Our reference: LEX 683(650)
Anselmo Cristobal Hernandez y Pinal
By Email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Notice of internal review decision- Freedom of Information- LEX 683(650)
1. The purpose of this letter is to advise you of my decision following your request for
internal review of the Australian Public Service Commission (the Commission’s) decision
to refuse access to documents you requested under the
Freedom of Information Act 1982
(FOI Act).
Background
2. On 19 September 2023, you requested the following documents from the Commission
under the FOI Act:
‘According to a document on the FOI disclosure log on the APSC website (LEX 559),
documents were released administratively under LEX 540 (reference SHC23-4379),
LEX 544 (reference SHC23-4513), LEX 545 (reference SHC23-4540), and LEX 546
(SHC23-4521).
Subject to those documents being released administratively pursuant to this request
for access, under the FOI Act, I request access to the administratively released
documents associated with LEX 540, LEX 544, LEX 545, and LEX 546.’
3. Ten (10) documents were discovered that fell within scope of this request. These documents
all relate to public interest disclosures (PIDs) under the
Public Interest Disclosure Act 2013 (the PID Act)
.
4. On 18 October 2023, the original decision maker, Ms Melanie McIntyre, refused access to
all documents.
5. In providing the decision, she noted that once relevant exemptions were applied (s47E-
certain operations of agencies, section 47F- personal privacy) the objects of the FOI Act
would not be served by providing access to the edited version as extensive editing was
required and would leave only a skeleton of the former documents.
6. In your request for internal review, dated 18 October 2023, you submitted:
‘These documents that you have refused access to were released administratively to a
person who made an FOI request for them. Why would these documents have been
released administratively in response to an FOI request if, as you say, it is contrary to
the public interest to grant access to them? Why would the APSC privilege one access
applicant over another?
Your decision doesn't make sense. It seems discriminatory.’
Decision
7. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
8. I am writing to you now to advise that I am satisfied the documents are partially exempt
documents. I therefore affirm Ms McIntyre’s earlier decision to refuse your request for
access to these documents.
9.
Attachment A sets out the grounds on which the documents are partially exempt.
10. My reasons are set out in
Attachment B.
Contacts
11. If you require clarification on matters in this letter, please contact the Commission’s FOI
Officer by e
mail at xxx@xxxx.xxx.xx.
Review rights
12. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
Mr Shyam Raghupathi
Authorised FOI decision maker
17 November 2023
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document Pages
Description
Exemptions
1
1 - 4
LEX 540 – FOI Request (LEX 189)
s 22 –
s 47E, s 47F
2
5 - 8
LEX 540 – Decision Notice (LEX 189)
s 22 –
s 47E, s 47F
3
9 - 12
LEX 544 – FOI Request (LEX 190)
s 22 –
s 47E, s 47F
4
13 - 16
LEX 544 – Decision Notice (LEX 190)
s 22 –
s 47E, s 47F
5
17 - 27
LEX 545 – Decision Notice (LEX 187)
s 22 –
s 47E, s 47F
6
28 - 36
LEX 545 – Internal Review Decision (LEX 230)
s 22 –
s 47E, s 47F
7
37 – 40
LEX 545 – FOI Request (LEX 190)
s 22 –
s 47E, s 47F
8
41 – 44
LEX 545 – Decision Notice (LEX 190)
s 22 –
s 47E, s 47F
9
45 – 53
LEX 546 – Internal Review Decision (LEX 230)
s 22 –
s 47E, s 47F
10
54 - 64
LEX 546 – Decision Notice (LEX 187)
s 22 –
s 47E, s 47F
ATTACHMENT B
Reasons for Decision
13. In reaching my decision, I have considered:
the terms of your request;
the relevant documents;
your internal review request, and supporting submissions, dated 18 October 2023;
the FOI Act; and
the FOI Guidelines.
Section 47E- Certain operations of agencies
14. 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 operations.
15. 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.
16. 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 PID Act.
17. Further, I consider disclosure of the information contained in those parts of documents 1-
10 could reasonably affect the willingness of people to make complaints or raise concerns
to the Commission under the PID Act.
18. 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.
Section 47F- Personal Privacy
19. 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.
20. 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.
21. I am satisfied that the documents contain personal information including names and email
addresses.
22. 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.
23. 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…’
24. I have considered the above factors, and identified the following factors that do not
support release of this personal information:
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;
release of the individuals’ personal information may cause stress for them or other
detriment; and disclosure would prejudice the individuals’ right to privacy;
disclosure would prejudice the individual’s right to privacy.
25. 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
26. 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’.
27. 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.
28. 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 (and could reasonably be expected to prejudice the Commission’s
ability to obtain confidential information in the future/conduct investigations in the
future).
29. On balance, I consider disclosure of the conditionally exempt information in documents 1-
10 would be contrary to the public interest, and so the information is partially exempt
from disclosure under sections 47E and 47F of the FOI Act.
Deletion of exempt matter or irrelevant material
30. 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.
31. 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.
32. 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.
Privileging one access over another
33. I also note your submissions:
‘These documents that you have refused access to were released administratively to a
person who made an FOI request for them. Why would these documents have been
released administratively in response to an FOI request if, as you say, it is contrary to the
public interest to grant access to them? Why would the APSC privilege one access
applicant over another?
Your decision doesn't make sense. It seems discriminatory.’
34. In response, I draw your attention to paragraph 3.18 of the FOI Guidelines which
provides:
‘An FOI decision maker must approach each decision with an open mind…Generally, a
decision maker is not prevented from making a decision by reason of having dealt
previously with a similar issue or applicant, or having expressed a view about FOI Act
principles or requirements.’
35. I acknowledge your concerns and assure you that this decision is not in any way intended
to privilege one access over another, however I consider that it was open to me to look at
this request on its own terms.
36. Whilst the decision maker in the other request you refer to took a particular view in that
case, having regard to all the facts before them, to make an administrative release, I have
decided that this request would be more appropriate to be dealt with under the FOI
process. In making this decision, I have considered guidance from the OAIC on
administrative release (available at: Administrative access | OAIC):
‘Where disclosure of the information sought would likely impact third parties, or would
result in information from the documents being heavily redacted prior to disclosure, it
may be more appropriate to deal with the request through the FOI process.’
37. Taking into account the above, I
affirm Ms McIntyre’s decision of 18 October 2023 to
refuse your request for access to documents under sections 22, 47E and 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 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
