Our reference: LEX 705 (LEX 640)

NTS

By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Applicant

Freedom of Information Internal Review Request – LEX 705 (640)

1.
I am writing about your request for internal review, dated 8 November 2023,
regarding a decision made by the Australian Public Service Commission
(Commission) under the Freedom of Information Act 1982 (FOI Act).

Background

2.
On 8 September 2023, you wrote to the Commission, requesting access to the
following documents:

‘Under the FOI Act, I seek a copy of any document prepared by the APSC from 1
January 2023 onwards, and provided to any of the following:
i) media organisations, ii) Commonwealth agency heads, or iii) lobby groups
such as the IPA or the Centre for Independent studies in relation to the working
conditions of the non-SES employees.’

3.
On 27 September 2023, the FOI decision maker, Ms McIntyre, wrote to you advising
that a practical refusal reason existed for your FOI request under section 24AA of the
FOI Act, as the work involved in processing the request would substantially and
unreasonably divert the resources of this agency from its other operations due to its
size and broad scope, and initiated a ‘request consultation process’ in which you had
14 days to notify the Commission, in writing, that you either:
a)  Withdraw your request;
b)  Make a revised request;
c)  Indicate that you do not wish to revise the request.

4.
In your response on 28 September 2023 you revised your request, requesting access to
the following documents:

‘A copy of any document prepared by the APSC from 1 January 2023 onwards, and
provided to:
i) media organisations, or
ii) the Institute of Public Affairs (ie. www.ipa.org.au)
in relation to the working conditions of the non-SES APS employees.’

5.
On 3 November 2023 Ms McIntyre determined that a practical refusal reason still
existed and made a decision to refuse access under paragraph 24(1)(b) of the FOI Act.

6.
On 8 November 2023, you sought an internal review of Ms McIntyre’s decision with
respect to part of your revised request.  You provided the following regarding the
scope of your request:

‘In her decision with reference ‘LEX 677’ Ms McIntyre confirmed that there were no
relevant documents in the APSC’s possession that were prepared for the Institute of
Public Affairs meaning that Ms McIntyres practical refusal decision relates solely to
‘document[s] prepared by the APSC from 1 January 2023 onwards, and provided
to….media organisations…in relation to the working conditions of non‐SES APS
employees.’

I note that all APSC media requests and responses are dealt with by the APSC’s
media team and that staff within that team would have the requisite knowledge to
readily identify and locate documents within that fell within the scope of my request. I
further note that on 28 September I made clear that I was willing to treat, as
irrelevant to my request, the personal information of any person who isn’t, or wasn’t
at the relevant time, a Commonwealth public servant or a statutory officer. And that
noting paragraphs 6.153 and 6.154 of the FOI Guidelines there’ll therefore be no
need to consult with any person whose personal information is included in a relevant
document.’

Documents relevant to your request

7.
I understand the scope of your request to be ‘document[s] prepared by the APSC from
1 January 2023 onwards, and provided to….media organisations…in relation to the
working conditions of non‐SES APS employees.’

8.
I have identified 52 documents in scope of your request.

Decision

9.
I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.

10.
I am satisfied that all reasonable steps have been taken to locate documents relevant to
your request.

11.
I have decided to grant you full access to 13 documents and partial access to 39
documents because I consider some content in scope of your request is exempt from
release under section 47F of the FOI Act. The copies of the requested documents that
I am releasing to you have been edited to remove the material that is exempt.

12.
A full schedule of documents can be found at Attachment A.

13.
The reasons for my decision are set out in Attachment B.

14.
I therefore vary Ms McIntyre’s decision refusing your requests for access to
documents under paragraph 24(1)(b) of the FOI Act.

Deletion of exempt matter or irrelevant material
15.
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 a request.

16.
Copies of the requested documents have been edited to remove material that is either
exempt or irrelevant material to the scope of your request. The schedule at
Attachment A sets out the grounds on which information has been redacted from the
documents relevant to your request.

Contacts

17.
If you require clarification on matters in this letter, please contact the Commission’s
FOI Officer by email at xxx@xxxx.xxx.xx.

