FEDERAL COURT OF AUSTRALIA
HARRY GIBBS COMMONWEALTH LAW COURTS BUILDING
119 NORTH QUAY
BRISBANE QLD 4000
15 March 2024
FOIBLES
By email
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear FOIBLES,
Request under the Freedom of Information Act
I refer to your email to the Federal Court of Australia (Court) dated 14 February 2024
requesting access to documents under the
Freedom of Information Act 1982 (Cth) (FOI Act).
On 11 March 2024, with the consent of the Federal Circuit and Family Court of Australia
(FCFCoA), and in accordance with section 16 of the FOI Act, the Court transferred paragraph
(a) of your request to the FCFCoA because that paragraph directly related to the FCFCoA. The
Court advised you of the transfer of paragraph (a) of your request to the FCFCoA in an email
dated 11 March 2024 and that the Court will consider and respond to the balance of the
paragraphs in your request.
For the avoidance of any doubt, this decision relates to paragraphs (b) and (c) of your request,
which read as follows:
Under the Freedom of Information Act 1982 (Cth), I request access to:
… b) any and all documents associated, in the broadest sense of that term, with the file PA-
2023-0137; and
c)
any and all documents associated, in the broadest sense of that term, with the file PA-
2023-0138.
Authorised decision-maker
I am authorised under section 23 of the FOI Act to make decisions on behalf of the Court in
relation to requests made under the FOI Act.
Searches undertaken
Extensive searches were undertaken by staff of the Court to identify any documents falling
within the scope your request. These searches included discussions with senior employees of
link to page 2
the Court, searches of personnel files and other files on the Information Management System
including shared drives, the email exchange server, and electronic document and records
systems.
As a result of the searches undertaken, a large number of documents were identified as falling
within the scope of your request. These documents include confidential and highly sensitive
material, including but not limited to, reports and communication between the Court, an
external provider and individual employees of the Court. I have decided not to provide specific
detail about each document in my decision, as doing so would reveal exempt matter (see
subsection 26(2) of the FOI Act).
From the searches undertaken, a total of two hundred and forty-eight (248) documents were
identified as falling within the scope of paragraphs (b) and (c) of your request. I have decided
not to publish an itemised list of the documents for two reasons:
• Firstly, due to the volume of documents that fell within the scope of paragraphs (b)
and (c) of your request; and
• Secondly and more importantly, given the nature of the documents and my decision
not to provide specific detail about each document so as not to reveal exempt
material
1.
However, I have decided to provide a list which broadly summarises the types of documents
that were captured within the scope of paragraphs (b) and (c) of your request. The documents
fall into the following categories of documents:
• Email communication between Court employees;
• Email communication from the Court to an external provider;
• Letters between Court employees;
• Letters between the Court and the external provider;
• Letters from external stakeholders to the Court;
• Procurement documentation – requests for quotes, proposals to meet requirements,
contracts and details regarding external providers employee’s qualifications;
• Signed consent forms;
• Investigation reports – draft, preliminary and final;
• Timesheets and invoices;
• Transcripts;
• File notes;
• Close circuit television (CCTV) footage;
• Images/photographs of individuals; and
• Voice recordings.
I am satisfied that by conducting these searches the Court has taken all reasonable steps to
identify the documents you have requested.
Decision
I have decided that pursuant to sections 47C, 47E and 47F of the FOI Act, to refuse your request
for access to documents that fall within the scope of paragraphs (b) and (c) of your request. I
am satisfied that the documents identified are conditionally exempt as they would disclose a
deliberative process and/or have an adverse effect on the operations of an agency and/or be an
1 Section 26(2) of the FOI Act.
2
unreasonable disclosure of personal information. Further, and on balance, disclosure would
be contrary to the public interest under subsection 11A(5) of the FOI Act.
I have taken the following into account in making my decision:
• the terms of paragraphs (b) and (c) of your request;
• the nature and content of the documents that fall within the scope of your request;
• the relevant provisions of the FOI Act and case law considering those provisions;
• the
Freedom of Information (Charges) Regulations 2019; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Reasons for Decision
Conditional exemption under section 47C of the FOI Act – Deliberative processes –
paragraphs (b) and (c)
I have considered whether the documents found in relation to paragraphs (b) and (c) are
conditionally exempt from disclosure under subsection 47C(1) of the FOI Act.
