Cynthia T
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 1542
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 20 July 2025 for access to documents held by the Australian Public
Service Commission (the Commission).
2. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
3. The FOI Act and other legislation referred in this letter is publicly available from
www.legislation.gov.au.
Scope of your request
4. You requested access to documents on the following terms:
‘Under the Freedom of Information Act 1982 (Cth), I request access to any and all
correspondence, sent or received by Dr Gordon de Brouwer from 1 July 2023 to the date of this
request, that relates to (in the broadest sense) PID-2020-400006, an investigation handled by
Kate McMullan of the APSC.
Correspondence relating to PID-2020-400006 could include, but is not limited to, things like
memos from the Ombudsman’s office arising from the Ombudsman’s investigation, memos about
FOI requests, internal memos about the disclosure investigation (including the inadequacy of the
investigation), memos about referral of the underlying issues to the NACC (the referral has been
flagged in the AFR: https://www.afr.com/politics/federal/corruption-boss-warns-on-lawyers-
consultants-and-the-election-20240805-p5jzlg ) etc.’
Decision on your FOI request
5. I am satisfied that all reasonable steps have been taken to locate documents relevant to your
request.
6. I have identified thirteen (13) documents in scope of your request.
• Document 1: Email to DLO Gallagher’s Office
• Document 2: Email from the APS Commissioner
• Document 3: Email to the APS Commissioner
• Document 4: Attachment to Document 3
• Document 5: Attachment to Document 3
• Document 6: Applicant’s submissions to the OAIC
• Document 7: Signed brief to the APS Commissioner
• Document 8: Attachment A to Document 7
• Document 9: Attachment B to Document 7
• Document 10: Attachment C to Document 7
• Document 11: Attachment D to Document 7
• Document 12: Attachment E to Document 7
• Document 13: Attachment F to Document 7
7. Document 3 has 12 attachments. Ten (10) of the attachments are documents that are publicly
available online via the RightToKnow website and related forums. In accordance with the objects
of the FOI Act to promote public access to government-held information promptly and at the
lowest reasonable cost (subsection 3(4)), and recognising the administrative access provisions
(section 3A), access to these documents is provided via the hyperlinks below, which will also be
provided to you in the covering email for your ease of access:
•
Letter from Commonwealth Ombudsman
•
Senate Estimates brief
•
LEX 187 – Australian Public Service Commission FOI decision
•
LEX 190 – Australian Public Service Commission FOI decision
•
LEX 510 - Australian Public Service Commission FOI decision
•
LEX 511 – Australian Public Service Commission FOI decision
•
LEX 520 – Australian Public Service Commission FOI decision
•
LEX 547 – Australian Public Service Commission FOI decision
•
LEX 550 – Australian Public Service Commission FOI decision
•
LEX 658 – Australian Public Service Commission FOI decision
8. The remaining attachments to Document 3 are listed separately as Documents 4 and 5.
9. I have decided to grant you partial access to Documents 1 to 5 and refuse you access to Documents
6 to 13, on the basis the documents are exempt in part or full.
10.
Attachment A sets out the grounds on which the documents are exempt. My reasons are set out in
Attachment B to this notice.
Review rights
11. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Contacts
12. If you require clarification on matters contained in this letter please contact the Commission’s
FOI Officer by email at
xxx@xxxx.xxx.xx.
Yours sincerely
SM
Authorised FOI decision maker
19 August 2025
B Block, Treasury Building Parkes Place
West PARKES ACT 2600 GPO Box
3176 CANBERRA ACT 2600
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document Description
Exemption grounds
1
Email to DLO Gallagher’s Office
Section 47F (personal privacy) in part.
2
Email from the APS Commissioner
Section 47F (personal privacy) in part.
3
Email to the APS Commissioner
Section 47F (personal privacy) in part.
4
Attachment to Document 3
Section 47F (personal privacy) in part.
5
Attachment to Document 3
Section 47F (personal privacy) in part.
6
Applicant’s submissions to the OAIC
Section 47E(d) (certain operations of agencies) and Section
47F (personal privacy) in full.
