FOI 793 POOL FOI decision Letter.pdf

The  documents  falling  within  the  scope  of  your  request  are  listed  in  the  schedule  at
Attachment  A  to  this  letter. The schedule  also  states my  decision for  each  document  and,
where access has been refused, the section of the FOI Act under which the material is exempt.
Where a document is released in full, the last column states ‘Release’ and where a document
is exempt in part or full, the last column states ‘Release with deletions’ or ‘Exempt’ respectively.

Exemptions

I have determined that some documents are exempt under section 47(1)(b) of the FOI Act and
are not appropriate to release to you as they contain information that is commercially valuable
and  is  provided  to  the  FWO  on  a  confidential  basis.  The  details  of my  decision  are  set  out
below.

Documents disclosing trade secrets or commercially valuable information
The OAIC Guidelines explain that for a document to be exempt under section 47(1)(b) of the
FOI Act a document must satisfy two criteria:1
1.  the document must contain information that has a commercial value either to an agency
or to another person or body, and
2.  the commercial value of the information would be, or could reasonably be expected to
be, destroyed or diminished if it were disclosed.

I consider that the documents relating to the ‘APS Employee Census  – Agency  Benchmark
Report: FWO’ (for years 2016 and 2017) (Census Reports) and the ‘Australian Public Service
(APS)  Remuneration  Report  –  Individual  Agency  Report’  (for  years  2014,  2015  and  2016)
(Remuneration Reports) are exempt under section 47(1)(b) of the FOI Act.

The  Census  Reports  benchmark  the  FWO  against  other  federal  government  agencies  to
inform  the  FWO’s  strategic  direction  and  achievement  of  the  government’s  priorities.  The
Census  Reports  also  function  as  a  tool  to  assist  management  review,  refine  and  develop
agency  policies  and  procedures  to  improve  employee  engagement  and  efficiency.  The
Remuneration Reports assist the FWO to achieve a more efficient and capable workforce. The
collection and analysis of remuneration data also assists to inform policy development on the
APS-wide Work Level Standards and remuneration policy options.

The Census Reports are created by the APSC, as part of its broader APS wide census, and
provided to the FWO under a fee-for-service arrangement as outlined in a Memorandum of
Understanding between the FWO and the APSC. The Census Reports are only available for
purchase to the FWO and their distribution within the agency is very limited. The Remuneration
Reports are also provided on a confidential basis by the APSC to the FWO – which is further
noted  in  the  email  correspondence  on  pages  005,  077  and  129  –  under  a  fee-for-service
arrangement as part of a separate Memorandum of Understanding between the FWO and the
APSC.

I  consider  the  Census  Reports  and  Remuneration  Reports  are  of  commercial  value  to  the
APSC,  the  FWO,  and  more  generally  to  the  Commonwealth,  and  which  would  be  greatly
diminished, if not destroyed, were they freely accessible to the ‘world at large’ by way of an
FOI  request.  Further,  the  release  of  these  documents  could  reasonably  be  considered  to

1 OAIC Guidelines, [5.202] – [5.205].

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impede  the  Australian  Public  Service  Commissioner’s  (the  Commissioner)  ability  to
undertake the function  of developing, reviewing and evaluating the Australian Public Sector
workforce management policies as is required under section 41(2)(c) of the Public Service Act
1999.  The  data  and  information  provided  by  the  FWO,  and  contained  within  these  reports,
substantially  assists  the  Commissioner  in  his  performance  of  these  functions,  as  does  the
funding obtained by way of a service offering. Were these reports released, the FWO and other
agencies  could  reasonably  be  expected  to  reconsider  their  willingness  to  purchase  future
Census Reports and Remuneration Reports from the APSC, as well as reduce the quality of
information and candid nature of responses provided by employees participating in the annual
Census, were they be aware their responses could later be made publicly available.

Conditional exemptions – Census Reports and Remuneration Reports

I  have  determined  that  some  of  the  documents  in  the  Census  Reports  and  Remuneration
Reports would also be conditionally exempt under sections 47D, 47E and 47F of the FOI Act.
While not seeking to rely on these conditional exemptions at this time, I note that I consider
that some of these documents would also be contrary to the public interest to release.

The reasoning provided for the documents’ exemption under section 47 of the FOI Act would
also  apply  to  the  conditional  exemptions  outlined  in  sections  47D  and  47E  of  the  FOI  Act.
Section 47D of the FOI Act provides that a document is conditionally exempt where disclosure
would have a substantial adverse effect on the financial interests of the Commonwealth or an
agency.  In  this  case,  the  release  of  these  confidential  documents  could  reasonably  be
expected to reduce the ability of the APSC to generate revenue through its intellectual property,
derived  from  preparing  the  reports  and  providing  them  to  agencies  under  a  fee-for-service
arrangement.