Subsection 47C(1) prescribes that:
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
In relation to requests that concern conditionally exempt documents containing deliberative
matter, the FOI Guidelines provides the following at 6.52:
… Deliberative matter is content that is in the nature of, or relating to either:
•
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, a deliberative process of the government, an agency or minister (s
47C(1)).
Relevantly, the FOI Guidelines also provide:
6.55 The deliberative processes exemption differs from other conditional exemptions in that no
type of harm is required to result from disclosure. The only consideration is whether the
document includes content of a specific type, namely deliberative matter. If a document does
not contain deliberative matter, it cannot be conditionally exempt under this provision,
regardless of any harm that may result from disclosure.
6.58 A deliberative process involves the exercise of judgement in developing and making a
selection from different options:
3
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The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing upon
one's course of action. In short, the deliberative processes involved in the functions of
an agency are its thinking processes – the processes of reflection, for example, upon
the wisdom and expediency of a proposal, a particular decision or a course of action.2
6.59 'Deliberative process’ generally refers to the process of weighing up or evaluating
competing arguments or considerations or to thinking processes – the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.3
6.60 The deliberative process must relate to the functions of an agency, minister or the
government of the Commonwealth. The functions of an agency are usually found in the
Administrative Arrangements Orders or the instrument or Act that established the agency. For
the purposes of the FOI Act, the functions include both policy making and the processes
undertaken in administering or implementing a policy. The functions also extend to the
development of policies in respect of matters that arise in the course of administering a
program. The non-policy decision making processes required when carrying out agency,
ministerial or governmental functions, such as code of conduct investigations, may also be
deliberative processes.4
6.61 A deliberative process may include the recording or exchange of:
•
opinions
•
advice
•
recommendations
•
a collection of facts or opinions, including the pattern of facts or opinions considered
•
interim decisions or deliberations [footnote omitted].
I am required to assess the material to decide if it relates to a deliberative matter or is in the
nature of deliberative processes.
5 Upon assessment, I am satisfied that the documents that fall
within the scope of your request includes deliberative matter. They consist of:
• letters (including draft letters) to Court employees;
• letters to an external provider;
• confidential draft and preliminary reports (marked “Sensitive: Personal”);
• email correspondence relating to draft and/or preliminary reports;
• email communications, including attachments, between Court employees and the
Court, and the Court and an external provider in relation to workplace investigations;
and
• recordings and exchanges in preparation for and to assist in deciding to procure the
services of an external provider. This includes the discussions that took place leading
up to and arranging any engagement.
The documents record opinions and processes relating to the workplace investigations and
disclose material prepared or recorded as part of that deliberative process before any decision
was made regarding those workplace investigations.
2 See
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See
British American Tobacco
Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19, [15]–[22]. See also
Carver and Fair Work Ombudsman [2011] AICmr 5 in relation to code of conduct investigations.
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18].
4 See
Re Murtagh and Commissioner of Taxation [1984] AATA 249
, Re Reith and Attorney-General’s
Department [1986] AATA 437
, Re Zacek and Australian Postal Corporation [2002] AATA 473.
5
Secretary, Department of Employment, Workplace Relations v Small Business and Staff Development and
Training Centre Pty Ltd (2001) 114 FCR 301.
4
link to page 5
Paragraph 6.67 of the FOI Guidelines provides that
“where material was gathered as a basis
for intended deliberations, it may be a deliberative matter”.6 The documents that fall within
the scope of paragraphs (b) and (c) of your request are documents that were
“gathered as a
basis for intended deliberations.” That is, the Court holds those documents as they formed the
basis of material for deliberating on workplace investigations. Further, they contain a
collection of facts and opinions relating to those investigations.