7
Signed brief to the APS Commissioner
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
8
Attachment A to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
9
Attachment B to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
10
Attachment C to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
11
Attachment D to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
12
Attachment E to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
13
Attachment F to Document 7
Section 42 (legal professional privilege) and Section 47C
(deliberative processes) in full.
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ATTACHMENT B
Reasons for decision
1. In making my decision, I have had regard to:
• the terms of your request;
• the content of the documents;
• the FOI Act; and
• the FOI Guidelines issued by the Australian Information Commissioner.
2. In making the decision to exempt the documents in full and in part, I have applied the
following exemptions:
• section 42 – legal professional privilege;
• section 47C – deliberative processes;
• section 47E(d) – certain operations of agencies;
• section 47F – personal privacy.
Exemptions
Section 42 – Legal Professional Privilege
3. Section 42(1) of the FOI Act provides that a document is an exempt document if it is
of such a nature that it would be privileged from production in legal proceedings on
the ground of legal professional privilege.
4. In determining whether or not the material contained in Documents 7 to 13 could be
privileged from production in legal proceedings I have considered:
• Whether there is a legal adviser-client relationship;
• Whether the communication was for the dominant purpose of giving or receiving
legal advice or use in connection with actual or anticipated litigation;
• Whether the advice given is independent; and
• Whether the advice given is confidential.
5. The Commission has a General Counsel Branch staffed by lawyers admitted to practice
and who hold practising certificates. The lawyers in this Branch provide an
independent advice and support function, acting on instructions from other line areas
within the Commission. When providing legal advice, General Counsel Branch staff
provides advice to Commission employees and office holders as clients, they are not
acting as decision makers.
6. Document 7 (and its attachments, namely Documents 8 to 13) comprises a brief to the
APS Commissioner, marked “Confidential” and “Legal Professional Privilege”. The
brief contains confidential communications between the Commissioner and the
Commission’s legal advisers acting in their professional capacity, for the dominant
purpose of giving or receiving legal advice. I am satisfied that the brief was provided
by the Commission’s General Counsel Branch to the APS Commissioner in an
independent legal adviser-client relationship, and in confidence. I am satisfied that
Documents 7 to 13 meet the threshold for legal professional privilege to apply, and are
not merely administrative in nature.
- 5 -
7. There is no evidence that legal professional privilege has been waived, or that the
Commission wishes to disclose the privileged information.
8. Further, in accordance with the recent decision of
Shafran and Secretary, Department
of Veterans' Affairs (Freedom of information) [2025] ARTA 799, specifically
paragraph 33, I am satisfied that the privilege attaches to the whole of the
communication, and therefore release of the documents in part is not appropriate.
9. I am therefore satisfied that the relevant information in Documents 7 to 13 are exempt
under section 42(1) of the FOI Act.
Section 47C – Deliberative processes
10. Section 47C of the FOI Act conditionally exempts documents containing deliberative
matter. Deliberative matter generally consists of matter in the nature of, or relating to:
• an opinion, advice or recommendation that has been obtained, prepared or recorded;
or
• a consultation or deliberation that has taken place in the course of, or for the
purposes of, the deliberative processes involved in the functions of an agency,
Minister or the Commonwealth Government.
11. Deliberative matter does not include operational information or purely factual
material, particular types of reports, or records or formal statement of reasons for a
final decision given in the exercise of a power or of an adjudicative function.
12. A deliberative process includes the recording or exchange of opinions, advice,
recommendations, a collection of facts (including the pattern of facts or opinions
considered) and interim decisions or deliberations.
13. In
Re Robert William Booker and Department of Social Security [1990] AATA 218,
Deputy President Forgie, in considering the meaning of ‘consultation’ determined that:
“in order for there to be consultation, there must be something of a two way exchange
between at least two parties.”
14. Although I have decided that documents 7 to 13 are exempt from disclosure on the
basis of legal professional privilege, in light of the above, I am also satisfied that
Documents 7 to 13 relate to the recording or exchange of advice, consultation, and
recommendations. I am further satisfied that this deliberative matter was obtained in
the course of a deliberative process as described above in paragraph 12, involved in
the functions exercised by an Australian Government agency, being the Australian
Public Service Commission.
