Anonymous
By email: foi+request-10788-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 690
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
24 October 2023 for access to documents
held by the Australian Public Service Commission (the Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available from www.legislation.gov.au.
3. On 20 November 2023, the Commission notified you that the time frame for responding
to your request was extended to allow consultation with affected third parties. The time
frame was extended by 30 days to
27 December 2023.
Documents relevant to your request
4. You requested access to documents in the following terms:
‘On 24 October 2023, in his opening address to the Senate’s Finance and Public Affairs
Committee, Dr Gordon de Brouwer stated that the APSC was working closely with the
Secretaries Board and the Minister for the Public Service on “strengthening integrity in
the public service.” He claimed that he and his colleagues take their responsibilities
“seriously.” He then stated that “the conduct of senior APS leaders and employees is an
issue of heightened public interest …”
Under the Freedom of Information Act 1982 (Cth), I request access to:
a) documents, prepared for the October 2023 round of Senate Estimates in the form of
briefing notes and the like, in respect of the APSC’s programmes on “strengthening
integrity in the public service”,
b) documents, prepared for the October 2023 round of Senate Estimates in the form of
briefing notes and the like, in relation to the APSC’s Code of Conduct inquiries, which
Dr De Brouwer referred to in his opening address,
c) other than in respect of Code of Conduct inquiries arising out of the Robodebt
debacle, documents, prepared for the October 2023 round of Senate Estimates in the
form of briefing notes and the like, relating to the Agency Heads and senior APS
employees and officials being investigated through Code of Conduct inquiry processes,
and
d) documents, prepared for the October 2023 round of Senate Estimates in the form of
briefing notes and the like, in respect of “corruption prevention in the workplace” and
“roadmap[s] for strengthening pro-integrity culture within the APS.”
5. I have identified six (6) documents in scope of your request.
Decision
6. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
7. I have decided to:
a) grant full access to documents 1, 2, 3, 5 and 6 (subject to the deletion of irrelevant
material); and
b) give partial access to document 4 because I consider some content in these
documents are exempt from release under paragraphs 47E(c) and 47E(d) of the FOI
Act.
8. A schedule of documents is at
Attachment A.
9. My reasons are set out in
Attachment B.
Deletion of irrelevant material
10. 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 material that is
irrelevant to the scope of a request (for example, junior staff names).
11. Copies of the requested documents have been edited to remove material that is irrelevant
material to the scope of your request.
Contacts
12. 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
13. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
Tom Georgilas
Authorised FOI decision maker
21 December 2023
ATTACHMENT A
SCHEDULE OF DOCUMENTS
DOCUMENT DESCRIPTION
BASIS OF REDACTIONS
1
Integrity Initiatives and Robodebt
s22
2
Estimates Opening Statement
Nil
3
APVMA Investigation
s22
4
Kathryn Campbell AUKUS appointment
s47E(c) and (d)
s22
5
Executive Brief - Integrity
s22
6
Michael Pezzullo referral to the APS
s22
Commissioner
ATTACHMENT B
Reasons for decision
1. In making my decision I have had regard to:
• the terms of your request;
• the content of the document you requested;
• the FOI Act;
• the FOI Guidelines issued by the Australian Information Commissioner;
• consultation with relevant agencies and third parties and their submissions.
2. I have also taken into account the nature of the request being in relation to Senate
Estimates; an important feature of democracy in examining the expenditure and actions of
government.
3. Keeping this in mind, I have decided to grant access in full to documents 1, 2, 3, 5 and 6
and grant partial access to document 4.
Paragraphs 47E(c) and (d) – Certain operations of agencies – substantial adverse
effect on the proper and efficient conduct of the operations of an agency
4. Paragraphs 47E(c) and 47E(d) of the FOI Act provide that a document is conditionally
exempt from disclosure if its disclosure would, or could be reasonably expected to have a
substantial adverse effect on the management or assessment of personnel by an agency, or on
the proper and efficient conduct of the operations of an agency.
5. The Administrative Appeals Tribunal (AAT) has accepted that it is important to maintain
candour in relation to management of personnel (see:
De Tarle and Australian Securities
and Investments Commission (Freedom of Information) [2016] AATA 230 [42],),
particularly where, in such cases, staff may be reluctant to cooperate if they were aware that
the subject matter of those discussions would be disclosed through the FOI process. Further,
it is important that an agency is able to continue working effectively with all stakeholders in
order to maintain proper and efficient conduct of the operations of an agency.
6. I am satisfied the document relates to both:
• the management of staff within an agency (and proceedings in relation to them); and
• the operations of an agency (including working relationships).
7. I consider the release of parts of document 4 would have the effect of significantly
diminishing the ability of an agency to manage working relationships in a productive
manner.
8. Accordingly, I have decided that release of parts of this document under the FOI Act,
would likely undermine an agency’s ability to manage personnel and properly and
efficiently conduct operations.
9. 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.
Sections 11A and 11B - Public Interest Test
10.
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’.
11.
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.
12.
I have identified the following factors as weighing against disclosure:
• disclosure could reasonably be expected to prejudice the fair treatment of individuals
in regard to allegations of improper conduct;
• disclosure could reasonably be expected to impede the administration of justice
generally, including procedural fairness; and
• disclosure could reasonably be expected to prejudice the management function of an
agency.
13.
I thus consider the public interest factors weigh strongly against disclosure of the
conditionally exempt material in document 4 and have decided that disclosure of the
conditionally exempt material in the document would be contrary to the public interest. To
the extent that the material contained in document 4 is conditionally exempt under
sections 47E(c) and 47E(d), those parts of the requested document are therefore
conditionally exempt from disclosure under the FOI Act.
14.
For all other documents in scope, I have granted access in full and only removed material
irrelevant to the scope of the request.
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.a
u
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
