Cynthia T
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 814
Dear Cynthia
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
13 February 2024 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 fr
om www.legislation.gov.au.
Background
3. On 19 October 2023, you previously
requested:
any reports on the operations of the Australian Public Service Commission given
during the 2022-2023 financial year by the Commonwealth Ombudsman.
4. On 20 November 2023, the FOI decision maker, Ms Melanie McIntyre, made a decision
to refuse access to documents under section 24A of the FOI Act, on the basis of no relevant
documents being found to exist after reasonable searches.
5. On 16 December 2023, y
ou sought an internal review of Ms McIntyre’s decision.
6. On 18 December 2023, the Office of the Australian Information Commissioner granted
the Commission an extension to continue to process your internal review application to 29
January 2024.
7. On 29 January 2024, the FOI internal review decision maker, Ms Sam Montenegro,
affirmed Ms McIntyre’s decision to refuse access to documents under section 24A of the
FOI Act.
Documents relevant to your request
8. In your current request, you have sought access to:
The report issued from the Office of the Commonwealth Ombudsman, dated 15
December 2022, which “includes the Office’s findings, comments and suggestions
relating to an investigation, communicated to [the Australian Public Service
Commission].”
9. I have identified one (1) document within the scope of your request.
10. The document in question was not within the scope of your previous request as it was not
a ‘report’ for the purposes of section 15 of the
Ombudsman Act 1976 (Ombudsman Act).
11. The currently identified document was created under subsection 12(4) of the Ombudsman
Act, relating to the provision of
comments and
suggestions.
12. As your current request appears to be broader than your previous request and includes
further identifying information, I have interpreted the term ‘report’ in your request more
broadly to capture any documents that fit within the scope of this request.
Decision
13. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
14. I have decided to refuse access to the document because I consider it is exempt in full
under the FOI Act.
15.
Attachment A sets out the grounds on which the document is exempt.
16. My reasons are set out in
Attachment B.
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
SM
Authorised FOI decision maker
EL2
12 March 2024
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document
Description
Exemption grounds
1
Commonwealth Ombudsman section 12 notice
Section 47E – Operations of agencies
Section 47F – Personal privacy
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ATTACHMENT B
Reasons for decision
1. I have decided to refuse access to the documents because I consider that it is exempt in
full under the
Freedom of Information Act 1982 (FOI Act).
2. In making my decision I have had regard to:
a) the terms of your request;
b) the content of the documents;
c) the FOI Act;
d) consultation with the Commonwealth Ombudsman (Ombudsman); and
e) the Freedom of Information Guidelines (FOI Guidelines) issued by the Australian
Information Commissioner.
Exemptions
3. In making the decision to exempt the documents, I have applied the following exemptions:
(a) paragraph 47E(d) – Certain operations of agencies; and
(b) section 47F – Personal privacy.
Subsection 47E(d) – Certain operations of agencies – substantial adverse effect on
the proper and efficient conduct of the operations of an agency
4. Paragraph 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.
5. For this exemption to apply, it is necessary that the predicted effect ‘would, or could
reasonably be expected to’ occur.
6. The term ‘could’ in this instance, as the FOI Guidelines state at 5.17, requires an analysis
of whether there exists a reasonable expectation that an event, effect or damage could
occur. This ‘reasonable expectation’ cannot be a mere risk, possibility or chance of
prejudice. It must be based on reasonable grounds, a real, significant or material
possibility of prejudice, as the FOI Guidelines at 5.18 state.
7. Paragraph 6.122 of FOI Guidelines also state that paragraph 47E(d) also applies to
documents that relate to a complaint made to an investigative body, noting that “the
disclosure of this type of information could reasonably affect the willingness of people to
make complaints to the investigative body, which would have a substantial adverse effect
on the efficient conduct of the investigative body’s operations.”
8. The document found in scope includes material containing findings, comments and
suggestions relating to an investigation by the Ombudsman under subsection 12(4) of the
Ombudsman Act 1976.
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9. The Ombudsman is an investigative agency, involved in administering and enforcing the
Public Interest Disclosure Act 2013 (PID Act).
10. Pursuant to subsection 8(2) of the Ombudsman Act, Ombudsman investigations are dealt
with in private and the protection of those who make disclosures is central to the Public
Interests Disclosure (PID) Scheme.
