funding by arrangements for the band 1 general manager regulatory action
division since 1 January 2025. For example, but not limited to,
correspondence with AGD and department of finance and nous group.
I request all copies of all documents, emails, teams messages and
correspondence that directly or indirectly references any recruitment,
whether abondoned or otherwise regarding the general manager position. In
particular documents that detail the decision not to run an EOI or other merit
based process.
I request all copies of all documents, emails, teams messages and
correspondence between members of the executive and HR that directly or
indirectly reference the placement of the candidate currently occupying the
position. Including all mentions post announcement to the organisation.
On 17 June 2025, we wrote to you seeking your agreement to an 18-day extension of
the legislated timeframe for processing your request, in accordance with section
15AA of the FOI Act.
On 20 June 2025, we followed up this request. We did not receive a response from
you.
On 25 June 2025, we asked you to advise by 25 July 2025 whether you would agree
to remove from the scope of your request all non-executive staff member and third
party names, to enable faster processing of your request.
On 4 July 2025, we notified you that the OAIC is required to consult with affected
third parties under section 27A of the FOI Act. We advised you that the legislated
time period for processing a request is extended by 30 days to allow time for
consultation, making the new due date 4 August 2025.
On 28 July, you replied to the notice of third party consultation of 4 July 2025
advising agreement to the extension and redactions. I have interpreted your
response as referring to the 30-day extension of time for the consultation and any
redactions that may be made to material following that consultation.
On 30 July 2025, we wrote to you seeking withdrawal of your request as the
documents falling within scope of your request would be published on the OAIC
disclosure log later in the week.
We did not receive a response from you.
The documents were published on the OAIC disclosure log on 1 August 2025.
2
Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests on behalf of the OAIC.
I have identified 29 documents as falling within the scope of your request and have
made a decision to:
• grant access in full to 4 documents; and
• grant access in part to 25 documents with exemptions applied under
sections 47E(d) [certain operations of agency] and 47F [personal privacy]
Searches undertaken
The FOI Act requires that all reasonable steps be taken to locate documents within
scope of an FOI request.
The following line areas of the OAIC conducted searches for documents relevant to
you request:
• Executive
• Regulatory Action
• People & Culture
• Finance
Searches were conducted across the OAIC’s various document storage systems
including:
• OAIC’s email system
• Microsoft Teams
• Phones
The following search terms were used when undertaking electronic records
searches:
• Creation
• EGM Reg Action
• SES1
• Role description edits
• Regulatory Action Division
Searches were also undertaken for relevant personnel names.
3
Having consulted with the relevant line areas and undertaken a review of the
records of the various search and retrieval efforts, I am satisfied that reasonable
searches have been undertaken in response to your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 5 June 2025
• consultation with the relevant line areas of the OAIC
• consultation with a third party in relation to their personal information
• the FOI Act
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act to which regard must be had in performing a
function or exercising a power under the FOI Act (FOI Guidelines)
Access to edited copies with irrelevant and exempt matter
deleted (section 22)
Section 22 of the FOI Act permits an agency to prepare and provide an edited copy
of a document where the agency has decided to refuse access to an exempt
document, or where to give access to a document would disclose information that
would reasonably be regarded as irrelevant to the request.
I have determined that FOI Act exemptions apply to material falling within scope of
your request.
I have also determined that there is irrelevant material (material that does not fall
within the scope of your request) in the documents under consideration for release.
The exempt and irrelevant material has been removed in accordance with section
22 of the FOI Act.
The reasons for my decision are set out below.
Section 47E(d) – Public interest conditional exemption
Section 47E(d) provides that:
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
4
…(d) have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
I have made a decision to redact material in accordance with section 47E(d) of the
FOI Act on the basis that disclosure would or could reasonably be expected to have
a substantial adverse effect on the proper and efficient conduct of the OAIC’s
operations.
The material that I have decided is subject to conditional exemption comprises staff
internal email addresses and internal telephone numbers, as are contained within
the documents falling within scope of your request.
In order to determine whether disclosure would, or could reasonably be expected
to, have a substantial adverse effect on the proper and efficient conduct of the
operations of the OAIC, I have taken into consideration the size, functions and
activities of the OAIC.
The OAIC is an independent statutory agency comprising the Australian Information
Commissioner, the Privacy Commissioner, the FOI Commissioner and a relatively
small number of staff.
Many of the individuals who contact the OAIC do so in the context of making
complaint about, or seeking review of, other agencies’ actions and decisions. A
number of correspondents contact the OAIC in the belief that we can resolve issues
in ways that lie outside the scope of the work of the regulator. In some cases, these
individuals are prolific in their correspondences. They send multiple emails to, or
copy, many other agencies and parties.
