FOI 17 43 Decision Letter.pdf

Reference:
FOI 17/43
Contact:
FOI Team
Telephone:
(02) 6215 1783
e-mail:
xxx@xxxxxxx.xxx.xx

via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Sir/Madam,

Freedom of Information Request – FOI 17/43
Thank you for your email to the Department of Finance (Finance) in which you sought access
to the following documents under the Freedom of Information Act 1982 (FOI Act):

Accordingly, I request documents which detail the remuneration paid to each of the
Department of Finance’s (the ‘Department’s’) SES officers in the following financial
years - FY2013/14, FY 2014/15 and FY2015/16. The group certificates/end-of-year
PAYG payments summaries issued by the Department to each of its SES staff in those
years can be quickly and easily identified and retrieved, and will efficiently and
accurately provide the information the subject of my request. Accordingly, those
documents are the subject of my request.

I am willing to agree to the decision maker redacting information relating to the tax
file numbers, the home addresses and information relating to the amount of tax
withheld for each of the relevant SES officers that may be contained in the relevant
documents. I am willing to further narrow the scope of my request by limiting it to
officers employed by the Department who, at the time of my application, were
categorised as SES officers, meaning that:

- Departmental staff who were once SES officers at the Department, but weren’t
categorised as such at the time of this application; and
- the documents the subject of my request that pertain to SES officers who are no
longer employed by the Department;

are discounted from the scope of my application.

Request Consultation Process
On 28 March 2017, Finance wrote to you under s24AB of the FOI Act and asked you to
clarify the scope of your FOI request to enable it to continue to be processed.
1
One Canberra Avenue, Forrest ACT 2603  Telephone 02 6215 2222
Internet www.finance.gov.au

On 10 April 2017, you responded to the request consultation process and amended the scope
of your FOI request as follows:

Pursuant to paragraph 24AB(6)(b) of the FOI Act, my revised request is for the group
certificates/end of year payment summaries for the Department’s SES Band 3 officers
for the 2013/14,2014/15 and 2015/16 financial years.

Authorised decision-maker
I am authorised by the Secretary under subsection 23(1) of the FOI Act to grant or deny
access to documents under the FOI Act.

Decision
I have decided to refuse in full access to the documents falling within the scope of the revised
FOI request.

In making my decision, I have had regard to the following:
  the terms of your revised FOI request;
  the content of the documents that fall within the scope of your request;
  the relevant provisions of the FOI Act;
  Annual Reports of the Department of Finance; and
  the FOI Guidelines issued by the Office of the Australian Information Commissioner
(OAIC Guidelines).

Reasons for Decision
I consider the documents within the scope of your request contain information that is exempt
under s47F of the FOI Act which prescribes that:

(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).

Personal information is defined in subsection 4(1) of the FOI Act as:

...information or an opinion (including information forming part of a database),
whether true or not, and whether recorded in a material form or not, about an
individual whose identity is apparent, or can reasonably be ascertained, from the
information or opinion.

The documents requested contain the personal information of SES officer’s salary
information. Although you have agreed to remove some identifying information (such as the
names and tax file numbers of each individual), given the small number of officers that fall
within the scope of this request, I consider that it would be possible to reasonably ascertain
the identity of these individuals. In being able to ascertain the identity of the individuals the
documents would contain the following information about those individuals: salary,
employer, and employment level. Therefore, I am satisfied that the documents contain
personal information within the meaning of s4 of the FOI Act.

Subsection 47F(2) of the FOI Act prescribes that:

(2) In determining whether the disclosure of a 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.

Having regard to subsection 47F(2), I consider that there is a reasonable expectation that
Finance maintains the privacy of individuals who receive payment summaries.  The personal
information contained within each document is not available from publicly accessible sources
and it is not widely known that the individuals are associated with the matters dealt with in
the document. While I note that the Finance’s Annual Report does provide details of the total
remuneration for senior management (Department of Finance: Annual Report 2015-16, page
141) I note that the information is not detailed on an individual basis.  Therefore, the
information within the scope of the request is not well known, and I consider that disclosure
of this information would be inconsistent with Finance’s obligations under the
Privacy Act 1988. As such, I am of the view that the information would be unreasonable to
disclose.