In the decision of
Raiz and Professional Services Review [2021] AATA 4360 (
Raiz and PSR),
the Administrative Appeals Tribunal found that material collected and assessed during the
course of an investigation made under the
Health Insurance Act 1973 (Cth) (Health Insurance
Act) by the Professional Services Review was deliberative material and conditionally exempt
under both sections 47C and 47E(d) of the FOI Act. In relation to the conditional exemption
under section 47C, the Tribunal found, at paragraph [87] of that decision:
I reject Dr Raiz’s arguments that this material is not deliberative material. I refer to paragraph
6.67 of the Guidelines that states that material that is gathered as a basis for intended
deliberations may be deliberative matter. It is clear from Mr Topperwein’s evidence that MBS
data must be considered as a part of a PSR Committee investigation and further that the
Committee must deliberate as to which MBS items to investigate. It is not relevant that the
instructions to retrieve certain data technically occurs after the deliberative process as these
instructions would reveal the outcomes of deliberations regarding which data to request.
Therefore, disclosure of the contents of the requests for data, the data itself, and the staffs’
interactions with the ‘owners’ of the data would all reveal information directly related to
deliberations and necessary for the Committee’s continuous deliberations.
I consider that the investigation under the Health Insurance Act, discussed in
Raiz and PSR, is
comparable to the investigations that are the subject of paragraphs (b) and (c) of your request.
The documents record exchanges about the investigations conducted by the external provider
and include specific and detailed references to those investigations. All of this occurred before
final conclusions/recommendations were reached by either the external provider or the Court.
The recording and/or exchange of those facts and opinions took place prior to the making of a
final decision regarding the topic and were part of a wider deliberative process. Therefore, I
find that disclosure of the documents would disclose deliberative matter and, for this reason,
the documents are conditionally exempt under subsection 47C(1) of the FOI Act.
The question of whether disclosure would or would not be contrary to the public interest under
subsection 11A(5) of the FOI Act is considered separately in the relevant section below.
Conditional exemptions under section 47E(c) and 47E(d) of the FOI Act – Operations of an
agency – paragraphs (b) and (c)
I have also considered whether the documents that fall within the scope of paragraphs (b) and
(c) are conditionally exempt from disclosure under subsections 47E(c) and 47E(d) of the FOI
Act.
6
Secretary, Department of Employment, Workplace Relations and Small Business v Staff Development and
Training Centre Pty Ltd (2001) 114 FCR 301.
5
Section 47E(c) and (d) relevantly provide that a document is conditionally exempt if its
disclosure under the FOI Act would, or could reasonably be expected to, do any of the
following:
… (c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
The FOI Guidelines provides the following in relation to subsection 47E(c):
6.113 Where the document relates to the agency’s policies and practices relating to the
assessment and management of personnel, the decision maker must address both elements of
the conditional exemption in s 47E(c), namely, that:
•
an effect would reasonably be expected following disclosure
•
the expected effect would be both substantial and adverse.
6.114 For this exemption to apply, the documents must relate to either:
•
the management of personnel – including the broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and
occupational health and safety
•
the assessment of personnel – including the broader performance management policies
and activities concerning competency, in-house training requirements, appraisals and
underperformance, counselling, feedback, assessment for bonus or eligibility for
progression.
[footnotes omitted]
Paragraph 6.123 of the FOI Guidelines provides guidance on section 47E(d):
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the
agency is undertaking its expected activities in an expected manner. Where disclosure of the
documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption will not be met and the conditional exemption will not apply.
The documents which were identified as falling within the scope of paragraphs (b) and (c) of
your FOI request relate to both the:
•
“management of personnel” in the sense of relating to human resources policies,
procedures and activities, and workplace investigations undertaken by or on behalf of
the Court; and
•
“assessment of personnel” in the sense of containing an assessment of the facts,
opinions and circumstances of the incidences and Court employees involved in the
workplace investigations.
For the reasons outlined below, I am satisfied that the documents captured by paragraphs (b)
and (c) of your FOI request are conditionally exempt, as disclosure under the FOI Act would
have a substantial adverse effect on the management or assessment of personnel by the Court
and on the proper and efficient operations of the Court under subsections 47E(c) and 47E(d) of
the FOI Act.
6
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In reaching this conclusion I have also considered
“the context of the document and the
integrity of the system” that require these documents.
7 All of the documents captured by
paragraphs (b) and (c) of your FOI request relate specifically to the Court’s human resources
policies, procedures and activities, and workplace investigation processes. For example, the
documents include letters to employees outlining the process, and engagement and
appointment documents for the external provider. In this context, the release of this
information would clearly have an adverse impact on the integrity of the Court’s workplace
investigation processes. It would likely result in the Court being a less attractive employer to
prospective or existing employees, and impact on the free communication between internal and
external stakeholders about such processes. Such information is usually communicated on the
understanding that it will remain confidential and not be made publicly accessible upon the
making of an FOI request.
