If not delivered return to PO Box 7820 Canberra BC ACT 2610
20 August 2019
Our reference: LEX 45021
Ms Evelyn Doyle
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Doyle
Decision on your Freedom of Information Request
I refer to your request dated 7 June 2019 and received by the Department of Human
Services (
department) on the same day for access under the
Freedom of Information Act
1982 (
FOI Act) to the following documents:
'1. All Ministerial Briefs relating to the decision to outsource Centrelink call centres
dated from January 1, 2016 (as advised by your team).
(Some Briefs may refer to the KPMG Serco Trial Report so this might be one of many
useful search terms.)
2. Any general correspondence (letters, emails) to the Minister or the department
from KPMG, Concentrix Services, Serco, DataCom Connect and Stellar Asia Pacific
that relate to the Serco trial or the decision to outsource Centrelink call centre
services (please exclude documents that relate to the official tender process).
Also please exclude the 'Serco Trial Report' in the request as an earlier request LEX
43923 noted it remains Cabinet classified.’
My decision
The department holds three documents that relate to your request.
I have decided to:
grant you
part access to one document (document 1) with some of the content
removed; and
refuse access to two documents (documents 2 and 3).
I have decided that certain parts of the documents that you have requested are exempt
under the FOI Act, including:
information that was brought into existence for the dominant purpose of briefing a
Minister on a document for consideration by Cabinet (section 34(1)(c) exemption);
information the disclosure of which would reveal a Cabinet deliberation or decision
the existence of which has not been officially disclosed (section 34(3) exemption);
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information the disclosure of which would have a substantial adverse effect on the
proper and efficient conduct of the operations of an agency, and would be contrary to
the public interest (section 47E(d) conditional exemption); and
personal information of other people, the disclosure of which would be contrary to the
public interest (section 47F(1) conditional exemption).
Please see the schedule at
Attachment A to this letter for a detailed list of the documents
and the reasons for my decision, including the relevant sections of the FOI Act.
How we will send your document to you
The document is being prepared for release and will be provided to you shortly.
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within the department, or an external
review by the Office of the Australian Information Commissioner. You do not have to pay for
reviews of decisions. See
Attachment B for more information about how to arrange a
review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Catherine
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
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Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE
DOYLE, Evelyn (Right to Know) - LEX 45021
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1.
1-
11
8 June
Question Time Brief QB17-
Release in part
47E(d)
Material the disclosure of which would have a substantial
2017
000082
adverse effect on the operations of the department
47F
exempt under s 47E(d)
Personal information exempt under s 47F
2.
Brief to Minister for Human
Exempt in full
34(3)
Material the disclosure of which would reveal a Cabinet
Services
deliberation or decision exempt under s 34(3)
3.
Brief to Minister for Human
Exempt in full
34(1)(c)
Cabinet document exempt under s 34(1)(c)
Services
PAGE 3 OF 13
If not delivered return to PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
‘1. All Ministerial Briefs relating to the decision to outsource Centrelink call centres
dated from January 1, 2016 (as advised by your team).
(Some Briefs may refer to the KPMG Serco Trial Report so this might be one of many
useful search terms.)
2. Any general correspondence (letters, emails) to the Minister or the department
from KPMG, Concentrix Services, Serco, DataCom Connect and Stellar Asia Pacific
that relate to the Serco trial or the decision to outsource Centrelink call centre
services (please exclude documents that relate to the official tender process).
Also please exclude the 'Serco Trial Report' in the request as an earlier request LEX
43923 noted it remains Cabinet classified.’
What I took into account
In reaching my decision I took into account:
your original request dated 7 June 2019;
the documents that fall within the scope of your request;
consultation with a third party about documents which contain information concerning
them;
consultation with other government agencies, including the Department of Prime
Minister and Cabinet (
DPMC);
the Cabinet Handbook issued by the DPMC, 12th edition;
the FOI Guidance Notes issued by the DPMC;
whether the release of material is in the public interest
consultations with departmental officers about:
o the nature of the documents;
o the department's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (
Guidelines); and
the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain documents and parts of documents that you requested are
exempt under the FOI Act. My findings of fact and reasons for deciding that the exemption
applies to those documents are discussed below.
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Section 34(1)(c) of the FOI Act – document for briefing a Minister on a Cabinet document
I have applied the exemption in section 34(1)(c) of the FOI Act to the whole of document 3.
Paragraph 5.55 of the Guidelines states:
‘The Cabinet exemption in s 34 of the FOI Act is designed to protect the
confidentiality of the Cabinet process and to ensure that the principle of collective
ministerial responsibility (fundamental to the Cabinet system) is not undermined. Like
the other exemptions in Division 2 of Part IV, this exemption is not subject to the
public interest test. The public interest is implicit in the purpose of the exemption
itself.’
Section 34(1) of the FOI Act provides that:
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i)
it has been submitted to the Cabinet for its consideration, or is
or was proposed by a Minister to be so submitted;
(ii)
it was brought into existence for the dominant purpose of
submission for consideration by the Cabinet;
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a
Minister on a document to which paragraph (a) applies; or
(d) it is a draft of a document to which (a), (b) or (c) applies.
Was document 4 brought into existence for the dominant purpose of briefing a Minister on a
document to which section 34(1)(a) applies?
The decision of the former Australian Information Commissioner in
Nick Xenophon and the
Department of Defence [2016] AICmr 14 makes clear that, when determining whether a
document falls within the exemption in section 34(1)(c) of the FOI Act, ‘the question of
dominant purpose will be a question of fact in each case’.
Document 4 is a ministerial briefing document prepared by the department for the purpose of
briefing the then Minister for Human Services, the Hon Michael Keenan MP. The brief relates
to the 2017 budget measure to increase Centrelink call capacity and the Centrelink Call
Centre Enhancements Initiative Evaluation Report prepared by KPMG (
KPMG report).