Review rights

18.
You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.

Yours sincerely

Dr Nicole Steele
Authorised FOI decision maker
7 December 2023

ATTACHMENT A

SCHEDULE OF DOCUMENTS
Documents Part 1

Document
Page
Description
Exemptions
Number
1
1-3
Email from APSC Media
None
2
4
Email from APSC Media to Journalist
Section 47F – Personal Privacy
3
5
Email from Workplace Relations Bargaining  Section 47F – Personal Privacy
Taskforce to Journalist
4
6
Email from APSC Media to Journalist
Section 47F – Personal Privacy
5
7-9
Email from Workplace Relations Bargaining  None
Taskforce to Journalist
6
10
Email from APSC Media to Journalist
Section 47F – Personal Privacy
7
11-13
Email from APSC Media
None
8
14
Email from APSC Media to Journalist
Section 47F – Personal Privacy
9
15
Email from APSC Media to Journalist
Section 47F – Personal Privacy
10
16
Email from APSC Media to Journalist
Section 47F – Personal Privacy
11
17-19
Email from Workplace Relations Bargaining  None
Taskforce to Journalist
12
20-23
Email from APSC Media to Journalist
Section 47F – Personal Privacy
13
24
Email from APSC Media to Journalist
Section 47F – Personal Privacy
14
25
Email from APSC Media to Journalist
Section 47F – Personal Privacy
15
26-28
Email from APSC Media to Journalist
Section 47F – Personal Privacy
16
29-30
Email from APSC Media to Journalist
Section 47F – Personal Privacy
17
31
Email from APSC Media to Journalist
Section 47F – Personal Privacy
18
32
Email from APSC Media to Journalist
Section 47F – Personal Privacy

19
33-34
Email from APSC Media to Journalist
Section 47F – Personal Privacy
20
35
Email from APSC Media to Journalist
Section 47F – Personal Privacy

Documents Part 2
21
1
Email from APSC Media to Journalist
Section 47F – Personal Privacy
22
2
Email from APSC Media to Journalist
Section 47F – Personal Privacy
23
3
Email from APSC Media to Journalist
Section 47F – Personal Privacy
24
4-6
Email from APSC Media to Journalist
Section 47F – Personal Privacy
25
7
Email from APSC Media to Journalist
Section 47F – Personal Privacy
26
8
Email from APSC Media to Journalist
None
27
9
Email from APSC Media to Journalist
Section 47F – Personal Privacy
28
10-11
Email from APSC Media to Journalist
Section 47F – Personal Privacy
29
12-13
Email from APSC Media to Journalist
Section 47F – Personal Privacy
30
14
Email from APSC Media to Journalist
Section 47F – Personal Privacy
31
15
Email from APSC Media to Journalist
Section 47F – Personal Privacy
32
16
Email from APSC Media to Journalist
Section 47F – Personal Privacy
33
17
Email from APSC Media to Journalist
Section 47F – Personal Privacy
34
18
Email from APSC Media to Journalist
Section 47F – Personal Privacy
35
19
Email from APSC Media to Journalist
Section 47F – Personal Privacy
36
20
Email from APSC Media to Journalist
None
37
21
Email from APSC Media to Journalist
Section 47F – Personal Privacy
38
22
Email from APSC Media
None
39
23
Email from APSC Media to Journalist
Section 47F – Personal Privacy
40
24-25
APSC Agency Pay Scales – 31/12/23
None
41
26-28
APS Staff Consultation Survey 2023
None
42
29
Email from APSC Media
Section 47F – Personal Privacy

43
31-33
Email from APSC Media
Section 47F – Personal Privacy
44
33
Email from APSC Media
None
45
34-35
Email from APSC Media
Section 47F – Personal Privacy
46
36-37
Email from APSC Media
Section 47F – Personal Privacy
47
39-40
Email from APSC Media
Section 47F – Personal Privacy
48
41-42
Email from APSC Media
None
49
43
Email from APSC Media
Section 47F – Personal Privacy
50
44
Email from APSC Media
None
51
45-46
APS Bargaining News
None
52
47-48
Email from APSC Media to Journalist
Section 47F – Personal Privacy

ATTACHMENT B
Reasons for decision

19.
In making this decision I have had regard to:
•  the terms of your requests;
•  the terms of your submissions and responses to the request consultation
process;
•  the FOI Act; and
•  the FOI Guidelines issued by the Australian Information Commissioner.