Having regard to the above, I consider that the information is not well known, and that its
release would constitute an unreasonable disclosure of personal information. Therefore,
having formed the view that the documents are conditionally exempt under section 47F of the
FOI Act, I am now required to consider whether disclosure of such information would be
contrary to the public interest (see ‘Public Interest Test’ below).

Public Interest Test
Having formed the view that the document contains conditionally exempt information, I am
now required to consider the public interest test for the purposes of working out whether
access to a conditionally exempt document would, on balance, be contrary to the public
interest.

I have considered that the following factors favour disclosure as prescribed by subsection
11B(3) of the FOI Act.

  Release of the document would promote the objects of the Act: I note that disclosure
of the document would give the community access to information that would not
otherwise be publicly available, although it would be revealing private information
about various individuals.
  Release would promote effective oversight of public expenditure: I note that the
document does relate to expenditure of public money, however, it does not provide
oversight of the processes around that expenditure and therefore there would be
limited benefit to the public in release of the document. Furthermore, information
providing greater transparency and oversight of the remuneration of senior
management officers is publicly available in Finance’s Annual Reports.

Subsection 11B(5) of the FOI Act prescribes that:

(5) In working out whether access to the document would, on balance, be contrary to
the public interest, an agency or Minister must have regard to any guidelines issued
by the Information Commissioner for the purposes of this subsection under section
93A.

As such, I consider the following factors, set out in the OAIC Guidelines, are against
disclosure of the document:

  Release of the document could be expected to prejudice an individual’s right to
privacy: This is a strong consideration. The document is not otherwise publicly
available and I consider disclosure could prejudice the individuals’ right to privacy by
revealing their personal salary information. This is both inappropriate and
unnecessary, as it does not add to the public interest value of the contents of the
document, particularly as detailed information on the remuneration of senior
management is provided in Finance’s Annual Reports. Noting this, I do not consider
that compelling reasons exist in order to override this right to privacy.
  Disclosure could reasonably be expected to prejudice the management of the
information function of a Commonwealth agency: I consider that disclosure of the
exempt document could undermine Finance’s ability to manage information held
within the department, particularly of a sensitive, personal nature. There is a
reasonable expectation of confidentiality from departmental staff that their individual
remuneration details will not be publicly released, and disclosure could result in a loss
of confidence in Finance’s ability to handle this type of information appropriately.
This could reasonably be expected to prejudice Finance’s operations in relation to its
recruitment and retention of staff.

I have not given any consideration to the irrelevant factors prescribed in subsection 11B(4) of
the FOI Act. Taking into account all the factors set out above, I have determined that the
document contains information that is conditionally exempt and that the factors against
disclosure of the documents outweigh the factors in favour of disclosure. As such, I have
decided that the document is conditionally exempt, in full, under section 47F of the FOI Act.

Charges
No charges were imposed for the processing of your request.

Review and appeal rights
You are entitled to request an internal review or a review by the OAIC of my decision. The
process for review and appeal rights is set out at Attachment A. If you have any questions in
regards to this request, please contact the FOI Team on the above contact details.

Yours sincerely

Rachael Jackson
Assistant Secretary, People Branch
Department of Finance

April 2017

ATTACHMENT A

Freedom of Information – Your Review Rights
If you disagree with the decision made by the Department of Finance (Finance) under the Freedom
of Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want
to seek review if you sought certain documents and were not given full access, if you have been
informed that there will be a charge for processing your request, if you have made a contention
against the release of documents that has not be agreed to by the Department, or if your
application to have your personal information amended was not accepted.  There are two ways you
can ask for review of a decision: internal review by Finance, or external review by the Australian
Information Commissioner.
Internal Review
review access refusal decisions (s 54L(2)(a) of