In a larger agency, disclosure of internal contact details may not produce the effect
of a substantial impact on agency operations. However, in a smaller agency such as
the OAIC, dissemination of internal contact details into the public domain, and
especially through the Right-to-Know website, as is relevant in this case, could
reasonably be expected to attract a greater volume of correspondence through
inappropriate channels of contact and potentially present resource challenges.
Further, disclosure of direct email and telephone details of more senior executive
officers would be likely to attract contact from individuals who wish to escalate
their concerns directly to those officers, where they may not be happy with the
outcome of their prior correspondences.
The potential nature and tone of those correspondences, if sent to other officers in
the agency, could cause distress to those officers and would undermine the
agency’s ability to comply with its health and safety obligations under the
Work
Health and Safety Act 2011 (WHS Act).
5
Most Agencies have established structures and conventions for contacting public
servants, reflecting the level of responsibility, transparency and accountability of
public servants both legally and practically. Agencies ought to be able to maintain
these established communication methods for contact with the public and it would
be unreasonable to disclose contact details of public servants if that would result in
members of the public subverting those established processes.
For the reasons given above, I consider the relevant material identified in the
schedule to be conditionally exempt under section 47E(d) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemptions in these documents, is discussed in the public interest
considerations on page 10 below.
Section 47F - Public interest conditional exemptions-personal
privacy
Some of the documents falling within scope of your request contain personal
information about staff. This information constitutes:
• Names
• Photographic images
• Mobile phone numbers
• Opinions and comments about them
• Leave arrangements
• Other matters which are personal in their nature and sit outside of the
course of their usual duties and execution of their work.
A document is conditionally exempt under section 47F(1) of the FOI Act where
disclosure would involve the unreasonable disclosure of personal information of
any person, including a deceased person. This exemption is intended to protect the
personal privacy of individuals.
Personal information
Section 4 of the FOI Act provides that the definition of personal information in the
Privacy Act 1988 (Cth) also applies to the FOI Act. The term personal information is
defined in section 6(1) of the Privacy Act to be:
… information or an opinion about an identified individual, or an individual
who is reasonably identifiable:
6
(a) whether the information or opinion is true or not;
(b) whether the information or opinion is recorded in a material form or not.
Paragraph 6.125 of the FOI Guidelines provides that:
‘Personal information can include a person’s name, address, telephone
number,[111] date of birth, medical records, bank account details, taxation
information[112] and signature.[113]’
I am satisfied that the material I identified above as personal information in the
documents meets the definition of personal information because the material
relates closely to the personal matters of individuals.
Whether disclosure would be unreasonable
The FOI Guidelines explain at paragraph 6.133 that the test of ‘unreasonableness’ in
section 47F ‘implies a need to balance the public interest in disclosure of
government-held information and the private interest in the privacy of individuals’.
In determining whether the disclosure of names would involve an unreasonable
disclosure of personal information, the FOI Guidelines provide the following
considerations at paragraph 6.135:
•
the extent to which the information is well known
• whether the person to whom the information relates is known to be
associated with the matters in the document
• the availability of the information from publicly accessible sources
• any other matters the agency or Minister considers relevant.
The FOI Guidelines further describe the key factors for determining whether
disclosure is unreasonable at paragraph 6.137:
a. the author of the document is identifiable
b. the documents contain third party personal information
c. release of the documents would cause stress on the third party
d. no public purpose would be achieved through release.
Consistent with
FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines at paragraph 6.138 explain that other relevant 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 collection and use of the information
7
•
the fact that the FOI Act does not control or restrict any subsequent use
or dissemination of information released under the FOI Act
•
any submission an FOI applicant chooses to make in support of their
application 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
Staff personal information not relevant to the person’s conduct of their usual
duties and role responsibilities
There is personal information of staff captured in the documents that is not
information concerning the person’s usual duties or conduct in their role or
responsibilities as a public servant. I am satisfied that the release of the personal
information of staff would be unreasonable for the following reasons:
• The information relates to the person’s personal affairs, which the Australian
community would regard as sensitive;
• The information is not widely known or available from publicly accessible
sources
• Disclosure would have an adverse effect on the person concerned
• Disclosure would damage the person’s trust and confidence in their
employer to maintain confidentiality over their personal information
• Disclosure would undermine the morale of the person concerned and,
potentially, the workforce as a whole, by not protecting their privacy rights.
