29 April 2025
Neroz
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Neroz
Freedom of Information (FOI) request FA 25/04/00014 – Decision
On 1 April 2025, the Department of Home Affairs (the Department) received a request for access
to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Under the FOI Act I am seeking all documents pertaining to the all staff email sent in
March by Matt Strauss regarding Work from home concerns during cyclone Alfred.
- In particular I am seeking documents showing how the Senior Executive staff (ses),
secretary, the department and/or the Minister dealt with this concern.
- a copy of the email Mr Strauss sent to all staff.
- Documents showing disciplinary action taken for Mr strauss's breach of departmental
and APS code of conduct .
- Documents showing the SES, Secretary, department and/or ministers response and
action taken to address the concern.
I understand personal information will be refused and/or redacted under s47F, however I
wish to seek how the department dealt with Mr Strauss's concerns and to ensure the
department upheld the code of conduct as his email was a clear violation of this.
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Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to the following:
•
the terms of your request
•
the documents relevant to the request
•
the FOI Act
•
Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines)
•
advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
4
Documents in scope of request
The Department has identified 67 documents with attachments as falling within the scope of your
request. These documents were in the possession of the Department on 1 April 2025 when your
request was received.
Attachment A is a schedule which describes the relevant documents and sets out my decision
in relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is as follows:
•
Exempt 67 documents with attachments in full from disclosure.
6
Reasons for Decision
Where the schedule of documents indicates an exemption claim has been applied to a document
or part of document, my findings of fact and reasons for deciding that the exemption provision
applies to that information are set out below.
6.1 Section 42 of the FOI Act – Legal Professional Privilege
Section 42 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.
I am satisfied that documents marked ‘
s.42(1)’ in Attachment A are confidential communications
passing between the Department and its legal advisers, for the dominant purpose of giving or
receiving legal advice.
In determining that the communication is privileged, I have taken into the consideration the
following:
• there is a legal adviser-client relationship
• the communication was for the purpose of giving and/or receiving legal advice;
• the advice given was independent, and
• the advice was given on a legal-in-confidence basis and was therefore confidential.
The content of these documents are not part of the rules, guidelines, practices or precedents
relating to the decisions and recommendations of the Department. The documents do not fall
within the definition of operational information and remain subject to legal professional privilege.
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I have decided that documents marked ‘
s.42(1)’ in Attachment A are exempt from disclosure
under section 42 of the FOI Act.
6.2 Section 47E of the FOI Act – Operations of Agencies
Section 47E(c) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse effect on the management
or assessment of personnel by an agency.
The Department operates in a position of trust within the border environment and as such the
highest standard of conduct must be encouraged and maintained.
The Department's Professional Standards Framework promotes the highest of standards of
professional conduct expected of the Department's workforce. Contained within the professional
standards framework, is the integrity framework which includes measures designed to protect
our workforce from criminal influence and to mitigate the potential for corruption risk. Any
adverse effect to the effectiveness of the Department's ability to manage its personnel within its
integrity framework exposes the Department to potential integrity risk which would result in a
substantial adverse effect on the operations of the Department.
I consider that the information marked ‘
s. 47E(c)’ in Attachment A within the documents contains
opinion and deliberations prepared or recorded in the course of, or for the purposes of, the
deliberative processes involved in the functions of Department, being the assessment and
management of personnel by managers and the Department’s Human Resources staff.
The information consists of advice provided by a specialist business area within the People
Division in response to queries from managers within a business area required to manage staff.
I am of the view that a precedent of disclosure of advice given by a staff member whose role it is
to support managers through personnel management issues would result in a reticence in the
future of both managers seeking such guidance and assistance, and in the officers tasked with
providing relevant support to those managers. Any disclosure of this type of information would
result in a loss of trust in the staff both providing the advice and seeking the advice. Such a
reticence in seeking and providing advice with candour could restrict the ability of managers of
staff to obtain advice essential to the support of them in their role of managing staff. This would
result in a substantial adverse effect on the Department’s ability to manage the personnel of the
Department.
At times, the policy space that this Department operates in can be highly controversial and
divisive and in some circles, an unpopular aspect of government policy. The Department also
operates in a highly sensitive operational environment. As such, affording protection to its staff
is a high priority for the Department.
Staff names and direct contact details are not published outside the Department in order to
protect staff against the risk of inappropriate unsolicited approaches, personal attack and
harassment.
The Department has a primary duty of care to ensure, so far as is reasonably practicable, the
health and safety of its officers under the
Work Health and Safety Act 2011 (WHS Act). The
Department must ensure, as far as is reasonably practicable, that the health and safety of other
persons is also not put at risk from work carried out as part of the conduct of the Department.
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I am of the view that the disclosure of the names of officers contained within the documents could
impact on the ability of the Department to comply with its health and safety obligations under the
WHS Act. This would, or could reasonably be expected to, have a substantial adverse effect on
the management of personnel by the Department.
I have decided therefore that the documents are conditionally exempt under section 47E(c) of
the FOI Act. Access to a conditionally exempt document must generally be given unless it would
be contrary to the public interest to do so. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in that
regard below.
