FOI 784 Anonymous Decision Letter.pdf

I am willing to further narrow the scope of my request by limiting it to officers employed by
the OAIC who, at the time of my application, were categorised as SES officers, meaning
that:

  OAIC staff who were once SES officers at the OAIC, 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 OAIC;

are discounted from the scope of my application.’

On 28 September 2017 the Office of the Australian Information Commissioner (OAIC) released
its decision to the OAIC request, noting you had later agreed to refine the scope of your initial
request to further exclude the names of individual SES Officers.

A confirmation email was sent to you on 1 December 2017, in which confirmation of the scope
of your request was sought, and a response was provided by you on 12 December 2017 in
which you agreed to refine the scope of your request to only include:

The  salary  paid  to  SES  officers  currently  employed  by  the  FWO  (who  at  the  time  of  the
request are categorised as SES officers) and that you also consent to the deletion of any
personal information other than:

  Information that discloses the officers precise salary for the relevant financial years; and
  Information identifying what the document is (e.g. a group certificate/payment summary,
an employment contract or a s.23(1) Determination) and the period that it covers.

DECISION AND STATEMENT OF REASONS FOR DECISION

I am authorised by the Fair Work Ombudsman, under s. 23 of the FOI Act, to make decisions
on requests for access to documents.

I have identified that the FWO holds a number of documents within the scope of your request
following inquiries with officers able to identify relevant documents.
I have decided that the documents are conditionally exempt under ss. 47E(c) and 47F(1) of
the  FOI  Act.  Pursuant to  s.  11A(5)  I  have further  decided  disclosure  would  be,  on  balance,
contrary  to  the  public  interest  and  therefore  that  access  will  be  refused.  The  details  of  my
decision are set out below.
In making my decision, I took into account:
  your request;
  information in the documents falling within the scope of your request;
  the FOI Act;
  the Australian Information Commissioner’s Guidelines (OAIC Guidelines);
  consultation  with  officials  about  the  nature  of  the  documents  and  the  Agency’s
operating environment; and
  the FWO’s annual reports and executive remuneration published on its website.

Certain operations of agencies

Section 47E(c) of the FOI Act provides that:

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‘A  Document  is  conditionally  exempt  if  its  disclosure  under  this  Act  would,  or  could
reasonably  be  expected  to...have  a  substantial adverse  effect  on the  management  or
assessment of personnel by the Commonwealth, by Norfolk Island or by any agency’.

The precise salary of officers engaged as Senior Executive Service (SES Officers) over three
financial  years  is  information  relating  to  the  management  of  personnel.  The  salary  of  SES
Officers is determined through a process of negotiation between the Agency Head and each
individual SES Officer.

I  am  satisfied  that  disclosure  of  the  precise  salary  paid  to  individual  SES  Officers  would
substantially  and  adversely  effect  the  FWO’s  management  of  personnel,  namely  the
recruitment, promotion and compensation of SES Officers, in the following ways:

  the  FWO’s  bargaining  position  in  current  and  future  negotiations  would  or  could
reasonably be expected to be undermined, as SES Officers (or potential SES Officers)
will be able to benchmark their salary against others prior to negotiating their terms and
conditions; and


SES  Officers  may  compare  precise  salaries  paid  to  other  individual  SES  Officers  and
this may adversely effect the confidence of individuals as to the confidentiality of salary
negotiations between individual SES Officers and the Agency.

I have therefore determined that this material is conditionally exempt under s. 47E(c) of the
FOI Act.

Personal privacy

Section 47F(1) of the FOI Act provides 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).’

In considering whether the information is conditionally exempt under s. 47F(1) I am required
to  consider  whether the disclosure  of  personal  information  would  be  unreasonable.  Section
47(2) of the FOI Act provides a list of matters that must be regarded when determining whether
the  disclosure  would  involve  the  unreasonable  disclosure  of  personal  information.  This
includes whether it is well known, whether it is available publicly, 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, and any other relevant matters.

Section 4  of  the  FOI Act  states  that  ‘personal  information’  has  the  same  meaning  as  in  the
Privacy Act 1988. Section 6 of the Privacy Act 1988 states:

personal information means 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.

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In  determining  whether  the  scope  of  your  request  includes  personal  information,  I  have
considered  the  OAIC  Guidelines  to  determine  whether  the  individual  SES  Officers  are
reasonably identifiable in the particular circumstances.2

The documents requested identify individual SES Officers and contain information about the
salary  each  individual  was  paid  in  relevant  financial  years  by  the  FWO  as  their  employer.
Payment summaries contain information such as tax information, reportable superannuation,
home address and employee numbers. They are prepared to comply with the obligations of
the FWO under Commonwealth taxation laws.

