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6 February 2017
Beth Tender
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Tender,
Freedom of Information Decision: Ref 16/17-22
I refer to your email received by the Fair Work Commission (
the Commission) on 6 January
2017, in which you seek access to the following documents under the
Freedom of
Information Act 1982 (
FOI Act):
1. A list of Commission Members, staff and/or officers who have an entitlement to use ComCar
services;
2. A copy of any guidelines, rules, policies or procedures regarding ComCar use that the Commission
provides to persons within FWC who may be entitled to use ComCar, and/or are provided by other
entities to persons within FWC;
3 A document containing the total number of instances in which ComCar bookings/reservations made
for or by FWC members, staff or officers were cancelled in 2016 (in other words, how many times
were ComCars booked and then cancelled);
4. A document containing the total number of instances in which ComCar bookings/reservations made
for FWC members, staff or officers in 2016 (in other words, the total number of times ComCars were
used by FWC in 2016);
5. A document containing the total number of instances in which Commission Members, staff and/or
officers were required to repay any costs associated with ComCar bookings/reservations made for or
by FWC members, staff or officers in circumstances where the ComCar usage was deemed to not be
within entitlement (in other words, how many times were persons within FWC asked to repay cost of
ComCar usage because they had been used in circumstances where there was no entitlement to do
so);
6. Records or documents pertaining to Comcar use (including bookings made, trips that took place,
and any related information) by FWC Members, staff and/or officers for the days 22nd May 2016, 16th
June 2016 and 19th July 2016 for journeys that took place in the States of New South Wales and
Victoria?
The 30 day statutory time period for processing your request commenced on the day after
the day your request was received (subsection 15(5) of the FOI Act). The due date to issue a
decision on your request is therefore 5 February 2017. As 5 February 2017 is a Sunday, the
due date is extended to
6 February 2017, being the next day that is not a Saturday, Sunday
or a holiday.
1
1
Acts Interpretation Act 1901 (Cth) s 36(2)
1
Decision
A search of the Commission’s records was conducted and 15 documents comprising 67
pages were identified as falling within the scope of your request.
My decision is to grant access in part to the documents that fall within the scope of your
request. The reasons for my decision are set out in
Attachment A.
The Schedule of Documents which lists the documents that fall within the scope of your
request is at
Attachment B. Read together, Attachments A and B set out my decision on
access and where appropriate, refer to relevant sections of the FOI Act.
The documents to which I am granting access are also attached.
Review rights
Internal review
If you disagree with my decision, you have the right to apply for an internal review by the
Commission of my decision. Any request for internal review must be made to the
Commission within 30 days of being notified of my decision. The internal review will be
conducted by an officer other than the original decision-maker and the Commission must
make a review decision within 30 days.
Applications for internal review should be sent to:
Bernadette O’Neill
General Manager
Fair Work Commission
GPO Box 1994
Melbourne VIC 3001
Email:
xxxxxxxxxxxxxx@xxx.xxx.xx
Review by the Office of the Australian Information Commissioner
Under s 54L of the FOI Act, you may apply to the Information Commissioner for review of my
decision. An application for review by the Information Commissioner must be made in writing
within 60 days of this notice, and be lodged in one of the following ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/ email:
xxxxxxxxx@xxxx.xxx.xx
More information about Information Commissioner review is available on the Office of the
Australian Information Commissioner website. Go to
www.oaic.gov.au/freedom-of-
information/foi-reviews.
How to make a complaint about the handling of this FOI request
You may complain to the OAIC about action taken by the Commission in relation to your FOI
request.
Your enquiries to the OAIC can be directed to:
Phone 1300 363 992 (local call charge)
Ema
il xxxxxxxxx@xxxx.xxx.xx
Information about how to make a complaint to the OAIC can be found at:
https://www.oaic.gov.au/freedom-of-information/foi-complaints.
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Contacting the FOI Section
If you wish to discuss this matter, I can be contacted by phone or email as below.