Section 47E of the FOI Act conditionally exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on certain agency operations.2
Each  year  employees  of  the  APS  complete  the  census,  and  the  responses  –  which  are
provided  on  a  confidential  basis  –  are  aggregated  across  participating  agencies  for  the
preparation of the APS census report. This report assesses capability and capacity of the APS
to  meet  the  governments  priorities,  strategic  goals  and  service  delivery  standards,  and  is
submitted  each  year  to  the  Minister  Assisting  the  Prime  Minister  for  the  Public  Service  for
presentation to the Parliament for consideration.
Were  the  Census  Reports  released  and  their  commercial  value  diminished,  the  reduced
funding provided to the APSC would reasonably be expected to have a substantial adverse
effect on the Commissioner’s ability to fulfil his statutory functions to update the Parliament on
the state of the Australian Public Service.
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).

Section 4 of the FOI Act states that ‘personal information’ has the same meaning as in the

2 OAIC Guidelines, [6.95].

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Privacy Act 1988. Section 6 of the Privacy Act 1988 notes that personal information includes
where an individual is reasonably identifiable.3
The  Remuneration  Reports  include  some  information  that  would  reasonably  identify  an
individual, to employees within the agency or those familiar with staffing arrangements. This
applies where there are a limited number of employees in a particular category (for example,
those  in  receipt  of  certain  allowances  or  salary  sacrificing  arrangements).  While  a  public
servant’s personal information does not generally include personal information included in a
document because of their usual duties or responsibilities,4 this does not include information
relating to their precise financial affairs.

Conditional Exemptions – other documents

I have determined that other documents are conditionally exempt under sections 47C(1) and
47E of the FOI Act. The details of my decision and assessment of the public interest factors
relevant to these conditional exemptions is set out below.

Deliberative Matter

Section 47C of the FOI Act states:

(1)  A  document  is  conditionally  exempt  if  its  disclosure  ‘would  disclose  a  matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in
the  course  of,  or  for  the  purposes  of,  the  deliberative  processes  involved  in  the
functions  of  an  agency  or  Minister  or  of  the  Government  of  the  Commonwealth.

(2)  ‘Deliberative matter’  does  not  include  operational  information  or  purely  factual
material’.

I have decided some documents are conditionally exempt from disclosure because they would
disclose discussions and deliberations, relating to the exchange of opinions and reflections on
a particular proposed decision or course of action, between Mr Lloyd and Ms James about the
Service Delivery Office (SDO).

I acknowledge that parts of the information contained within these documents contains purely
factual material or operational information, as well as information that in and of itself may not,
on balance, be contrary to the public interest. In accordance with the OAIC Guidelines, I have
decided to release information where I consider this information can reasonably be separated
from the deliberative matter.5
Certain Operations of Agencies
Section 47E(d) of the FOI Act states:
A  document  is  conditionally  exempt  if  its  disclosure  under  this  Act  would,  or  could
reasonably be expected to

3 See also: OAIC Guidelines, [6.131] – [6.135].
4 OAIC Guidelines, [6.153].
5 OAIC Guidelines [6.74]; see also: [2013] AICmr69 at [83].

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ABN: 43 884 188 232

….
d)  have  a  substantial  adverse  effect  on  the  proper  and  efficient  conduct  of  the
operations of an agency.
I have determined that certain contact details of both Ms James and Mr Lloyd and their offices
are conditionally exempt under section 47E(d) of the FOI Act.
The agencies have established dedicated contact avenues for the public to ensure the large
volume  of  enquiries  received  are managed  efficiently  and  effectively.  Releasing the  contact
details of senior public servants and their offices could result in members of the public directing
their enquiries through these offices instead. This could reasonably be expected to adversely
affect both the ability of both agencies to manage contact with the public in a method that best
supports the agencies’ core duties, as well as the efficient management of individual officers’
workloads.
The public interest test – Other Documents

The exemptions in sections 47C(1) and 47E(1)(d) are ‘public interest conditional exemptions’.
Section 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:

(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.

The OAIC Guidelines contain a non-exhaustive list of further factors favouring disclosure.6 In
my view, none of these factors are relevant here.

The  FOI Act  does  not  list  any  factors  against  disclosure,  however  the  OAIC  Guidelines
contains a non-exhaustive list.7

Regarding the contact details of senior officials and their offices, while I acknowledge that the
open and public disclosure of information promotes the objects of the FOI Act, I consider this
factor outweighed by the prejudice caused to the management function of the agencies.

The  disclosure  of  the  deliberative  content  would  promote  the  objects  of  the  FOI  Act  by
providing  a right  of  access to  documents  and  increasing  public  participation  in Government
processes.  However,  I  consider  this  factor  is  outweighed  by  the  prejudice  that  would  result
from the agencies’ ability to obtain similar information in the future relating to the establishment
and  operations  of  shared  services  across Government,  namely  through  limiting future  frank
and  candid  deliberative communications  preliminary  to  an  ultimate  decision  between  senior
officials of government agencies.