15. For this reason, I am of the view that Documents 7 to 13 would also be conditionally
exempt under section 47C of the FOI Act.
Section 47E(d) – certain operations of agencies
16. Section 47E(d) of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
link to page 6 link to page 6 link to page 6
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(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
17. In determining whether disclosure “could reasonably be expected to” have a substantial
adverse effect, “could” is a less stringent standard than “would” and requires analysis
of the reasonable expectation, rather than the certainty, of an event, effect or damage
occurring.
1
18. A “substantial adverse effect” connotes an “adverse effect which is sufficiently serious
or significant to cause concern to a properly informed reasonable person”
.2
“Substantial” in this context has been interpreted as including “loss or damage that is,
in the circumstances, real or of substance and not insubstantial and nominal”.
3
19. Document 6 includes submissions made by an applicant to the Office of the Australian
Information Commissioner (OAIC) for an Information Commissioner (IC) review. To
enable OAIC, which has a critical oversight function, to properly process IC reviews,
it is essential for a party’s submissions to remain confidential to not adversely affect
future IC reviews.
20. I also consider disclosure of the content of document 6 would likely adversely affect
the ability of the Commission to properly and efficiently fulfil its functions during IC
reviews. During such reviews, the Commission’s functions include:
• Handling of IC reviews in cooperation with the OAIC;
• Maintaining open, frank, and full participation in review processes by both
applicants and agencies;
• Protecting sensitive handling of personnel or APS conduct matters which may be
the subject of an FOI decision under review.
21. This view is supported by paragraph 6.114 of the FOI Guidelines, which provides:
The conditional exemption may also apply to a document that relates to a complaint
made to an investigative body. 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 proper and efficient conduct of the
investigative body’s operations. Further, disclosure of information provided in
confidence by parties to a complaint or investigation may reduce the willingness of
parties to provide information relevant to a particular complaint and may reduce their
willingness to participate fully and frankly with the investigative process. In such cases
the investigative body’s ability to obtain all information would be undermined and this
may have a substantial adverse effect on the proper and efficient conduct of the
investigative body’s operations.
22. Disclosure of Document 6 would, or could reasonably have a substantial adverse effect
on OAIC’s and the Commission’s operations by:
• deterring future applicants from being candid in their submissions, in fear that their
submissions could be released under FOI in the future;
• causing applicants to withhold relevant information during the IC review or frame
information defensively rather than cooperatively;
1 Paragraph 6.15 of the FOI Guidelines.
2
Thies and Department of Aviation [1986] AATA 141 at [24].
3 Paragraph 6.18 of the FOI Guidelines.
link to page 7
- 7 -
• causing potential delays during the IC review process, prejudicing the
Commission’s distribution of government resources;
• hindering OAIC’s ability to process IC reviews effectively and efficiently.
23. It is relevant to my decision that the OAIC has not yet deliberated on the matter to which
the submissions relate, so the submissions remain confidential to the parties and an
implied undertaking of confidentiality applies to the submissions: see
Hearne v Street
(2008) 235 CLR 125.
24. For the reasons above, I have decided Document 6 is a conditionally exempt document
under paragraph 47E(d) of the FOI Act, as it would, or could reasonably be expected to
have a substantive adverse effect on the proper and efficient conduct of the operations
of OAIC and the Commission and the confidentiality of the submissions made by a party.
Section 47F – personal privacy
25. Subsection 47F(1) of the FOI Act provides:
(1) A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including a
deceased person).
26. For the purposes of the FOI Act, “personal information” is defined as information or an
opinion about an identified individual, or an individual who is reasonably identifiable
:4
• whether the information or opinion is true or not; and
• whether the information or opinion is recorded in a material form or not.
27. I consider that Documents 1 to 5 contain parts that are conditionally exempt;
specifically:
• the names and contact information of non-Senior Executive Staff within the
Australian Public Service (
APS); and
• the names and contact information of other FOI applicants.