Yours sincerely
Haydar Tuncer
Freedom of Information Officer
Reporting, Planning and Legal
Fair Work Commission
Telephone: (03) 8656 4856
Email:
xxx@xxx.xxx.xx
Attachments
• Attachment A – Decision Record
• Attachment B – Schedule of Documents
• Documents released to you under the FOI Act.
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Attachment A – Decision Record
Commission records within scope
Category 1
1. List of persons within the Commission who have access to a ComCar account,
comprising 2 pages.
Category 2
2. Official Travel Policy (Associate Handbook), comprising 11 pages.
3. Domestic Travel Policy (draft), comprising 12 pages.
4. Member Code of Conduct, comprising 12 pages.
5. Remuneration Tribunal Determination 2016/07, comprising 10 pages.
Category 4
6. Document containing the total number of instances in which ComCar services were
used by the Commission in the 2016 calendar year, comprising 1 page.
Category 6
7. Tax Invoice for Commissioner Tim Lee, comprising 2 pages.
8. Tax Invoice for Senior Deputy President Ian Watson, comprising 2 pages.
9. Tax Invoice for Commissioner Leigh Johns, comprising 2 pages.
10. Tax Invoice for Senior Deputy President Matthew O’Callaghan, comprising 3 pages.
11. Tax Invoice for Commissioner Leigh Johns, comprising 2 pages.
12. Tax Invoice for Senior Deputy President Jonathan Hamberger, comprising 2 pages.
13. Tax Invoice for Deputy President Geoff Bull, comprising 2 pages.
14. Tax Invoice for Senior Deputy President Lea Drake, comprising 2 pages.
15. Tax Invoice for Deputy President Val Gostencnik, comprising 2 pages.
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.
Information considered
In reaching my decision, I have considered the following:
• the
Freedom of Information Act 1982 (
FOI Act);
• the Australian Information Commissioner’s FOI Guidelines issued under s 93A of the
FOI Act (
FOI Guidelines);
• the terms of your request;
• relevant case law; and
• the Commission documents within scope (identified above).
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Reasons for decision
Category 1 - A list of Commission Members, staff and/or officers who have an
entitlement to use ComCar services
Section 17 of the FOI Act - Requests involving use of computers etc.
(1)
Where:
…
(c) the agency could produce a written document containing the information in
discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information;
the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this
Act applies as if the agency had such a document in its possession.
I have consulted with the Commission’s Finance & Resources area and the General
Manager in relation to your request for a “list of Commission Members, staff and/or officers
who have an entitlement to use ComCar services”. I am informed that Commission Members
and the General Manager have access to a ComCar account.
For the purposes of s 17, I consider that it is possible to produce a document within the
scope of your request, by collating a list of “Commission Members, staff and/or officers” with
access to a ComCar account (Document 1).
Category 2 - A copy of any guidelines, rules, policies or procedures regarding
ComCar use that the Commission provides to persons within FWC who may be
entitled to use ComCar, and/or are provided by other entities to persons within FWC
Four documents have been identified as relevant to your request (Documents 2 – 5).
Section 47E(d) of the FOI Act
Section 47E(d) of the FOI Act relevantly provides:
A document is conditionally exempt if its disclosure under this Act would, or could be
reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
The FOI Guidelines relevantly explain:
There must, based on reasonable grounds, be at least a real, significant or material
possibility of prejudice.2 The term ‘substantial adverse effect’ broadly means ‘an
adverse effect which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person’. The word ‘substantial’, taken in the context of substantial
2 FOI Guidelines at [5.18].
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loss or damage, has been interpreted as ‘loss or damage that is, in the circumstances,
real or of substance and not insubstantial or nominal.’3
The FOI Act does not limit or restrain the use of released documents.
4 The Information
Commissioner has noted that developments in information technology make it considerably
easier for information disclosed under the FOI Act to be disseminated widely.
5
I have found that the Official Travel Policy and the Domestic Travel Policy (draft) contain
contact information of internal booking agents that is not publicly available.
Release of this information poses a risk to the Commission in that the information could be
used in an attempt to create fraudulent travel authorisations. This would constitute a
substantial adverse effect on the proper and efficient conduct of the operations of the
Commission.