The decision of
‘YU’ and Bureau of Meteorology (Freedom of Information) [2021] AICmr75
(29 November 2021) (
YU) upheld the importance of protecting information collected during a
Public Interest Disclosure (PID) investigation process. While the present circumstances do not
relate to PID investigations, the principles outlined in this case are relevant as the concept of
“other investigations into alleged misconduct”8 is also addressed. In
YU, the Information
Commissioner accepted the Bureau of Meteorology’s submission, at paragraph [31], as
follows:
The PID Act provides public officials who make a disclosure under that Act with legislative
protection from reprisals. I agree with BOM’s submission that certain operations of the agency
may be undermined if the confidentiality established under the PID Act was circumvented by a
request for information under the FOI Act. I am also satisfied disclosure may result in
employees losing confidence in BOM’s ability to maintain confidentiality during a PID or other
investigation into allegations of misconduct, which may have a substantial adverse effect on
the Bureau's ability to manage its staff.
I conclude that certain operations of the Court could be undermined if the confidentiality
required for the Court to properly conduct workplace investigations was circumvented by an
access application made under the FOI Act. The case of
YU also refers to other relevant case
law that highlights the importance of agencies being able to undertake confidential
investigative processes, and the fact that the need for confidentiality will often extend past the
time period of the investigation itself, since disclosure would likely undermine participation in
future investigative processes by agency staff and/or members of the public.
9
It is an important aspect of the operation of Commonwealth agencies that they can properly
undertake activities that relate to workplace investigations, and in doing so, resolve disputes,
identify any wrongdoing, and enable employees to feel supported and able to freely participate
in a process that leads to fair, objective, and informed decision-making.
Paragraph 6.122 of the FOI Guidelines further elaborates on the applicability of the conditional
exemption in section 47E(d) of the FOI Act, stating the following:
7 FOI Guidelines, paragraph 6.116.
8
‘YU’ and Bureau of Meteorology (Freedom of Information) [2021] AICmr75 (29 November 2021) at [31].
9 See, for example,
De Tarle and Australian Securities and Investments Commission (Freedom of information)
[2016] AATA 230;
‘HJ’ and Australian Federal Police [2015] AICmr 71;
Australian Broadcasting Corporation
and Australian Federal Police (Freedom of information) [2020] AICmr 23;
‘YA' and Australian Taxation Office
(Freedom of Information) [2021] AICmr 49;
‘YB’ and Department of Veterans' Affairs [2021] AICmr 52.
7
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The exemption may also apply to documents that relate to a complaint made to an investigative
body. 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 proper and efficient conduct of the investigative body’s operations. [footnote
omitted].
The release of the documents captured by paragraphs (b) and (c) of your request would clearly
bear on the Court’s
“proper and efficient operations”. Not only do the documents relate to
two confidential workplace investigations, and thereby the proper and efficient operations of
the Court, but the documents contain personal information that was collected as part of those
investigative processes. This information relates to employees of the Court who are critical to
the Court’s proper and efficient operations. Employees, of all classifications, support the
operations of the Court by performing important functions including adhering to the policies
and procedures of the Court and the APS Code of Conduct. The documents, thereby relate to
the Court’s ability to assess and investigate its staff.
I now turn to the question of whether disclosure of the documents in relation to paragraphs (b)
and (c) of your FOI request would or could reasonably be expected to have a substantial adverse
effect on the management and assessment of Court staff and on the Court’s proper and efficient
conduct of operations.
