber’s earlier decision to refuse access to Document 1, as I am satisfied that section
47E(d) and section 47F of the FOI Act apply to fully exempt the document.
11. The reasons for my decision are set out in
Attachment A.
Review rights
12. You are entitled to seek review of this decision. Your review rights are set out at
Attachment B.
Contacts
13. If you require clarification on matters in this letter please contact the Commission’s FOI
Officer by e
mail at xxx@xxxx.xxx.xx.
Yours sincerely
Melanie McIntyre
Authorised FOI decision maker
30 May 2025
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ATTACHMENT A
Reasons for decision
1.
In making this decision I have had regard to:
the terms of your request;
relevant case law;
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner.
Section 47E(d) – Certain operations of agencies
2.
Section 47E(d) of the FOI Act provides that a document is conditionally exempt from
disclosure if its disclosure would, or could reasonably be expected to, have a substantial
adverse effect on the proper and efficient conduct of the operations of an agency.
3.
The FOI Guidelines explain the meaning of the common term ‘would or could
reasonably be expected’ at paragraph 6.15 as follows:
“The use of the word ‘could’ is less stringent than ‘would’ and requires analysis of the
reasonable expectation rather than the certainty of an event, effect, or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.”
4.
The FOI Guidelines also explain the meaning of the common term ‘substantial adverse
effect’ at paragraph 6.18 as follows:
“The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is
sufficiently serious or significant to cause concern to a properly concerned reasonable
person’. The word ‘substantial’, in the context of substantial loss or damage, has been
interpreted as including ‘loss or damage that is, in the circumstances, real or of
substance and not insubstantial or nominal’.”
5.
I note from my examination of Document 1, it includes communication between the
Commission and Commonwealth Ombudsman in relation to a Public Interest
Disclosure (PID) Investigation.
6.
In
‘DZ’ and Commonwealth Ombudsman [2014] AICmr 137, it was determined that
disclosure of the substantive content of a communication provided by an agency to the
Ombudsman for the purposes of an Ombudsman investigation met the requirements of
section 47E(d). It was held to be likely that in the future information will continue to be
held across more than one agency, and that agencies will be less forthcoming if this
information is not treated confidentially. If agencies are less forthcoming and less
willing to consider and consult, the Ombudsman’s investigations will be less efficient.
7.
Similar reasoning was adopted in
Australian Skeptics Inc and Commonwealth
Ombudsman (Freedom of Information) [2021] AICmr 6, which acknowledged amongst
other things, that disclosure of information about an investigation would:
“result in agencies or members of the public being less forthcoming about providing
information is not treated confidentially.
…this would impede the Ombudsman’s ability to conduct a thorough investigation,
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availed of all the relevant facts and information in an efficient manner.”
8.
I consider that the reasoning in the above decisions applies to information in Document
1, so that disclosure of Document 1 is likely to have a substantial adverse effect on the
Ombudsman’s ability to properly and efficiently fulfil its functions and critical
oversight role in PID investigations. In particular, I consider disclosure could
discourage Commission and other Commonwealth staff to freely and effectively
communicate on the assessment of matters under the PID Act.
9.
In addition, I do not consider that Document 1 can be meaningfully redacted. On this
basis, I am satisfied that disclosure of the whole of Document 1 would, or could
reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of the Ombudsman’s Office and the Commission.
10. Importantly, as your request relates to a matter prior to 1 July 2023, I have also
considered section 65 of the
Public Interest Disclosure Act 2013 which provides that if
a person obtains information in performing a function or exercising a power under the
PID Act, they must not use or disclose that information except in certain circumstances
(none of which apply here).
11. The importance of protecting information collected during a PID investigation process
was affirmed in the case of ‘
YU’ and Bureau of Meteorology (Freedom of Information)
[2021] AICmr75, where the acting FOI Commissioner accepted the relevant
department’s submissions that certain operations of the agency could be undermined if
the confidentiality established under the PID Act was circumvented by an access
application made under the FOI Act.
12. My consideration of the public interest test in respect of the application of section 47E
to the document is outlined further at paragraphs 22 to 30.
Section 47F– Personal Privacy
13. Section 47F(1) of the FOI Act provides a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information about any
person (including a deceased person).
14. 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.
15. Consistent with Ms Barber’s decision, 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).
16. In determining whether disclosure of personal information would be reasonable, 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 matter dealt with in the document;
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The availability of the information from publicly accessible sources; and
Any other matter I consider relevant.
17. 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.
18. 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.
19. 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.1
20. Having regard to the matters I must consider under subsection 47F(2) of the FOI Act, 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;
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.
1
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [83].
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21. Noting the above, to the extent that Document 1 contains personal information, I
consider that 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.
Section 11A and 11B – Public interest factors 22. Subsection 11A(5) of the FOI Act provides that an agency must give access to a
document if it is conditionally exempt at a particular time unless (in the circumstances)
access to the document at that time would, on balance, by contrary to the public interest.
23. 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 document
would:
Promote the objects of the FOI Act
Inform debate on a matter of public importance
Promote government accountability
Increase scrutiny around government decision making; and
Promote effective oversight of public expenditure.
24. However, consistent with Ms Barber’s decision, 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 could reasonably be expected to undermine the confidentiality
provisions of the PID scheme (in particular section 65 of the PID Act);
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.
25. In making my decision, I have considered the recent decision of
Paul Hayes and
Commonwealth Ombudsman (Freedom of Information) [2025] AICmr 80, which
acknowledged that there is a strong public interest in protecting the ability of parties to
make disclosures under the PID Act, and the Commonwealth Ombudsman’s ability to
investigate such matters. It was also held that factors favouring disclosure are
outweighed by the public interest in preserving the ability of the Commonwealth
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Ombudsman to undertake investigations in the manner parliament intended for the
purpose of providing effective and efficient oversight of agency operations.
26. The reasoning in the case of
Hayes above is reflected in the Guidelines at paragraph
2.33 which outlines public interest factors against access to documents as follows:
“l. could reasonably be expected to prejudice the conduct of investigations, audits or
reviews by the Ombudsman…”
27. I have not had regard to any irrelevant factors as set out in subsection 11B(4) of the
FOI Act.
28. In this instance, I consider that the public interest factors against disclosure of the
document, outweigh the public interest factors favouring providing access.
29. I therefore find that Document 1 is subject to conditional exemptions under section
47E(d) and 47F of the FOI Act, and that disclosure is not in the public interest.
30. On this basis, I affirm the original decision made by Ms Barber.
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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 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 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 (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
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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
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