These issues have the potential to cause disruption to the Commission’s operations or
undermine the Commission’s ability to carry out its functions in a timely and efficient manner.
Accordingly, I consider that there is “a real, significant or material possibility of a substantial
adverse effect” on the proper and efficient conduct of the Commission’s operations if access
is granted to this material.
For these reasons, I have decided that the Official Travel Policy and Domestic Travel Policy
(draft) are conditionally exempt in part under s 47E(d) of the FOI Act.
Public Interest Test
Having decided that the Official Travel Policy and the Domestic Travel Policy (draft) are
conditionally exempt in part under s 47E(d), I am required to consider whether disclosure of
the conditionally exempt material would be contrary to the public interest test outlined in
s 11A(5) of the FOI Act. Subsection 11B(3) of the FOI Act lists factors that favour access
when applying the public interest test. The Guidelines include a non-exhaustive list of further
factors that favour disclosure.
6 The only public interest factor favouring disclosure in this
case is that disclosure would promote the objects of the FOI Act by facilitating and promoting
public access to information. The Guidelines also include a non-exhaustive list of factors
against disclosure.
7 In this case, I am satisfied that disclosure could reasonably be expected
to prejudice the security of the Commission. I consider that the public interest is weighted
more heavily against disclosure and therefore giving access to the conditionally exempt
material would, on balance, be contrary to the public interest.
Section 47F of the FOI Act
Section 47F of the FOI Act relevantly provides:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).
3 ibid at [5.20].
4 FOI Guidelines at [3.38]. See also
‘FG’ and National Archives of Australia [2015] AICmr 26.
5
‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [81].
6 ibid at [6.19].
7 ibid at [6.22].
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(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
The term, “personal information”, is defined in s 4 of the FOI Act to have the same meaning
as in the
Privacy Act 1988 (Cth) (Privacy Act). Section 6 of the Privacy Act
defines personal
information as:
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 a material form or not.
I also consider that the final page of the Domestic Travel Policy (draft) includes the mobile
phone number of the Director, Corporate Services Branch. Previous decisions of the
Information Commissioner have found that it would generally be unreasonable to disclose
mobile phone numbers of public servants.
8 While the Director’s landline work phone number
is publicly available, her mobile phone number is not. I therefore consider that disclosure of
her mobile phone number would be unreasonable.
Public Interest Test
Having decided that the Domestic Travel Policy (draft) is conditionally exempt in part under
s 47F, I am required to consider whether disclosure of the conditionally exempt material
would be contrary to the public interest test outlined in s 11A(5) of the FOI Act. The only
factor in favour of access is that disclosure would promote the objects of the FOI Act by
facilitating and promoting public access to information. Factors against disclosure that are
relevant are that the disclosure:
• could reasonably be expected to prejudice the protection of an individual’s right to
privacy; and
• could reasonably be expected to harm the interests of an individual or group of
individuals.
I consider that the public interest is weighted more heavily against disclosure and therefore
giving access to the conditionally exempt material would, on balance, be contrary to the
public interest.
For these reasons, I have decided to release Documents 2 and 3 in part, and Documents 4
and 5 in full.
8 See
Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015]
AICmr 85 at [27]
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Category 3 - A document containing the total number of instances in which ComCar
bookings/reservations made for or by FWC members, staff or officers were cancelled
in 2016 (in other words, how many times were ComCars booked and then cancelled)
Section 24A of the FOI Act
Section 24A of the FOI Act relevantly provides:
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
I have consulted with the Commission’s Finance & Resources area in relation to this
request, and am informed that the invoices delivered to the Commission by ComCar do not
record whether a booking was cancelled. I have also conducted a search of the
Commission’s electronic records and was unable to find any documents falling within the scope
of your request.
I am therefore satisfied that the requested document does not exist.