The release of the documents would, or could reasonably be expected to, have a substantial
adverse effect on the management and assessment of personnel by the Court, as well as on the
Court’s operations, by:
• putting at risk the confidentiality required for the Court and individuals to properly
engage in workplace investigations;
• discouraging individuals from disclosing suspected wrongdoing by Court employees;
• undermining participation in future investigative processes by Court employees and/or
individuals external to the Court;
• compromising the Court’s ability to carry out its obligations under various legislation
10
and its ability to ensure that allegations of misconduct are properly investigated;
• adversely impact the Court’s ability to support, manage, assess or investigate its own
staff;
• prejudicing the relevant individuals’ right to privacy, including undermining the
expectations of Court employees regarding the protection of their privacy;
• negatively impact the ability of the relevant employees to perform their current role;
• adversely affect the health and wellbeing of the relevant employees, including by
causing them stress and anxiety by linking them to a particular workplace investigations
and/or allegations;
• exposing the relevant individuals to the risk of having their personal details and the
circumstances of their involvement in workplace investigations the subject of
speculation and publicity;
• damaging the relevant individuals’ relationships with colleagues and peers; and
• damaging the relevant individuals prospects of future employment.
10 Including but not limited to the
Public Service Act 1999 (Cth),
Fair Work Act 2009 (Cth),
Australian Human
Rights Commission Act 1986 (Cth),
Workplace Health and Safety Act 2011 (Cth),
Racial Discrimination Act
1975 (Cth) and the
Sex Discrimination Act 1984 (Cth).
8
I also note that disclosure of the information requested may likely breach the Court’s privacy
and confidentiality obligations under the
Privacy Act 1988 (Cth) (Privacy Act).
Further, the confidential written communication relates to a number of employees who were
directly involved in the workplace investigations. Disclosure of the names of multiple
individuals and/or information in the documents concerning those individuals could impact
their performance and morale. In addition, disclosure may lead to disharmony between them
and other staff of the Court. This would, in turn, have a substantial adverse effect on the proper
and efficient conduct of the operations of the Court generally, and could result in employees
choosing to leave the employ of the Court.
For the reasons above, I consider that the documents captured by paragraphs (b) and (c) of your
request relate to the operations of the Court and, if disclosed, would or could reasonably be
expected to have a substantial adverse effect on both the
“management or assessment” of
personnel and the
“proper and efficient conduct of the operations” of the Court. Accordingly,
I have determined that the documents are conditionally exempt under subsections 47E(c) and
47E(d) of the FOI Act.
As discussed in the relevant section below, I am satisfied that disclosure would be contrary to
the public interest under subsection 11A(5).
Conditional exemption under section 47F of the FOI Act – Personal privacy – paragraphs
(b) and (c)
I have considered whether the documents that fall within the scope of paragraphs (b) and (c)
of
your FOI request are conditionally exempt from disclosure under subsection 47F(1) of the FOI
Act.
Subsection 47F(1) prescribes that:
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).
The term
“personal information” is defined in subsection 4(1) of the FOI Act to have the same
meaning as in section 6 of the Privacy Act that is:
. .information or an opinion about an identified individual, or an individual who is reasonably
identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in material form or not.
To determine whether personal information is conditionally exempt under subsection 47F(1),
I am required to consider whether disclosure of that personal information would be
unreasonable.
In considering what is unreasonable, the AAT in
Re Chandra and Minister for Immigration
and Ethnic Affairs [1984] AATA 437 at 259 stated that:
…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
9
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…it is also necessary in my view to take into consideration the public
interest recognised by the Act in the disclosure of information … and to weigh that interest in
the balance against the public interest in protecting the personal privacy of a third party…
In relation to the matters that ought to be taken into account in determining whether disclosure
would be unreasonable, subsection 47F(2) of the FOI Act prescribes that:
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.
In relation to requests for documents that contain personal information about public servants,
the FOI Guidelines stipulate the following:
6.156 A document may, however be exempt for another reason, for example, where disclosure
would, or could reasonably be expected to, endanger the life or physical safety of any person
(s 37(1)(c)). In addition, where an individual has a propensity to pursue matters obsessively
and there is no need for them to contact a particular public servant in the future, disclosure of
the public servant’s name may be unreasonable.
I have determined that the documents that fall within the scope of paragraphs (b) and (c) of
your request are conditionally exempt under subsection 47F(1) of the FOI Act as they contain
information that is
“personal information” as defined in subsection 4(1) of the FOI Act and
for which disclosure of that personal information would be
“unreasonable” under subsection
47F(1) of the FOI Act.