11. I consider that the release of this document is likely to have a larger effect of inhibiting or
discouraging staff from freely and effectively communicating with investigative agencies
on matters relating to PIDs.
12. I am satisfied that public detriment could reasonably be expected if the Ombudsman is
compromised in its ability to obtain confidential information as part of future
investigations.
Section 47F – Personal privacy
13. Section 47F of the FOI Act conditionally exempts a document where “its disclosure
would involve the unreasonable disclosure of personal information about any person.”
Access must be provided unless access would, on the balance, be contrary to the public
interest. (subsection 11A(5) of the FOI Act).
14. Personal information means information or an opinion about an identified individual, of
an individual who is reasonably identifiable:
whether the information or opinion is true of not; and
whether the information or opinion is recorded in a material form or not.
15. I consider that the document contains such matter; specifically, the names of individuals.
16. In considering what is unreasonable, the Administrative Appeals Tribunal in
Re Chandra
and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51] stated:
…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…
17. Other factors to be considered include the nature, age and current relevance of the
information, any opposition to disclosure held by the person that the personal information
relates to, and the circumstances of an agency’s collection and use of the information
(‘
FG’ and
National Archives of Australia [2015] AICmr 26 at [47]).
18. I note that in
Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 (9 November 2020), Deputy President S A Forgie
found (at [130]):
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An individual may include his or her direct telephone number in correspondence directed
to other persons. Unless published on an agency’s website or made public in some other
way, such as on a pamphlet or report available to the public, I consider that disclosure
of an individual’s telephone number in his or her place of employment is unreasonable.
Its disclosure will provide an avenue by which others may choose to express their
displeasure with the individual or with that for which he or she is responsible but its
disclosure does not make any positive contribution to increasing public participation in
Government processes or in increasing scrutiny, discussion, comment and review of the
Government’s activities.
19. In relation to the question of whether disclosure would be unreasonable, the FOI
Guidelines provide, at paragraph 6.144:
For example, in Colakovski v Australian Telecommunications Corp, Heerey J
considered that ‘... if the information disclosure were of no demonstrable relevance to
the affairs of government and was likely to do no more than excite or satisfy the curiosity
of people about the person whose personal affairs were disclosed ... disclosure would be
unreasonable’. This illustrates how the object of the FOI Act of promoting transparency
in government processes and activities needs to be balanced with the purpose of s 47F
to protect personal privacy, although care is needed to ensure that an FOI applicant is
not expected to explain their reason for access to contrary to s 11(2).
20. 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:
Warren; Chief Executive Officer, Services Australia and (Freedom of information)
[2020] AATA 4557 at [83].
21. 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 as it relates to the findings of a
private Ombudsman investigation;
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 will not advance scrutiny of any decisions falling
within scope of your FOI request;
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.
22. I have therefore decided to the extent that the document includes personal information
of individuals, 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.
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Section 11A – Public interest test
23. Subsection 11A(5) of the FOI Act provides that an agency must give access to a
document if it is conditionally exempt unless access to the document would, on balance,
be contrary to the public interest.
24. 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 and inform debate on a matter of public
importance.
25. I have identified the following factors as weighing against disclosure:
disclosure of individuals’ personal information will not advance scrutiny of any
decisions falling within the scope of your FOI request;
disclosure would prejudice individuals’ right to privacy;
disclosure could lead to unwarranted approaches to the individuals which would
adversely impact their ability to perform their role and functions.
disclosure would reasonably be expected to prejudice the Ombudsman’s ability to
obtain confidential information;
disclosure would reasonably be expected to prejudice the proper and efficient conduct
of the investigations by the Ombudsman; and
disclosure could be expected to undermine the confidentiality provisions which are
central to the PID Scheme.
26. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining whether
access would be in the public interest. I have not considered these factors.
27. On balance, I find disclosure of the document would be contrary to the public interest.
To the extent that the material contained in the document is conditionally exempt under
paragraph 47E(d) and section 47F of the FOI Act, those parts are exempt from disclosure.
28. I am satisfied that these factors outweigh disclosure for the purposes of promoting the
objects of the FOI Act, including to inform the community of Government operation and
inform on a matter of public confidence.
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 agency authorised officer
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.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