6.3 Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not (see section 4 of the FOI
Act and section 6 of the
Privacy Act 1988).
I consider that disclosure the documents would disclose personal information relating to third
parties. The information within the documents would reasonably identify a person, either through
names, positions or descriptions of their role or employment circumstance.
The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the following four factors set out in section 47F(2) of the
FOI Act:
•
the extent to which the information is well known;
•
whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
•
the availability of the information from publicly available resources;
•
any other matters that I consider relevant.
I have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individual(s) concerned is/are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
The officers involved in this correspondence have marked the documents as “Sensitive:Personal”
which indicates that they regarded their exchange as sensitive in nature and that there was an
intention to limit the distribution of this correspondence.
I am satisfied that the disclosure of the information within the documents would involve an
unreasonable disclosure of personal information about a number of individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless it
would be contrary to the public interest to do so. I have turned my mind to whether disclosure of
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the information would be contrary to the public interest, and have included my reasoning in that
regard below.
6.4 The public interest – section 11A of the FOI Act
As I have decided that the documents are conditionally exempt, I am now required to consider
whether access to the conditionally exempt information would be contrary to the public interest
(section 11A of the FOI Act).
A document which is conditionally exempt must also meet the public interest test in section
11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt document would be, on
balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and
3A)
(b)
inform debate on a matter of public importance
(c)
promote effective oversight of public expenditure
(d)
allow a person to access his or her own personal information.
Having regard to the above I am satisfied that:
•
Access to the documents would promote the objects of the FOI Act.
•
The subject matter of the documents may have a general characteristic of public
importance.
•
No insights into public expenditure will be provided through examination of the
documents.
•
You do not require access to the documents in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the documents:
•
Disclosure of the conditionally exempt information under section 47E(c) could
reasonably be expected to prejudice the personnel management functions of the
Department and, as such, would have a substantial adverse effect on the operations
of the Department.
•
There is a real public interest in ensuring that staff with a responsibility for managing
personnel come forward with concerns and seek advice regarding those matters from
other staff within the Department who are trained and qualified to provide such
support and advice.
•
I consider that a precedent of disclosure of this process would create an environment
where managers would be reluctant to seek such advice and support in the future. I
am of the view that it would be contrary to the public interest to create circumstances
where appropriate advice and support was not sought by managers and/or provided
by staff with responsibility for human resource management. This process is vital to
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enabling the effective management of personnel within the Department. I believe it is
in the public interest for managers to be able to access this advice and support in
order provide effective supervision and management of the staff for which they are
responsible. I consider that this would be contrary to the public interest and that this
factor weighs strongly against disclosure.
•
Disclosure of the conditionally exempt information under section 47E(c) could
reasonably be expected to prejudice the ability of the Department to manage future
workplace enquiries and integrity investigations. I consider that the disclosure of this
information may hinder the future cooperation or participation in those processes,
and that there is a real public interest in this Department being able to undertake
effective reviews, investigations and inquiries of this nature in the future. I consider
that this would be contrary to the public interest and that this factor weighs strongly
against disclosure.
•
Disclosure of personal information which is conditionally exempt under section 47F
of the FOI Act could reasonably be expected to prejudice the protection of third
parties’ right to privacy. It is firmly in the public interest that the Department uphold
the rights of individuals to their own privacy, and this factor weighs strongly against
disclosure.
•
While you may be aware of the personal information relating to some of these third
parties, their information is not well known to the public generally. These documents
are not available from publicly accessible sources. I have had regard to the fact that
disclosure of information under the FOI Act must be considered to be a disclosure to
the world at large and not just to you as the applicant.
•
I am satisfied that if the Department were to release personal information without that
person’s express consent to do so, it would seriously undermine public confidence in
the Department’s ability to receive, retain and manage personal information. I
consider such a loss of confidence to be against the public interest, and this factor
weighs strongly against disclosure.
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
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8
Your review rights
If you disagree with this decision, you have the right to apply for either an internal review or an
Information Commissioner review of the decision.
Internal review
If you want the Department to review this decision, you must make your internal review request
within 30 days of being notified of this decision.
When making your internal review request, please provide the Department with the reasons why
you consider this decision should be changed.
You can send your internal review request to:
Email: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
Or
Postal mail:
Freedom of Information
Department of Home Affairs
GPO Box 241 MELBOURNE VIC 3001
The internal review will be carried out by an officer who is more senior than the original decision
maker. The Department must make its decision on the review within 30 days of receiving your
request for internal review.
Information Commissioner review
If you want the Australian Information Commissioner to review this decision, you must make your
request to the Office of the Australian Information Commissioner (OAIC) within 60 days of being
notified of this decision.
You can apply for an Information Commissioner review using the Information Commissioner
review application form on the OAIC website.
You can find more information about Information Commissioner reviews on the OAIC website.
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Making a complaint
You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a separate
process to the process of requesting a review of the decision as indicated above.
You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
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10
Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely,
Electronically signed
Amanda Johnston
Position number 60022105
Authorised Decision Maker
Department of Home Affairs
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