The
“personal information” contained in the documents includes full names, work and
personal email addresses, work telephone numbers, mobile telephone numbers, signatures,
references to individual employment arrangements, images including CCTV and photographs,
voice recordings, details of individuals’ personal (non-work related) circumstances, and details
of their involvement in the investigations. The documents also consist of confidential email
communication (some with attachments) exchanged during the investigations. In addition to
the types of personal information mentioned above, these documents contain information about
individuals, including details of their current employment, working arrangements, workplace
incidences and suitability for certain roles. Such information is clearly personal, and disclosure
would have detrimental effects on the privacy of those individuals. Employees of the Court
have a right to privacy around their personal details, employment arrangements and
involvement in any workplace investigation. Other individuals and external providers also
have a right to privacy around information provided to the Court in circumstances where it
would not reasonably be expected to be made publicly available.
This information is clearly
“personal information” that would be
“unreasonable” to disclose
under subsection 47F(1) of the FOI Act. Not only is the disclosure unreasonable, but disclosure
may also render the Court in breach of its obligations to protect the personal privacy of its staff
and other individuals concerned. The information contained within the documents is personal
and specific to the individuals and I conclude that much of this information makes them easily
10
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identifiable.
11 It is also likely that the Australian community would reasonably regard it as
sensitive personal information in which there is no legitimate public interest.
Further, none of these documents would normally be made publicly available. They are, by
their very nature, internal and/or highly sensitive communication that would carry a reasonable
expectation that they be confidential in nature. Documents relating to employment, a person’s
suitability for a certain role, their working arrangements and their involvement in any
workplace investigation are rarely disseminated in a public forum. It is reasonable to conclude
that with respect to the investigations undertaken and the correspondence (including any
attachments) that was received and responded to, was done so on a confidential and need-to-
know basis. Release of such information would be in direct conflict with the Court’s privacy
obligations under the Privacy Act and would damage the public’s trust in the Court’s ability to
keep such matters confidential. Release of the information could also jeopardise the identity
of persons who have made disclosures and participated in the workplace investigations.
For completeness, I consider that even if some of the personal information was published in
one context, this does not mean it is not personal information for the purposes of the Privacy
Act. The FOI Guidelines provide guidance on the issue of who is reasonably identifiable. At
paragraph 6.135 it is said that
“whether or not the individual is reasonably identifiable depends
on the practicability of linking pieces of information to identify the individual.” At paragraph
6.136 the FOI Guidelines provide that:
The information needs to convey or say something about a person, rather than just identify
them. The mere mention of a person’s name or signature may, however, reveal personal
information about them depending on the context … [footnote omitted]
Information provided in employment related documentation relating to specific individuals and
their involvement in any workplace incidences usually contains information that is intended to
“convey or say something about a person”. Again, looking at the context in which this
personal information was provided, much of it will be identifying due to its detailed nature and
the purpose of its provision.
In addition to the personal information outlined above, the documents also include the names,
titles, signatures, work email addresses and direct telephone numbers of public servants.
Publication of the names and titles of public servants is one thing, but revealing telephone
numbers and email addresses that give direct access to them is another.
12 Those direct contact
details are, generally, not well-known nor available from publicly accessible sources.
Disclosure would provide an avenue to express displeasure with those individuals, and a means
to pursue matters through them when there is no need for those individuals to be contacted.
Although some of the direct contact details are included in some of the documents because of
the individuals’ usual duties or responsibilities, I consider that, in the circumstances, such direct
contact information is unreasonable to disclose.
Overall, I am not satisfied that there exists or should exist any presumption that the documents
should be released merely because the personal information in them relates to employees of
the Court and public servants. The information contained in the documents is personal,
confidential, and highly sensitive in nature. Where that information concerns workplace
investigations, the names and the assessment of an individual’s personal and professional
11 FOI Guidelines, paragraph 6.131.
12 See
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 (9
November 2020) at [128], per (Deputy President S A Forgie).
11
link to page 12
attributes are not included in the emails because of their usual duties or responsibilities. They
are included because of some connection with an investigation. Disclosure would ultimately
prejudice these individuals’ right to privacy.
I also consider that disclosure of the names, direct contact details and other identifying
information could cause significant distress to the people concerned. Other effects would, or
could reasonably be expected, to include destroying Court employees trust in the
confidentiality of workplace investigation processes and undermining the morale of
employees. Disclosure may fetter the ability of public servants to deliberate as part of such
investigative processes and could ultimately prejudice the individual protection of the right to
privacy.