The identity of the SES Officers can be inferred from the information falling within the scope of
your request through a process of deductive reasoning, even where the identity of individuals
is replaced by an identifier and removal of some personal information occurs. For example:

    disclosing  an  individual’s  salary  paid  to  them  over  a  period  of  time  may  disclose
personal information such as periods of unpaid leave;

    the  identity  of  SES  Officers  will  be  particularly  apparent  to  those  familiar  with  the
movements of SES Officers, and when they were engaged across the three financial
years.  The  FWO  has  a  small  SES  cohort.    As  the  appointment  of  SES  Officers  is
publicly  available  information,  the  personal  information  will  not  necessarily  only  be
known to a small number of employees within the agency familiar with staff movements.

I note that the OAIC Guidelines state that the public servants’ personal information does not
generally include personal information included in a document because of their usual duties or
responsibilities.3 The precise salary paid to each SES Officer is not information associated with
the  performance  by  them  of  their  usual  duties  and  responsibilities,  rather  it  relates  to  the
personal  financial  affairs  of  those  individuals.  It  is  not  well-known  or  available  publicly.4
Consistent with the obligations of the Agency under the Privacy Act 1988, access to personal
information  of  employees  is  limited  to  a  very  small  number  of  authorised  individuals,  and
otherwise is considered and kept confidential as with all other employee records.  Disclosure
would be inconsistent with these obligations.

I have therefore determined that the documents are conditionally exempt under s. 47F(1) of
the FOI Act because disclosure would be unreasonable.

The public interest test

The  exemptions  in  ss. 47E(c)  and  47(F)  are  ‘public  interest  conditional  exemptions’  and
s. 11A(5) of the FOI Act requires that I give you access to a conditionally exempt document
unless it would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act lists four factors that favour access when applying the public
interest test. In this instance, there are three relevant factors when deciding whether to disclose
the information in the documents to you:

  to promote the objects of the FOI Act;

2 OAIC Guidelines, [6.131] - [6.135].
3 OAIC Guidelines, [6.153].
4 The Agency publishes information about SES salary and highly paid officials on its website (see
further below), however this is not provided on an individual basis.
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  inform debate on a matter of public importance; and
  promote effective oversight of public expenditure.

The OAIC Guidelines contain a non-exhaustive list of further factors favouring disclosure.5 In
my view, none of these factors is relevant here. The FOI Act does not list any factors against
disclosure, however the Guidelines contain a non-exhaustive list of factors against disclosure.6

Disclosure would broadly promote the objects of the FOI Act by providing access to
information held by the Government, and may generally promote oversight of public
expenditure by revealing the precise salary paid to SES Officers. It may inform debate in the
context of enterprise bargaining occurring within the Australian Public Service, a matter of
some public importance.

The objects of the FOI Act can be attained, not just through access to information held by the
Government, but by referring to publicly available sources which includes material regarding
SES salaries. The FWO website lists a summary of the remuneration paid to SES employees
during the 2016-17 financial year. A copy is  available from the FWO website at:
https://www.fairwork.gov.au/ArticleDocuments/725/Executive-remuneration-2016-
2017.pdf.aspx.

In addition, the FWO’s annual reports also contain information about remuneration paid to its
staff, including SES Officers, for each of the relevant financial years as follows:


2014/15 Annual Report, at page 47:
https://www.fairwork.gov.au/ArticleDocuments/710/fair-work-ombudsman-annual-
report-2014-15.pdf.aspx

2015/16 Annual Report at: https://www.fairwork.gov.au/annual-reports/annual-report-
2015-16/03-management-and-accountability/workforce-management

2016/17 Annual Report at: https://www.fairwork.gov.au/annual-reports/annual-report-
2016-17/04-management-and-accountability/workforce-management

Further, the Australian Public Service Commission (APSC) conducts an annual census
across Australian Public Service (APS) agencies that informs APS-wide remuneration
practices. A copy of these annual reports (from 2010) is available from the APSC website at
http://www.apsc.gov.au/publications-and-media/current-publications/remuneration-surveys.

I am not satisfied that disclosure of the information you have requested would serve the
public interest in any greater way than the material referred to above that is publicly
available.

A  relevant  factor  against  disclosure  is  that  release  of  the  information  could  reasonably  be
expected to prejudice the protection of a person’s right to privacy. This is particularly relevant
where  disclosure  could  be  reasonably  considered  to  reveal  information  about  private  and
confidential matters to the SES Officers that are of a sensitive nature.

The  personal  information,  namely  the  precise  salary  of  SES  Officers,  is  not  widely  known.
While the salary information of SES Officers is broadly summarised on the FWO’s website, the
precise  salaries  paid  to  SES  Officers  in  each  financial  year  are  not.  The  nature  of  the
information  is  sensitive  and  it  is  reasonable  to  assume  that  these  employees  expect  their

5 OAIC Guidelines [6.19].
6 OAIC Guidelines [6.22].
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salary, and negotiations concerning the terms of their employment, to be treated in confidence.
Disclosure could reasonably be expected to adversely impact the interests of the individuals.