6 OAIC Guidelines [6.17] – [6.19].
7 OAIC Guidelines [6.22].

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Taking into account the factors for and against disclosure, I have determined that giving access
to the information in the documents would, on balance, be contrary to the public interest.

Deletion of exempt material

Under  section 22  of  the  FOI Act,  when  a  document  contains  both  exempt  and  non-exempt
information, the exempt information can be deleted from the document so that the rest of the
document can be disclosed (where reasonably practical to do so). I have arranged for exempt
material to be deleted from a number of documents so that you can be provided with edited
copies.

I  have  determined  that  the  following  information  to  be  irrelevant  to  the  FOI  request,  and
accordingly, has been deleted wherever it occurs in the documents: names and contact details
of Australian Public Service Officers involved in facilitating the correspondence between  Ms
James and Mr Lloyd; the names of Australian Public Service Officers involved in processing
the  FOI  request;  and  any  personal  information  related  to  individuals  not  falling  within  your
revised  request  scope of 10 January 2018. I have also determined that any documents not
directly related to correspondence between Ms James and Mr Lloyd to be irrelevant to the FOI
request.  This  includes  the  correspondence  between  representatives  of  the  Department  of
Finance and Ms James. The documents containing exempt information under  section 22 of
the FOI Act are listed at Attachment A.

Further, I have determined that it would be impracticable to provide edited copies of a number
of documents that are exempt in full or outside the request scope. Having regard to the nature
and  extent  of  the  modifications  required  to  the  documents  and  available  resources,  I  have
determined  that the  number  of  deletions  would  be  so many  that the  value  of  the  remaining
released  documents  would  be  reduced.  The  documents  that  have  been  withheld  on  these
grounds are listed in the schedule at Attachment A.

Review Rights

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

Website Publication

Subject to certain exceptions, section 11C of the FOI Act requires agencies to publish online
any information released in response to freedom of information requests.

Section 11C contains some exceptions to this general requirement. These exceptions include
when the document contains business or personal information that it would be unreasonable
to publish.

In this instance, I have decided that it is appropriate to publish a copy of the edited documents
as there is no personal or sensitive business information that has not already been redacted
in accordance with section 22 of the FOI Act. As a result, they will shortly be made available
on  the  Fair  Work  Ombudsman’s  website  (www.fairwork.gov.au/about-us/accessing-
information).

www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

Contact details

If you need further information, please direct your enquiries to Cameron Hankins by email to
xxx@xxx.xxx.xx. Mr Hankins processed your FOI request and can answer any questions you
might have.

Yours sincerely

Sally Dennington
Director (A/g) – Customer Feedback and Information Access
Fair Work Ombudsman

www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

Attachment A

Pages
Date
Author
Addressee
Description
Decision   Exemptions Applied
001-
12.12.14
Natalie
John Lloyd
Email Chain and
Release
s. 22 Irrelevant Information - Removal of name of
002
James
(the APSC)
Attachment: – Appointment
with
FWO FOI officer.
(the FWO)
of Australian Public Service
deletions  s.  47E(d)  –  certain  operations  of  agencies
Commissioner

(FWO CEO’s office contact details).
003-
23.12.14
John
Natalie
Email – Resignation of chair  Release
s. 22 Irrelevant Information - Removal of name of
004
Lloyd
James
of the Fair Work Building
with
FWO FOI officer.
(APSC)
(FWO)
Industry Inspectorate.
deletions  s.  47E(d)  –  certain  operations  of  agencies

(FWO & APSC CEO’s office contact details).
005-
5.6.15
John
Natalie
Email – APS Remuneration
Release
s. 22 Irrelevant Information - Removal of name of
043
Lloyd
James
Survey and Individual
with
FWO FOI officer & non-SES officer names.
(APSC)
(FWO)
Agency Report
deletions  s.  47  -  Documents  disclosing  trade  secrets  or

commercially  valuable  information  –  FWO
Individual  Agency  Remuneration  Report  2014
(pages 6 – 31 withheld).
044
23.7.15
Natalie
John Lloyd
Email – State of the Service  Release
s. 22 Irrelevant Information - Removal of name of
James
(APSC)
Survey
with
FWO FOI officer.
(FWO)
deletions  s.  47E(d)  –  certain  operations  of  agencies

(FWO CEO’s office contact details).
www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