I turn to one final consideration in determining whether the personal information within the
documents that fall within the scope of paragraphs (b) and (c) of your request would be
unreasonable to disclose. In
‘BA’ and Merit Protection Commissioner [2014] AICmr 9 (30
January 2014), the Australian Information Commissioner held at paragraph 81:
… the FOI notion of ‘disclosure to the world at large’ has different meaning with developments
in information technology. It is now considerably easier for a person who has obtained
information under the FOI Act to disseminate that information widely, to do so anonymously
and to comment upon or even alter that information … Material that is published on the web
may remain publicly available for an indefinite period. It may cause anxiety to a public servant
that material about their suitability for a particular appointment can be publicly available long
after the appointment and to an indeterminate audience.
I give considerable weight to the fact that the FOI Act
“does not control or restrict any
subsequent use or dissemination of information released” (per paragraph 6.143 of the FOI
Guidelines above). This is an important consideration.
Given the nature of the documents captured by paragraphs (b) and (c) of your FOI request, I
consider that disclosure of the personal information in those documents would constitute an
“unreasonable disclosure of personal information”. Accordingly, the documents you have
requested are conditionally exempt under subsection 47F(1) of the FOI Act.
As discussed below, I am satisfied that disclosure would be contrary to the public interest under
subsection 11A(5) of the FOI Act.
Public interest test
In finding that the documents falling within paragraphs (b) and (c) of your FOI request are
conditionally exempt pursuant to sections 47C, 47E and 47F of the FOI Act, I am required to
consider under subsection 11A(5) of the FOI Act whether it would be contrary to the public
interest to give you access at this time. This test is applied in addition to any public interest
considerations already discussed above and may result in the need to consider one or more
factors twice.
13
Subsection 11A(5) of the FOI Act provides:
13 FOI Guidelines, paragraph 6.138.
12
link to page 13 link to page 13
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.
There are a number of factors that must be taken into account in considering the public interest
test, which are set out in subsection 11B(3) of the FOI Act. There are also certain factors which
must not be taken into account (see subsection 11B(4) of the FOI Act). The FOI Guidelines
provide non-exhaustive lists of other factors favouring disclosure (see paragraph 6.19), and
factors against disclosure (see paragraph 6.22), that may be relevant in certain circumstances.
Paragraph 6.5 of the FOI Guidelines provide the following elaboration on the “public interest
test”:
The public interest test is considered to be:
•
something that is of serious concern or benefit to the public, not merely of individual
interest
•
not something of interest to the public, but in the interest of the public
•
not a static concept, where it lies in a particular matter will often depend on a
balancing of interests
•
necessarily broad and non-specific, and
•
related to matters of common concern or relevance to all members of the public, or a
substantial section of the public [footnotes omitted]
.
Importantly, and as provided in paragraph 6.5 of the FOI Guidelines, the test requires more
than something merely being
of “interest” to the public. Rather, the question is whether
disclosure of the document/s is
“in the interest” of the public and such interests must be
balanced.
I accept that there is a public interest in the integrity of public sector processes and that
disclosure of documents in relation to workplace investigations would go some way to
promoting the objects of the FOI Act. Specifically, certain aspects of the workplace
investigations documents could be considered to promote
“better-informed decision-making”
by the public sector
14 and to enhance
“scrutiny, discussion, comment and review” of public
sector activiti
es.15
Whilst disclosure of certain documents might be considered to promote the objects of the FOI
Act, there are several factors that weigh against a finding that it would be in the public interest
to disclose the specific documents requested. In considering the public interest test, I have
taken many factors into account. The factors weighing against disclosure are that disclosure
could reasonably expected to:
• prejudice the protection of an individual’s right to privacy, including where that privacy
is protected under the Privacy Act. The documents contain sensitive personal
information about numerous individuals. The information does not necessarily concern
their usual duties/responsibilities and is not well-known or available from publicly
accessible sources;
• undermine the confidentiality and trust that are fundamental tenants of the Court being
able to properly conduct workplace investigations;