Category 4 - A document containing the total number of instances in which ComCar
bookings/reservations made for FWC members, staff or officers in 2016 (in other
words, the total number of times ComCars were used by FWC in 2016)
For the purposes of s 17 of the FOI Act, a document has been produced from information in
each tax invoice issued by ComCar relating to a ComCar trip in 2016, recording the total
number of instances in which ComCar was used by the Commission (by Commission
Members) in 2016 (Document 6).
Category 5 - A document containing the total number of instances in which
Commission Members, staff and/or officers were required to repay any costs
associated with ComCar bookings/reservations made for or by FWC members, staff or
officers in circumstances where the ComCar usage was deemed to not be within
entitlement (in other words, how many times were persons within FWC asked to repay
cost of ComCar usage because they had been used in circumstances where there was
no entitlement to do so)
I have interpreted the scope of this request as extending to any instance where a person
was asked to repay the cost of ComCar usage since the Commission commenced on 1
January 2013.
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I have consulted with the Commission’s Finance & Resources area in relation to this
request, and am informed that there are no records of instances “in which Commission
Members, staff and/or officers were required to repay any costs associated with ComCar
bookings/reservations …” since 1 January 2013.
I have also conducted a search of the Commission’s electronic records and was unable to find
any documents falling within the scope of your request.
9
Fair Work Act 2009 (Cth) s 575
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I am therefore satisfied that the requested document does not exist.
Category 6 - Records or documents pertaining to Comcar use (including bookings
made, trips that took place, and any related information) by FWC Members, staff
and/or officers for the days 22nd May 2016, 16th June 2016 and 19th July 2016 for
journeys that took place in the States of New South Wales and Victoria
Your request for documents in category 6 is broadly expressed. I have interpreted the scope
of this request as relating to the Commission’s official ComCar records (the ComCar tax
invoices) for trips undertaken on those dates in New South Wales or Victoria. The ComCar
tax invoices record the booking and trip details, as follows: State of travel, date of travel,
reservation number, passenger reference/client name, booking time, pick-up and drop off
suburbs, car plate number, service description and cost of each trip. I have not conducted a
broader search for any incidental information in relation to these trips as part of this request.
In relation to your request for documents pertaining to ComCar use on 22 May 2016, I have
examined every 2016 ComCar invoice and have been unable to find any record of a trip
taking place on 22 May 2016. I am therefore satisfied that the requested document does not
exist, pursuant to s 24A of the FOI Act.
In relation to your request for documents pertaining to ComCar use on 16 June 2016 and 19
July 2016 for journeys that took place in New South Wales and Victoria, nine (9) documents
have been identified within the scope of your request (Documents 7 – 15).
I have found that each tax invoice contains the ComCar account number assigned to the
relevant Commission Member. Release of this information poses a risk to the Commission
as it could be used by unauthorised persons to attempt to make ComCar bookings. This
would constitute a substantial adverse effect on the proper and efficient conduct of the
operations of the Commission. In reaching this view I have consulted with the Commission’s
Finance & Resources area.
I therefore consider documents 7-15 to be conditionally exempt in part under s 47E(d) of the
FOI Act.
I have also found that the four tax invoices for Commissioner Lee, Senior Deputy President
Hamberger, Deputy President Bull and Senior Deputy President Drake (Documents 7, 12, 13
and 14) contain information identifying their residential suburb; that is, “personal information”
for the purposes of s 47F of the FOI Act.
In relation to unreasonable disclosure, the FOI Guidelines relevantly explain:
There needs to be careful consideration of the [s 47F] exemption where the personal
information does not relate to the public servant’s usual duties and responsibilities. For
example, if a document included information about an individual’s disposition or private
characteristics, disclosure is likely to be unreasonable.10
Previous decisions of the Information Commissioner have found that it would be
unreasonable to disclose home addresses of public servants.
11 I have also considered that
the information is not well known or publicly available, could reasonably be expected to
10 Ibid at [6.157]
11 See
‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 at [59]-[60] and
‘JZ’ and
Department of the Prime Minister and Cabinet [2016] AICmr 78 at [35].
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cause detriment to the individuals concerned, and the individuals concerned would be likely
to oppose disclosure.