Another relevant factor against disclosure is when the release of information could reasonably
be  expected  to  prejudice  the  management  function  of  the  agency.  SES  Officers  are  not
covered by the Fair Work Ombudsman Enterprise Agreement 2016 – 2019 and SES Officers
directly  negotiate  their  salary  with  the  Agency  Head.  Release  of  precise  individual  salary
information  would  undermine  the  FWO’s  bargaining  position  and  ability  to  negotiate  salary
confidentially with individual SES Officers.

The  significant  impact  upon  the  Agency  and  the  affected  employees  from  the  release  of
information within the scope of the request is a matter of public interest.

I have not taken any irrelevant factor set out in s. 11B(4) of the FOI Act in deciding whether
access to the document would on balance be contrary to the public interest.

Having considered each of the factors for and against release, and afforded weight to each of
them,  I  have  determined  it  is  not  in  the  public  interest  to  release  the  information  within  the
scope of the request for access. I do however refer you to the information referenced above
that is published by the FWO and that relates to SES salary for each financial year.

Additional comments

Where access to the requested documents is refused, s. 22 of the FOI Act provides that an
edited copy of the documents may be provided if it is possible to redact exempt information.
While your request identified that the FWO could redact all information other information that
discloses each SES Officer’s precise salary for the relevant financial year and information that
identifies  what  the  document  is,  based  on  my  determinations  above,  the  redactions  would
make the document meaningless and therefore would not be appropriate to release.

I have further considered a document created to meet the terms of your request pursuant to s.
17 of the FOI Act. Section 17 of the Act applies where:

it appears from the request that the desire of the applicant is for information that is not
available in discrete form in written documents of the agency

As documents containing the information requested exist in a discrete form, the request does
not fall within s. 17(1)(b) of the FOI Act.

Review Rights

I have attached a document setting out your rights of review of this decision (Attachment A).

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Contact details

If you need further information, please direct your enquiries via email to xxx@xxx.xxx.xx where
a member of the Customer Feedback & Information (CFIA) team familiar with your FOI request
and can answer any questions you might have.

Yours sincerely

Michelle Carey
A/g Executive Director – Finance, Assurance & Business Services
Fair Work Ombudsman
www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

Attachment A
INFORMATION ON RIGHTS OF REVIEW & COMPLAINTS

Rights of review

If you are dissatisfied with this decision you can apply for internal review by this agency (Option 1 below)
or external review by the Australian Information Commissioner (IC Review) (Option 2 below).

You do not have to apply for internal review before seeking IC review. However, the Information
Commissioner has expressed the view that it is preferable for a person to seek internal review by the
agency before applying for IC Review. If you choose Option 1 (internal review), you can also apply for
IC review of the internal review decision within 60 days after receiving notice of our decision.

Option 1 – Internal review

You can seek internal review of the decision. An application for internal review must be made in writing
within 30 days after the date you were notified of the decision, or within such further period as the Fair
Work  Ombudsman  allows.  The  internal  review  will  be  conducted  by  a  senior  officer  who  had  no
involvement in the initial decision.

There is no particular form required to make a request for internal review. However, it would help the
reviewer if you said, in writing, why you think the decision should be reviewed.

An application for an internal review of the decision should be sent to:

Email: xxx@xxx.xxx.xx
Fax: (02) 6204 2364
Ph: (02) 8293 4681

FOI Manager
GPO Box 9887
MELBOURNE  VIC 3001

Option 2 – Review by the Australian Information Commissioner

Alternatively, you can apply in writing to the Australian Information Commissioner for IC review of the
decision. An application for IC Review must be made within 60 days after the day you were given notice
of this decision.

In making your application, you need to provide an address for notices to be sent (this can be an email
address) and a copy of this decision. It would also help the Australian Information Commissioner if you
set out the reasons for seeking IC review in your application.

To  apply  for  IC  review,  please  refer  to  the  FOI  Fact  Sheet  13  issued  by  the  Office  of  the  Australian
Information
Commissioner
(http://www.oaic.gov.au/images/documents/freedom-of-information/foi-
factsheets/FOI factsheet12 your-rights online July2012.pdf).  You  can  file  your  application  online  at
https://forms.business.gov.au/aba/oaic/foi-review-/ or download a review form from the OAIC’s website
www.oaic.gov.au.

Complaints

You can complain to the Australian Information Commissioner about action taken by the Fair Work
Ombudsman in relation to your freedom of information request. Your complaint must be in writing and it
is the Information Commissioner’s preference that an online complaint form be completed. The form can
be  found  at  https://forms.business.gov.au/aba/landing.htm?formCode=ICCA 1.  Alternatively,  you  can
send a letter to the Office of the Australian Information Commissioner, GPO Box 5218, Sydney NSW
2001 or send an email to xxxxxxxxx@xxxx.xxx.xx.

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