Dear Ms Meka Larsen
OAIC ref: MR23/01428 | APSC ref: LEX 767 We refer to your correspondence, in relation to the abovementioned Information
Commissioner Review (IC Review) on 3 June 2025.
We appreciate your patience and granting the Commission’s request for an extension of time
to provide its submissions and results of further searches undertaken to 1 July 2025.
Commission Submissions
Al reasonable steps taken
1. The Commission submits that it has taken ‘all reasonable steps’ to locate relevant
documents for the purposes of s 24 of the FOI Act.
2. In conducting further searches for this request, the Commission searched the
information holdings where the types of documents and subject matter captured by
the Applicant’s request would be stored, including Share+ (formerly Sharehub, an
online file management system), email inboxes of Microsoft Outlook, and, if deemed
relevant by the line area, the Parliamentary Document Management System (PDMS).
3. Specifically, searches were undertaken of the above information holdings of the APS
Commissioner - Dr Gordon de Brouwer, First Assistant Commissioner Jo Talbot, the
General Counsel Branch and the Integrity, Performance and Employment Policy
(IPEP) Branch (including the Acting Assistant Commissioner of the IPEP Branch
during the period specified in the request).
4. As the scope of this request relates to a historical matter, many of the individuals
listed in the Applicant’s request are no longer employees of the Commission. To
ensure appropriate searches were undertaken, the Commission utilised the external
search services of the Department of the Prime Minister and Cabinet’s Information
Technology team, to conduct searches of the email inboxes of those individuals who
have left the Commission.
5. Other potential search locations, identified in the OAIC’s Reasonable Steps
Checklist, were deemed inapplicable, on the basis that documents of the nature
specified in the Applicant’s request would not be stored in those locations.
6. The request for ‘any and all document sent or received by, or prepared by, or made
use of by each of [listed persons] in respect of inadequate investigations, or in
respect of inadequate investigations, relating to misconduct in the Australia Public
Service, or any kinds of unlawful conduct by officials in the Australian Public Service’
is very broadly framed, without a reasonable level of specificity to enable a
reasonable number of documents to be identified (refer to
Attachment A for
complete request).
7. To lessen the processing burden imposed on the Commission, based on the
potentially large volume of documents which may result from the use of broad search
terms, the Commission used strict search terms to identify documents in scope of the
Applicant’s request.
8. The Commission used expanded search terms when conducting the further
searches, including the following: “inadequate investigation, “misconduct,” and
“unlawful misconduct.” For example, search parameters for the searches undertaken
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link to page 2
on behalf of the Commission by the Department of the Prime Minister and Cabinet’s
IT team, were as follows:
“inadequate investigation” and “misconduct” or “unlawful conduct”
9. These parameters are broader than those used in the original request:
“inadequate investigation” and “misconduct” and “unlawful conduct”
10. Due to nature of the Commission’s functions and the relevant powers of the
Australian Public Service Commissioner it can be expected that the use of search
terms such as ‘misconduct’ and ‘unlawful conduct’ could generate numerous results.
Such material would be at a minimum, confidential, and may be “protected
information” under section 72A of the
Public Service Act 1999.
11. In accordance with the terms of the Applicant’s request, if a document was identified
which objectively did not fit within the scope of documents which were ‘sent or
received by, or prepared for or prepared by, or made use of by’ the listed individuals,
in respect of inadequate investigation or reports of inadequate investigations, and
related to misconduct in the APS or any kind of unlawful conduct by officials in the
APS, it was considered out of scope.
12. As such, where documents identified referenced ‘misconduct’ or ‘unlawful conduct’
but did not align with the subject matter of ‘inadequate investigation’ or ‘reports of
inadequate investigations’ these were considered out of scope. As such, whilst
results were located with the search terms ‘misconduct’ or ‘unlawful conduct’ no
documents were identified in scope of the Applicant’s request.
Initial searches undertaken in processing original request (LEX 629)
1. The Commission wishes to explain the nature in which searches were undertaken in
the original request, and the reasoning behind the interpretation of the scope of the
request.
2. As aforementioned, due the nature of the Commissioner’s functions, and the
potentially large volume of documents generated from the use of search terms such
as “unlawful conduct”, or “misconduct,” strict search terms were used.
3. Noting this, the searches of the APS Commissioner’s inbox were confined to the
search terms “inadequate investigation.” As raised by the individual who conducted
these searches, the APS Commissioner’s inbox contains protected information under
s 72A of the
Public Service Act 1999, concerning ongoing investigations into
suspected breaches of the APS Code of Conduct.
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4. Documents identified in the searches undertaken on the APS Commissioner’s inbox,
were considered outside the scope of the Applicant’s request, as they “did not relate
to actual investigations.”
5. A similar approach was adopted in searches which utilised the DPM&C IT
department, and the searches undertaken by the legal services team, which used
1 Document 19 of the initial document bundle provided to the OAIC for this matter, and as referred to in your
correspondence dated 3 June 2025.
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link to page 3 link to page 3 link to page 3
strict search criteria in the refined searches, due to the large volume of documents
generated in the initial searches.
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6. The Commission submits that in conducting further searches for this matter, it
revised and expanded the search terms [as discussed in paragraphs 7 – 9], and did
not identify any further documents.
7. The line area conducting the searches for the IPEP Branch assessed that:
“
the request cannot be reasonably interpreted as including documents of all reports
of misconduct or unlawful conduct in the APS”3
8. Consequently, the search terms “inadequate investigation” and “reports of
inadequate investigation” were used in these searches. Noting the particular
functions of the IPEP Branch (including responsibilities for a publicly available ethics
advisory service for APS employees) numerous results were generated. However, it
was determined that these documents were outside the scope of the request, on the
basis that they did not relate to “inadequate investigations, or reports in respect of
inadequate investigations, relating to misconduct in the Australia Public Service, or
any kinds of unlawful conduct by officials in the Australian Public Service.”
9. A similar conclusion was drawn by the line area in relation to documents which
related to a previous FOI request processed by the Commission with the matter
number LEX 627. The line area assessed that these documents were outside the
scope of the Applicant’s request on the basis that they did not relate to “inadequate
investigations, or reports in respect of inadequate investigations, relating to
misconduct in the Australia Public Service, or any kinds of unlawful conduct by
officials in the Australian Public Service,” and instead, the scope of LEX 627 related
to “investigation about recruitment practices.”
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10. The Commission acknowledges that it made a decision pursuant to section 55G of
the FOI Act in respect of the IC review (MR23/01311) for LEX 627 and released a
document in part. This document comprises feedback from the Commonwealth
Ombudsman following an investigation, provided under subsection 12(4) of the
Ombudsman Act 1976, and has been published on the Commission’s FOI disclosure
log.
11. As mentioned in paragraph 9, document 25g was not considered within scope of the
Applicant’s request as it does not relate to “inadequate investigations, or reports in
respect of inadequate investigations, relating to misconduct in the Australia Public
Service, or any kinds of unlawful conduct by officials in the Australian Public Service,”
and instead, relates to “investigation about recruitment practices.”
Please feel free to contact the Commission should you require any further information. The
Commission has shared a copy of these submissions with the Applicant.
Yours sincerely
2 Documents 6 and 12 of the initial document bundle provided to the OAIC for this matter, and as referred to
in your correspondence dated 3 June 2025.
3 Documents 14a and 15a of the initial document bundle provided to the OAIC for this matter, and as referred
to in your correspondence dated 3 June 2025.
4 Document 8 of the initial document bundle provided to the OAIC for this matter, and as referred to in your
correspondence dated 3 June 2025.
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Melanie McIntyre, General Counsel.
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