D Watson
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: C19/559
Dear D Watson,
Freedom of Information request
1. I refer to your request dated 14 March 2019 seeking access to documents held by the Australian
Public Service Commission (the Commission) under the Freedom of Information Act 1982 (FOI Act).
2. You requested access to the fol owing:
any documents held by the APSC, that relate to my FOI application [Our ref C18/1974], and that
were provided to, or received from:
-
the Minister for the Public Service and/or his office;
-
Senator Michaelia Cash and/or her office;
-
the Australian Building and Construction Commission; and/or
-
the Department of Employment.
Scope of your request
3. In subsequent email correspondence you agreed to exclude documents already considered and
released as part of your earlier FOI request C18/1974. You also agreed to:
redacting the personal info of third parties except where that personal info is of public servants
and that personal info is included because of their usual duties/responsibilities (see [6.152]
onwards of the FOI guidelines) or the personal info is simply the name of a Minister.
4. I confirm that I have interpreted the reference to the ‘Department of Employment’ as the
‘Department of Jobs and Smal Business’ as it was known at al relevant times.
5. Please note that I have removed identical duplicate email documents from disclosure so you only
receive material relevant to your request once. I have also redacted parts of the documents that are
irrelevant to the scope of your request.
Consultation pursuant to section 27A of the FOI Act
6. Your request sought access to documents that contain the personal information of persons other
than you. On 29 March 2019 the Commission notified you that consultation with relevant third
parties would occur in accordance with section 27A of the FOI Act.
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7. I confirm that the consultation process is now complete. In the making of my decision I have taken
submissions made by al parties, including those provided by you in the making of your request into
account while formulating my own view on disclosure.
My decision
8. I am an officer authorised under subsection 23(1) of the FOI Act to make decisions in relation to FOI
requests.
9. Having caused searches to be undertaken, I have determined that the Commission holds 28 pages of
material within the scope of your request.
10. I have decided to grant access in part to al documents.
11. Under section 22 of the FOI Act, an edited version of the documents, with the exempt material
deleted has been prepared in response to your request.
Section 47C – Conditional exemption about deliberative processes
12. Section 47C of the FOI Act conditional y exempts documents containing deliberative matter, relating
to either an opinion, advice or recommendation that has been obtained, prepared or recorded, or a
consultation or deliberation that has taken place in the course of, or for the purposes of, a
deliberative process of the government, an agency, or minister.
13. The documents in scope contain deliberative processes for the fol owing reasons:
a. The documents include submissions made by the Australian Building and Construction
Commission (ABCC) to the Commission in relation to your FOI application C18/1974 as a
result of consultation;
b. These submissions, by their nature, are a ‘deliberative matter’ – that is, they are matters
which an FOI decision maker would take into account in making a decision on access under
the FOI Act;
c. The submissions have been provided by the ABCC to the Commission confidential y and on
the basis that its distribution would be limited.
14. Releasing this document is contrary to the public interest because:
a. There is a strong public interest in members of the public service being able to communicate
frankly with each other, including in submissions regarding the disclosure of documents
under the FOI Act.
15. I note that while I have relied on section 47C for redacting large parts of the documents fal ing within
scope, these documents additional y contain personal information of departmental officers which is
considered below. I am of the view that parts of the large parts of documents exempt under section
47C would also be exempt under section 47F.
16. I further note that some documents fal ing within scope also contain references to material in FOI
decision C18/1974 that was exempted under that decision. That is, in making submissions about
relevant exemptions, the ABCC has described in a level of detail, matters that have already been
determined to be exempt under the first FOI decision.
Section 47F – Conditional exemption about personal privacy
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17. Documents fal ing within scope contain personal information of departmental officers. While the
personal information relates to public servants performing their official duties, I consider that
disclosure of this information would be unreasonable because:
a. The officers are not SES officers;
b. redaction of the officers’ personal information would not detract from an understanding of
the documents;
c. The officers are legal officers and disclosure of direct contact information of the officers
would circumvent the relevant agency’s established framework and protocols for
communicating with the public, noting also that the relevant officers names and contact
details are not publicly known;
d. The documents’ release wil be published on a website and disclosure of the officers’ name
and contact information may expose the officers to potential unwarranted contact and
scrutiny by the public, which would impact the officers’ ability to discharge their proper
functions and duties.
18. Releasing the personal information of the officers is contrary to the public interest because:
a. it would not shed any light on the workings of government;
b. it would not detract from an understanding of the documents;
c. it would not encourage public debate or promote oversight of the relevant agencies;
d. it could expose the relevant officers’ to public scrutiny, cause personal and professional
detriment and harm and amount to an unreasonable invasion of privacy;
e. it serves no public purpose.
19. In considering this exemption I have taken into account the decision of the Information Commission
of 1 December 2017 (CFMEU and ABCC (Freedom of Information) [2017], AlCmr 125) upholding a
decision of the ABCC not to disclose the names and details of ABCC staff members due to unwanted
attention and threats to those individuals that could result from disclosure.
Review rights
20. If you are dissatisfied with this decision, you are entitled to seek a review. Your rights are set out at
Attachment A to this letter.
Publication
21. The Commission must publish information relating to material that has been released in response to
each FOI access request. This publication is known as a 'disclosure log'.
22. The disclosure log requirement does not apply to personal information about any person if it would
be unreasonable to publish the information or to information about the business, commercial,
financial or professional affairs of any person if publication of that information would be
unreasonable.
23. The Commission is not required to consult you on any decision to publish information that is released
to you and the decision to publish information is not subject to review internal y by the Commission
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or external y by the Australian Information Commissioner. Any person can however, make a
complaint to the Australian Information Commissioner about how an agency handles an FOI request
Contacts
24. If you require clarification of any of the matters discussed in this decision please contact the
Commission’s FOI Officer by email at xxx@xxxx.xxx.xx .
Yours sincerely
Sayuri Grady
General Counsel
7 May 2019
Enclosures
Attachment A – Rights of Review
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Rights of Review
Attachment A
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of an FOI
decision, you may contact us to discuss your request and we wil explain the decision to you.
Seeking review of a Freedom of Information decision
If you stil believe a decision is incorrect, the Freedom of Information Act 1982 (FOI Act) gives you the
right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act, you can apply
for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service Commission, and/or
2. a external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who made
the original decision wil carry out the review. The Internal Review Officer wil consider al aspects of
the original decision and decide whether it should change. An application for internal review must
be made in writing within 30 days of receiving this letter to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Coordinator
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fil in a form. However, it is a good idea to set out any relevant submissions you
would like the Internal Review Officer to further consider, and your reasons for disagreeing with the
decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision. You have 60 days to apply in writing
for a review by the Office of the Australian Information Commissioner (OAIC) from the date you
received this letter or any subsequent internal review decision.
You can lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you should
include your contact information, a copy of the related FOI decision and provide details of your
reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Information Commissioner must be made in writing. The Information
Commissioner's contact details are:
Telephone:
1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise of
powers or the performance of functions under the FOI Act. There is no fee for making a complaint. A
complaint to the Ombudsman may be made in person, by telephone or in writing. The Ombudsman's
contact details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
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