28. Subsection 47F(2) of the FOI Act provides:
(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(a) the extent to which the information is well known; (b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
29. I have had regard to the matters I must consider under subsection 47F(2) of the FOI Act
in determining whether the disclosure of the personal information would involve the
unreasonable disclosure of personal information.
4 Section 6 of the
Privacy Act 1988.
- 8 -
30. Under paragraph 6.137 of the FOI Guidelines, key factors in determining whether
disclosure is unreasonable include:
• the author of the document is identifiable;
• the document contains third party personal information;
• release of the document would cause stress to the third party;
• no public purpose would be achieved through release.
31. Under paragraph 6.138 of the FOI Guidelines, other factors include:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the information
relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s or minister’s collection and use of the
information;
• the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act;
• any submissions an FOI applicant chooses to make in support of their request as to
their reasons for seeking access and their intended or likely use or dissemination of
the information; and
• whether disclosure of the information might advance the public interest in
government transparency and integrity.
32. 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…”
33. 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]).
34. 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]):
“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
link to page 9 link to page 9
- 9 -
public participation in Government processes or in increasing scrutiny, discussion,
comment and review of the Government’s activities.”
35. In relation to the question of whether disclosure would be unreasonable, in
‘BA’ and
Merit Protection Commissioner [2014] AICmr 9, former Australian Information
Commissioner, Professor John McMillan cited Heerey J in
Colakovski v Australian
Telecommunications Corporation who considered that:
“… if the information disclosed 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 personal affairs of the person whose personal
affairs were disclosed ... disclosure would be unreasonable.”
36. Professor McMillan further explained that:
“…the object of the FOI Act to promote 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 contrary to s 11(2).”5
37. 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.
6
38. 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;
• 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.
39. I have therefore decided to the extent that Documents 1 to 5 include the names and
contact information of non-Senior Executive Staff within the APS and FOI applicants,
those parts are conditionally exempt from disclosure under section 47F of the FOI Act
because it would involve the unreasonable disclosure of their personal information.
Sections 11A and 11B – public interest factors
40. Subsection 11A(5) of the FOI Act provides:
(5) The agency or Minister must give the person access to the document if it is
5 ‘BA’ and Merit Protection Commissioner [2014] AICmr 9 [64].
6
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 at [83].
- 10
conditionally exempt at a particular ti me unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.
41. 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 documents
would promote the objects of the FOI Act and inform debate on a matter of public
importance.
42. I have identified the following factors as weighing against disclosure of certain
information or documents:
Section 47F conditional exemption:
• disclosure of individuals’ personal information will not advance any scrutiny of any
decisions falling within the scope of your FOI request;
• disclosure would prejudice individuals’ right to privacy; and
• disclosure could lead to unwarranted approaches to the individual which would
adversely impact their ability to perform their role and functions, noting that general
enquiry phone numbers and email addresses are available;
Section 47E(d) conditional exemption:
• disclosure could prejudice candid IC review processes;
• disclosure could cause inefficiency for OAIC and the Commission in resolving FOI
disputes;
• disclosure would be contrary to the implied obligation of confidence with respect
to submissions that have not been relied on in proceedings; and
• disclosure could deter future applicants from requesting an IC review, due to fears
of their submissions being released.
Section 47C conditional exemption
• disclosure of conditionally exempt information under 47C could reasonably be
expected to prejudice the ability of the Commission to manage future
deliberations;
• disclosure could prejudice the relationship between the Commission and its legal
advisors; and
• disclosure of deliberative matter could unreasonably disclose deliberations,
consultations, and the exchange of advice and recommendations undertaken by a
Government agency in the course of exercising its functions.
43. 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.
44. On balance, I find disclosure of parts of Documents 1 to 5 would be contrary to the
public interest. Further, I find disclosure of Documents 6 to 13, in part or full, would
be contrary to the public interest. To the extent that the material contained in the
documents that are conditionally exempt under section 47F, paragraph 47E(d) and
section 47C, I have decided that those parts are exempt from disclosure in the public
interest.
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.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