With regard to personal privacy, the FOI Guidelines at paragraph 6.168 state:
An agency or minister must have regard to any submissions made by the
third party before deciding whether to give access to the document (ss 27A(3)
and 27A(4)). However, the third party does not have the right to veto access
and agencies and ministers should take care to ensure the third party is not
under such a misapprehension. …
On 10 July 2025, I consulted with a third party in accordance with section 27A of the
FOI Act, seeking their view on release of their personal information as captured
within some of the documents falling within scope of your request.
The party objected to release of their personal information and, in making my
decision, I have accorded significant weight to that objection when balancing the
factors in favour of disclosure against the factors in favour of disclosure, as
discussed below.
8
I have decided that release into the public domain of this information would be an
unreasonable disclosure of their personal information.
Staff names and other personal information captured as relevant to the
conduct of their usual duties and role responsibilities
As described above, documents falling within scope of this request contain the
personal information of staff that constitutes their names, their images, mobile
phone numbers and opinions and comments about them, as captured in the
documents in the course of their usual duties and execution of work as public
servants.
Regarding staff names, I have decided to disclose the full names of SES staff but
redact the names of staff under SES level, with the exception of first names of staff
in email addresses where it is otherwise not possible to identify recipients of those
emails, for the following reasons.
It is widely understood in the APS that SES employees are subject to higher degrees
of transparency and accountability than APS employees generally. For example,
SES employees’ details are usually published in agency structure charts on agency
websites and in the Australian Government directory at www.directory.gov.au,
while non-SES APS employees’ details are not generally published in this manner.
The approach to distinguish personal information of APS employees at the SES
classification is also consistent with paragraphs 47F(2)(a) and (c) of the FOI Act
which emphasise the extent to which information is well known or available from
publicly accessible sources.
For the reasons provided above, I have decided that senior public servants at the
SES classification are to be distinguished from non-SES employees.
Further, consistent with the decision in
Cox; Secretary, Department of Agriculture,
Water and the Environment (Freedom of Information) [2023] AATA 375 (9 March
2023), at paragraphs 113-115, Deputy-President Britten-Jones relevantly wrote:
…In determining whether disclosure is unreasonable, I must take into
account all the circumstances, including that the substance of these
documents have been disclosed and the names of SES staff have been
disclosed. It is difficult to see what more could be added by disclosing the
names of non-SES staff….
In
Warren; Chief Executive Officer, Services Australia and (Freedom of Information)
[2020] AATA 4557 (Warren), Deputy-President Forgie said:
9
It is important to understand the exemptions in the context of the FOI Act as
enacted. It’s objects as set out in ss 3 and 3A, make no reference to
accountability. …. The FOI Act’s objectives do not establish a separate
merits review process of the activities of individuals engaged in the
Government’s processes or activities. … There may be cases in which
disclosure of individual’s names may increase scrutiny, discussion or
comment of Government processes or activities. In others, the names of
those responsible for those processes or activities may be neither here nor
there in their scrutiny. …
Consistent with the decision in Warren, in the circumstances where the names of
staff with responsibility for government decision-making have been disclosed, I do
not consider that access to the names of other staff would advance scrutiny.
With regard to names and the balance of staff personal information described
above, that is, images, mobile phone numbers, opinions and comments about them
and their leave arrangements, I consider that release through the FOI process into
the public domain is a relevant consideration, particularly due to developments in
information technology.
Personal information that is made publicly available can be
misused, for example, for unwanted contact or to make defamatory statements and
express opinions on staff and, once published in the electronic domain, this
material can constitute an indelible record.
Relevantly, release of information through the Right-to-Know (RtK) website, as is the
case in this matter, is a broader release than a release made to a single applicant.
Notwithstanding that there are no limitations placed on a single applicant with
regard to use of information disclosed through FOI process, it would require an
intent and effort on the part of a single applicant to disseminate the information as
widely as it is disseminated through RtK. Information published on the RtK website
is automatically published into a broader public domain with a wider audience.
In addition, it is reasonable to deduce that, once disclosed, an individual’s identity
may be easily connected with a vast range of other personal information available
online.
The effect on non-SES staff of disclosure of their personal information into the
public domain where there is no substantive reason to do so, would be reasonably
likely to cause distress to them and impact on the ability of the Department to
comply with its health and safety obligations under the
Work Health and Safety Act
2011 (WHS Act).
For the reasons given above, I consider that disclosure of the relevant material, as
identified in the schedule, would be an unreasonable disclosure in that it would
unreasonably impact on the privacy of the individuals.
10
I therefore consider this material to be conditionally exempt under section 47F of
the FOI Act.