045-
22.7.15
John
Natalie
Email – 2016 APS
Release
s. 22 Irrelevant Information - Removal of name of
076
Lloyd
James
employee census – Results
with
FWO FOI officer & non-SES officer names.
(APSC)
(FWO)
for the Office of the Fair
deletions  s.  47  -  Documents  disclosing  trade  secrets  or
Work Ombudsman

commercially valuable information  – FWO 2016
APS  Agency  Benchmark  Census  Report
(pages 61—76 withheld).
077-
2.8.16
John
Natalie
Email – APS Remuneration
Release
s. 22 Irrelevant Information - Removal of name of
120
Lloyd
James
Report 2015  and Individual
with
FWO FOI officer & non-SES officer names.
(APSC)
(FWO)
Agency Report – FWO
deletions  s.  47  -  Documents  disclosing  trade  secrets  or

commercially  valuable  information  –  FWO
Individual  Agency  Remuneration  Report  2015
(pages 92 – 120 withheld).
121
23.9.16
Natalie
John Lloyd
Email - EA
Release
s. 22 Irrelevant Information - Removal of name of
James
(APSC)
with
FWO FOI officer.
(FWO)
deletions
122-
23.5.17
Natalie
John Lloyd
Email – FWO SES Cap –
Release
s. 22 Irrelevant Information - Removal of name of
124
James
(APSC)
letter from NJ to
with
FWO  FOI  officer  &  names  of  other  non-APS
(FWO)
Commissioner Lloyd
deletions  persons.
s.  47E(d)  –  certain  operations  agencies
(FWO CEO’s office contact details)
125-
24.5.17
JL
FWO
Email – FWO SES Cap –
Release
s. 22 Irrelevant Information - Removal of name of
126
letter from NJ to
with
FWO FOI officer.
Commissioner Lloyd
deletions   s.  47E(d)  –  certain  operations  of  agencies
(FWO & APSC CEO’s office contact details)

www.fairwork.gov.au
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127-
24.5.17
FWO
JL
Email – FWO SES Cap –
Release
s. 22 Irrelevant Information - Removal of name of
128
letter from NJ to
with
FWO FOI officer.
Commissioner Lloyd
deletions   s.  47E(d)  –  certain  operations  of  agencies
(FWO & APSC CEO’s office contact details)
129-
9.6.17
JL
FWO
Email – APS Remuneration
Release
s. 22 Irrelevant Information - Removal of name of
239
Report 2016  and Individual
with
FWO FOI officer & non-SES officer names.
Agency Report – Office of
deletions   s.  47  -  Documents  disclosing  trade  secrets  or
the Fair Work Ombudsman
commercially  valuable  information  -  FWO
Individual  Agency  Remuneration  Report  2016
(pages 211—239 withheld)
240-
30.6.17
FWO
JL
Email – Correspondence:
Release
s. 22 Irrelevant Information - Removal of name of
250
establishment of the SDO
with
FWO FOI officer & emailed information provided
Board and Governance
deletions   by the Department of Finance.
Committees
s. 47C – Deliberative Processes
251-
5.7.17
JL
FWO
Email – Correspondence:
Release
s. 22 Irrelevant Information - Removal of name of
254
establishment of the SDO
with
FWO  FOI  officer,  non-SES  officer  names  &
Board and Governance
deletions  emailed information provided by the Department
Committees
of Finance.
s. 47C – Deliberative Processes
s.  47E(d)  –  Certain  operations  of  agencies
(FWO CEO’s office contact details)

www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

255-
6.7.17
FWO
JL
Email – Correspondence:
Release
s. 22 Irrelevant Information - Removal of name of
257
establishment of the SDO
with
FWO  FOI  officer,  non-SES  APSC  names  &
Board and Governance
deletions  information  provided  by  the  Department  of
Committees
Finance.
s. 47C – Deliberative Processes
s.  47E(d)  –  certain  operations  of  agencies
(FWO CEO’s office contact details)
258-
27.7.17
JL
FWO
Email – 2017 APS
Release
s. 22 Irrelevant Information - Removal of name of
292
employee census – Results
with
FWO FOI officer & junior APSC officer name
for Office of the Fair Work
deletions  s.  47  -  Documents  disclosing  trade  secrets  or
Ombudsman
commercially  valuable  information  –  FWO  APS
Agency  Benchmark  Census  Report  2017
(pages 259 – 292 withheld)
293-
11.10.17
NJ
JL
Email Chain:– catch up in
Release
s. 22 Irrelevant Information - Removal of name of
294
-
CBR next week?
with
FWO FOI officer & non-SES officer names.
12.10.17
deletions  s.  47E(d)  –  certain  operations  of  agencies
(FWO & APSC CEO’s office contact details)

www.fairwork.gov.au
Fair Work Infoline 13 13 94
ABN: 43 884 188 232

Attachment B
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
Ph: (03) 9603 0947

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  12  issued  by  the  Office  of  the  Australian
Information  Commissioner  (https://www.oaic.gov.au/freedom-of-information/foi-resources/foi-
fact-sheets/foi-factsheet-12-your-review-rights).  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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ABN: 43 884 188 232