For these reasons, I consider that disclosure of this information would be unreasonable and
that the four tax invoices are conditionally exempt in part under s 47F of the FOI Act.
Public Interest Test Having decided that all tax invoices are conditionally exempt in part under s 47E(d), and four
of the tax invoices conditionally exempt in part under s 47F, I am required to consider
whether disclosure of the conditionally exempt material would be contrary to the public
interest test outlined in s 11A(5) of the FOI Act. The only factor in favour of access is that
disclosure would promote the objects of the FOI Act by facilitating and promoting public
access to information. A factor against disclosure of the ComCar account numbers is that
the disclosure could reasonably be expected to prejudice the security of the Commission.
Factors against disclosure of the residential suburbs of Members are that disclosure:
• could reasonably be expected to harm the interests of an individual or group of
individuals;
• could reasonably be expected to prejudice the protection of an individual's right to
privacy; and
• could reasonably be expected to prejudice the management function of the
Commission.
I consider that in each case, the public interest is weighted more heavily against disclosure
and therefore giving access to the conditionally exempt material would, on balance, be
contrary to the public interest.
Section 22 of the FOI Act – Deletion of exempt matter or irrelevant material
Section 22(2) of the FOI Act requires an agency to give an applicant access to an edited
copy of a document, with the exempt matter deleted, if it is reasonably practicable for the
agency to prepare the edited copy, having regard to:
• the nature and extent of the modification (s 22(1)(c)(i)); and
• the resources available to modify the document (s 22(1)(c)(ii)).
I have considered that it is reasonably practicable to prepare an edited copy of the
documents that I have found exempt.
I have also considered that the Official Travel Policy and the Domestic Travel Policy (draft)
contain information that is not about ComCar use and is therefore irrelevant to category 2 of
your request, and that the tax invoices contain information that does not relate to ComCar
use on the specified dates and locations and is therefore irrelevant to category 6 of your
request. Pursuant to s 22(2), I have considered that it is reasonably practicable to prepare
an edited copy of the documents with the irrelevant material deleted.
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Attachment B – Schedule of Documents
Document
Description of document
Decision
number
1
List of persons within the
Release in full
Commission who have access to a
ComCar account
2
Official Travel Policy
Irrelevant information
s 22
Exempt in part
s 47E(d)
3
Domestic Travel Policy (draft)
Irrelevant information
s 22
Exempt in part
s 47E(d), s 47F
4
Member Code of Conduct
Release in full
5
Remuneration Tribunal
Release in full
Determination 2016/07
6
Document containing the total
Release in full
number of instances in which
ComCar services were used by
Commission Members in 2016
7
Tax Invoice for Commissioner Tim
Irrelevant information
Lee, dated 30 June 2016
s 22
Exempt in part
s 47E(d), s 47F
8
Tax Invoice for Senior Deputy
Irrelevant information
President Ian Watson, dated 30
s 22
June 2016
Exempt in part
s 47E(d)
9
Tax Invoice for Commissioner Leigh
Irrelevant information
Johns, dated 30 June 2016
s 22
Exempt in part
s 47E(d)
10
Tax Invoice for Senior Deputy
Irrelevant information
President Matthew O’Callaghan,
s 22
dated 30 June 2016
Exempt in part
s 47E(d)
11
11
Tax Invoice for Commissioner Leigh
Irrelevant information
Johns, dated 31 July 2016
s 22
Exempt in part
s 47E(d)
12
Tax Invoice for Senior Deputy
Irrelevant information
President Jonathan Hamberger,
s 22
dated 31 July 2016
Exempt in part
s 47E(d), s 47F
13
Tax Invoice for Deputy President
Irrelevant information
Geoff Bull, dated 31 July 2016
s 22
Exempt in part
s 47E(d), s 47F
14
Tax Invoice for Senior Deputy
Irrelevant information
President Lea Drake, dated 31 July
s 22
2016
Exempt in part
s 47E(d), s 47F
15
Tax Invoice for Deputy President Val Irrelevant information
Gostencnik, dated 31 July 2016
s 22
Exempt in part
s 47E(d)
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Document Outline