the FOI Act), access grant
If Finance makes an FOI decision that you

disagree with, you can ask Finance to review
decisions (s 54M(2)(a)), refusals to extend the
its decision. The review will be carried out by
period for applying for internal review under
a different agency officer, usually someone at
s 54B (s 54L(2)(c)), and agency internal review
a more senior level. There is no charge for
decisions under s 54C (ss 54L(2)(b) and
internal review.
54M(2)(b)).
You must apply within 30 days of being

notified of the decision, unless Finance
If you are objecting to a decision to refuse
agrees to extend the application time. You
access to documents, impose a charge or
should contact Finance if you wish to seek an
refuse to amend a document, you must apply
extension.
to the IC within 60 days of being given notice
Finance is required to make a review decision
of the decision. If you are objecting to a
within 30 days. If Finance does not do so, the
decision to grant access to another person,
original decision is considered to be affirmed.
you must apply within 30 days of being

notified of that decision.
How to apply for internal review

Do I have to go through Finance’s internal
You must apply in writing and should include
review process first?
a copy of the notice of the decision provided

and the points you are objecting and why.
No. You may apply directly to the IC.
You can lodge your application in writing
However, going through Finance’s internal
through one of the contact details provided
review process gives Finance the opportunity
at the end of this document.
to reconsider its initial decision, and your

needs may be met more quickly without
Review by the Australian Information
undergoing an external review process.
Commissioner (IC)

Do I have to pay?
The IC is an independent office holder who

can review the decisions of agencies and
No. Review by the IC is currently free.
ministers under the FOI Act. The IC can

How do I apply?
health care and pension concession card

holders and the AAT can waive the fee on
You must apply for IC review in writing and
financial hardship grounds.
you can lodge your application in one of the

following ways:
Investigation by the Ombudsman

Post:  Office of the Australian Information
The Commonwealth Ombudsman can also
Commissioner
investigate complaints about action taken by
GPO Box 2999
agencies under the FOI Act.  However, if the
CANBERRA   ACT   2601
issue complained about either could be or
Email:  xxxxxxxxx@xxxx.xxx.xx
has been investigated by the IC, the
Fax:    02 9284 9666
Ombudsman will consult the Commissioner
In person:
Level 3
to avoid the same matter being investigated
175 Pitt Street
twice.  If the Ombudsman decides not to
SYDNEY   NSW   2000
investigate the complaint, then they are to

transfer all relevant documents and
An electronic application form is also
information to the IC.
available on the OAIC’s website
The IC can also transfer a complaint to the
(www.oaic.gov.au).  Your application should
Ombudsman where appropriate. This could
include a copy of the notice of the decision
occur where the FOI complaint is only one
that you are objecting to (if one was
part of a wider grievance about an agency’s
provided), and your contact details.  You
actions.  It is unlikely that this will be
should also set out why you are objecting to
common. You will be notified in writing if
the decision.
your complaint is transferred.

Applications to the Ombudsman should be
Making a complaint
directed to the following address:

You may make a written complaint to the IC
Post:  Commonwealth Ombudsman
about actions taken by Finance in relation to
PO Box 442
your application. However, if you are
CANBERRA   ACT   2601
complaining that a Finance decision is wrong,
Phone: 02 6276 0111
it is treated as an application for review. For
1300 362 072
further information, see FOI fact sheet 13 –

Freedom of Information: How to make a
Finance FOI contact details
complaint.
FOI Coordinator

Legal Services Branch
When can I go to the Administrative Appeals
Department of Finance
Tribunal (AAT)?
One Canberra Avenue

FORREST  ACT  2603
Under the FOI Act, you must seek external
Phone:  02 6215 1783
review through the IC prior to applying to the
Email:  xxx@xxxxxxx.xxx.xx
AAT for such a review. The fee for lodging an
Website:  www.finance.gov.au/foi/foi.html
AAT application is currently $884 (from 1 July
2016), although there are exemptions for