14 Subsection 3(2)(a) of the FOI Act.
15 Subsection 3(2)(b) of the FOI Act.
13
link to page 14
• fetter the ability of public servants to deliberate on matters in relation to confidential
internal investigations;
• undermine the protection of people who make, or wish to make, complaints, which
could deter disclosures of suspected wrongdoing, thereby having a substantial adverse
effect on the management and assessment of staff of the Court;
• have a substantial adverse effect on the success of the Court’s investigation processes,
given it relies on the willingness of individuals to participate in a frank and candid
manner. This could also damage the Court’s ability to support, manage, assess or
investigate its own staff;
• compromise the impartiality and independence of people who investigate workplace
matters, including because of fear of risk that their opinions, findings and
recommendations may be disclosed publicly;
• have a substantial adverse effect on the willingness of public servants to provide
evidence for future investigations, which would have a substantial adverse effect on the
Court’s capacity to manage and assess its personnel;
• harm the interests of the individuals to whom the documents relate, including in relation
to their individual wellbeing, and their relationships with colleagues;
• prejudice the management function of the Court by destroying trust in the Court’s
ability to keep investigative processes and employee information confidential;
• lower the morale of employees and lead to deterioration in employee productivity and
performance due to the negative impact that disclosure would have on employee trust
and confidence in the Court;
• lead to unwarranted approaches to public servants which would adversely impact their
ability to perform their role and functions; and
• potentially result in misuse and cause harm and anxiety for the persons concerned
because the FOI Act does not restrict any subsequent dissemination of information
disclosed or the release of the documents into the public domain.
I give significant weight to each of the above factors, and after careful consideration, I have
concluded that the benefit to the public resulting from disclosure is outweighed by the benefit
to the public of withholding the information. On balance, it appears that the matter is not
necessarily
“of common concern or relevance to all members of the public, or a substantial
section of the public.”16
Therefore, I have decided that the disclosure of the documents subject to the conditional
exemptions would be contrary to the public interest and, on that basis, access to the documents
should be refused.
Redaction not appropriate under section 22 of the FOI Act
Section 22 of the FOI Act requires me to consider whether access may be granted to edited
copies of the documents, with exempt or irrelevant matter deleted. Notwithstanding my
findings, detailed above, to refuse access to the documents in paragraphs (b) and (c) of your
request, on the basis that they are exempt under the FOI Act, section 22 requires me to consider
whether access may be granted to the documents following the redaction of exempt
information.
In relation to section 22 of the FOI Act, the FOI Guidelines explain, at paragraph 3.98:
16 FOI Guidelines, paragraph 6.5.
14
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.
I consider that, under section 22, upon redacting the exempt information due to the conditional
exemptions of deliberative processes, operations of an agency and personal privacy, the
relevant documents pertaining to paragraphs (b) and (c) retain no value or meaning. It would
therefore be futile to grant you access to a redacted copy of the documents as they would
convey very
“little of its content or substance.”
Charges
You have not been charged for the processing of your request.
Your Review Rights
If you are dissatisfied with my decision, you may apply for internal review or to the Information
Commissioner for review of those decisions. I encourage you to seek internal review as a first
step as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Court for an internal review
of my decision. The internal review application must be made within thirty (30) days of the
date of this letter.
Where possible, please attach reasons as to why you believe review of the decision is necessary.
The internal review will be carried out by another officer within thirty (30) days.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner
to review my decision. An application for review by the Information Commissioner must be
made in writing within sixty (60) days of the date of this letter and be lodged in one of the
following ways:
online:
emai
l: xxx@xxxx.xxx.xx
post: Director of FOI Dispute Resolution, GPO Box 5288, Sydney NSW 2001
More information about the Information Commissioner review is available on the Office of the
Australian Information Commissioner (OAIC) website at:
https://www.oaic.gov.au/freedom-
of-information/freedom-of-information-guidance-for-government-agencies/freedom-of-
information-reviews/information-commissioner-review-process.
Complaints
If you are dissatisfied with the way the Court has handled your FOI request, you may complain
to the Information Commissioner in writing. There is no fee for making a complaint. More
information about making a complaint is available on the OAIC website, including a link to
15
the online complaints form which the OAIC recommends using for complaints, at:
https://www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-
government-agencies/foi-guidelines/part-11-investigations-and-complaints
Yours sincerely,
B Henderson
FOI Officer
16