20.
In making this decision I have not had regard to (section 24AA(3) FOI Act):
•  any reasons that you have given for requesting access; or
•  the agency’s or Minister’s belief as to what your reasons are for requesting
access; or
•  any maximum amount, specified in the regulations, payable as a charge for
processing a request of that kind.

Section 47F FOI Act – Personal privacy

21.
Section 47F of the FOI Act provides a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information of any
person.

22.
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
•  whether the information or opinion is recorded in a material form or not.

23.
This 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…’

24.
A number of your requested documents capture the personal information of public
servants and other individuals.

25.
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: Warren; Chief Executive Officer, Services
Australia and (Freedom of information) [2020] AATA 4557 at [83].

26.
With the substantial increase in electronic requests and related correspondence, a rise in
anonymous applications as well as requests affecting the safety and wellbeing of
employees, the Commission now assesses whether a disclosure of public servants’
personal information in requests is unreasonable under section 47F of the FOI Act.

27.
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 release of
certain public servants’ personal information under section 47F of the FOI Act:
•  the individual’s personal information, in particular their full names, will identify
them;
•  the names and contact details of a number of the individuals is generally not well
known or publicly available and the disclosure of this information will not advance
scrutiny of any decisions falling within the scope of your FOI request, particularly
with regard to staff who are not relevant decision-makers and non-SES staff
members who are acting under the direction of senior staff within relevant agencies
in the course of their ordinary duties;
•  the release of some of the individual’s personal information in connection with the
subject matter of the documents would likely cause stress for them or other
detriment, including in particular relevant personal information, including emails
and mobile phone numbers could result in those individuals being contacted outside
of appropriate official channels, including outside of business hours; and
•  no public purpose or interest in increasing transparency of government would be
achieved through the release of the information.

28.
Considering the above factors, I consider that the disclosure of personal information
of certain public servants and of other individuals about would be unreasonable in the
circumstances and could result in specific harm.

29.
I have therefore decided that to the extent the documents include personal information
about non-SES staff members and mobile phone contact details of SES staff
members, those parts of the documents are conditionally exempt from disclosure
under section 47F of the FOI Act. My consideration of the public interest test is
provided separately below.

30.
I have therefore decided to the extent that the documents include personal information
that would be unreasonable to disclose, those parts are conditionally exempt from
disclosure under section 47F of the FOI Act.

Sections 11A and 11B - Public Interest Test

31.
Subsection 11A(5) of the FOI Act provides that an agency must give access to a
document if it is conditionally exempt unless (in the circumstances) access to the
document would, on balance, be contrary to the public interest. I have found that
certain material is conditionally exempt on the grounds of section 47F of the FOI Act.

32.
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;

•  allow a person to access his or her own personal information
•  inform debate on a matter of public importance; and
•  promote effective oversight of public expenditure.

33.
I have identified the following factors as weighing against disclosure:
•  the disclosure of certain personal information (including contact details) of a
number of the identifiable individuals will not advance any scrutiny of any
decisions falling within the scope of your FOI request;
•  the disclosure of personal information could reasonably be expected to prejudice
the protection of certain individual’s right to privacy;
•  there is a public interest in APS employers fulfilling their obligations under the
Work Health and Safety Act 2011, in particular by preventing the exposure of staff
members from potential harassment or threats in a public forum;

34.
Taking into account the matters above, I find overall that disclosure of some parts of
the requested documents would be contrary to the public interest. I therefore find that
to the extent that the material contained in the documents is conditionally exempt
under section 47F of the FOI Act, those parts of the requested documents are exempt
from disclosure under 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 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