As section 47F is a conditional exemption, I am required to apply consideration of a
public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemptions in these documents, is discussed below.
Sections 47E(d) and 47F – Public interest considerations
As sections 47E(d) and 47F are conditional exemptions, I am required to consider
the application of a public interest test.
Section 11A(5) provides that where a document is considered to be conditionally
exempt, an agency must
give the person access to that document unless the FOI
decision maker would, on balance, would be contrary to the public interest.
This means that I must balance factors for and against disclosure in light of the
public interest.
Paragraph 6.224 of the FOI Guidelines provides that:
The public interest is considered to be:
•
something that is of serious concern or benefit to the public, not
merely of individual interest[181]
•
not something of interest to the public, but in the interest of the
public[182]
•
not a static concept, where it lies in a particular matter will often
depend on a balancing of interests[183]
•
necessarily broad and non-specific[184] and
•
related to matters of common concern or relevance to all members of
the public, or a substantial section of the public.[185]
Factors favouring access
Paragraph 6.229 of the FOI Guidelines sets out 4 factors favouring access that must
be considered if relevant. They are that disclosure would:
a. promote the objects of the FOI Act
b. inform debate on a matter of public importance[185]
c. promote effective oversight of public expenditure[186]
d. allow a person to access his or her personal information (s
11B(3)).
11
Of these factors, with regard to the personal information and direct internal contact
details, I consider the following to be relevant:
a. promote the objects of the FOI Act
Whether disclosure would be contrary to the public interest
Paragraph 6.233 of the FOI Guidelines sets out public interest factors against
access as follows:
6.233 A non-exhaustive list of factors against disclosure is provided below…
a. could reasonably be expected to prejudice the protection of an individual’s
right to privacy,[192] including where:
…….
Section 11B(4) of the FOI Act provides factors which are not to be taken into
account, to which I have had regard.
In considering the documents subject to this request, I consider that the following
factors do not favour disclosure, where disclosure of the relevant material could
reasonably be expected to:
• prejudice the privacy interests of individuals whose personal information
appears in the documents;
• prejudice the ability of the Department to comply with its health and safety
obligations under the
Work Health and Safety Act 2011 (WHS Act); and
• disclosure would have an adverse effect on the OAIC’s proper and efficient
operations.
I have had regard to the recent decision in
Jonathan Sequeira and Australian
Broadcasting Corporation (No. 3) (Freedom of information) [2023] AICmr 30 which
stated that:
Access must be provided unless the degree of that harm is such that it
outweighs the public interests in disclosure that underpin the FOI Act and
apply in the particular case. The test is not whether disclosure would be
positively in the public interest. Rather it is whether, on balance, disclosure
would be contrary to the public interest, that is, that some harm or damage to
the public interest which outweighs the benefit to the public in disclosure
would ensue.
12
In balancing these factors for and against access, I have given significant weight to
the importance of promotion of the objects of the FOI Act and allowing a person to
access information that would enhance the scrutiny of government decision making
and inform debate on a matter of public importance.
However, I have balanced this with the need to protect the personal information of
individuals, including APS staff, who would not expect their personal information to
be made publicly available. I consider that in relation to the material I have found to
be exempt, for reasons detailed above, disclosure of this material would not
significantly contribute to enhancing the scrutiny of government decision making or
inform debate.
In relation to the exempt material, I consider that the need to protect the personal
privacy of individuals outweighs the factors for disclosure.
I have also given significant weight to the need to ensure that the OAIC’s ability to
perform its functions is unhindered by excessive contact through inappropriate
channels of communication.
On balance, I consider the public interest factors against disclosure to be more
persuasive than the public interest factors favouring disclosure. I am satisfied that
the public interest is to withhold the exempt material.
The documents for release are attached.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online document released
to members of the public within 10 days of release, except where they contain
personal or business information that would be unreasonable to publish.
Please see the following page for information about your review rights.
Yours sincerely
Marguerite Wilson-Foreman
Assistant Director, FOI & Privacy
4 August 2025
13
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Review Tribunal (ART).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request for
IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests
of the administration of the FOI Act to conduct an IC review of a decision, or an
internal review decision, made by the agency that the Information Commissioner
heads: the OAIC. For this reason, if you make an application for IC review of my
decision, and the Information Commissioner is satisfied that in the interests of
administration of the Act it is desirable that my decision be considered by the ART,
the Information Commissioner may decide not to undertake an IC review.
14
Section 57A of the FOI Act provides that, before you can apply to the ART for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=IC
R_10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
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