I have confirmed with DPMC that a brief pertaining to this budget measure was ultimately
submitted to Cabinet for its consideration.
I also note that your request acknowledges that the KPMG report, which you described as
the ‘Serco Trial Report’, remains subject to the Cabinet exemption as outlined in the
department’s previous FOI decision (LEX 43923).
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Department of Human Services
Conclusion
As document 4 was brought into existence for the dominant purpose of briefing the Minister
in relation to the KPMG report, to which the exemption in section 34(1)(a) of the FOI Act
applies in full, I am satisfied that document 4 is exempt in full, under section 34(1)(c) of the
FOI Act.
Section 34(3) of the FOI Act – material revealing a Cabinet deliberation or decision
I have applied the exemption in section 34(3) of the FOI Act to the whole of document 2.
Section 34(3) of the FOI Act provides that:
‘A document is an exempt document to the extent that it contains information the
disclosure of which would reveal a Cabinet deliberation or decision, unless the
existence of the deliberation or decision has been officially disclosed’.
Does the document reveal the existence of a Cabinet deliberation or decision?
Paragraph 5.65 of the Guidelines states that:
…if, at the time a report is brought into existence there was no purpose of submitting
it to Cabinet, but it is later decided to submit it to Cabinet, the report will not be
covered by s 34(1)(a) because it will not have been brought into existence for the
dominant purpose of submission to the Cabinet. It may, however, still be exempt
under s 34(3) if its disclosure would reveal a Cabinet deliberation or decision.
The DPMC’s FOI Guidance Notes state that:
A document may also canvass options or information in the context that they may
later be put to Cabinet for consideration or canvass views which a Minister may raise
in Cabinet for consideration. This is particularly relevant in the case where such
documents would allow a correct inference to be made about the content of later
Cabinet consideration. Where the document or information is closely related to
subsequent Cabinet consideration or a subsequent Cabinet decision on particular
issues, whether or not the document was eventually submitted to the Cabinet, it will
be relevant for the decision maker to consider if the release of the document or
information may reveal Cabinet deliberations within the meaning of section 34(3).
The fact that a Cabinet deliberation or decision occurred after a document was created does
not necessarily mean that the document cannot be exempt under section 34(3) of the FOI
Act. Rather, it is a question of fact at the time that the FOI request is made as to whether
disclosure of the document would reveal a Cabinet deliberation or decision.
Paragraph 5.75 of the Guidelines states that:
‘Deliberation’ in this context has been interpreted as active debate in Cabinet, or its
weighing up of alternatives, with a view to reaching a decision on a matter (but not
necessarily arriving at one). In
Re Toomer, Deputy President Forgie analysed earlier
consideration of ‘deliberation’ and concluded:
Taking its [Cabinet’s] deliberations first, this means that information that is in
documentary form and that discloses that Cabinet has considered or
discussed a matter, exchanged information about a matter or discussed
strategies. In short, its deliberations are its thinking processes, be they
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Department of Human Services
directed to gathering information, analysing information or discussing
strategies. They remain its deliberations whether or not a decision is reached.
[Cabinet’s] decisions are its conclusions as to the courses of action that it
adopts be they conclusions as to its final strategy on a matter or its
conclusions as to the manner in which a matter is to proceed.
As a result of consultation with the DPMC, I am satisfied that the disclosure of document 1
would reveal a Cabinet deliberation or decision.
Has the existence of the Cabinet deliberation or decision been officially disclosed?
The term ‘officially disclosed’ is not defined in the FOI Act. The Guidelines state at paragraph
5.78:
This can refer to disclosure by oral as well as written statement - for example, an oral
announcement by a minister about a Cabinet decision. The disclosure may be a
general public disclosure (for example, a statement in a consultation paper published
on a Departmental website) or a disclosure to a limited audience on the
understanding that it is not a confidential communication. The disclosure must be
‘official’ — for example, authorised by Cabinet or made by a person (such as a
minister) acting within the scope of their role or functions.
I acknowledge that the Serco pilot review has been a topic of media interest. On
23 April 2018, Minister Keenan issued a Media Release on the Serco pilot program, which
stated that:
An independent evaluation of the Serco pilot also found that staff were efficient and
were giving the department greater flexibility around peak demand periods.
On 26 November 2018, Minister Keenan provided this statement that was tabled in the
Senate:
The Government will continue to provide information to the public when it is
appropriate to do so. Future release of this report will take place in keeping with the
normal practices of the Government, following the completion of the appropriate
processes.
The Minister’s statement reaffirms that the relevant Cabinet deliberations or decisions have
not been officially disclosed by Cabinet or a person (such as a Minister) acting within the
scope of their role or functions.
At this time, I have no evidence before me to establish that there has been an official
disclosure, or official publication, of a deliberation or decision of Cabinet.
Section 34(6) of the FOI Act provides that, in a document to which section 34(3) applies,
information is not exempt if it consists of purely factual material unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
I am satisfied that any purely factual material that exists in document 2 cannot be reasonably
separated from deliberative matters, the release of which would reveal a Cabinet decision or
deliberation that has not been officially disclosed.
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Department of Human Services
I am satisfied that the other exceptions specified in sections 34(4) and 34(5) of the FOI Act
do not apply.
On the basis of the above, I am not satisfied that the existence of a decision or deliberation
of Cabinet, which would be revealed by the disclosure of document 2, has been officially
disclosed. Therefore, I have applied the exemption in section 34(3) of the FOI Act to the
whole of document 2.
Section 47E(d) of the FOI Act – material affecting operations of the department
I have applied the conditional exemption in section 47E(d) of the FOI Act to parts of
document 1.
Section 47E(d) of the FOI Act provides that:
‘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 proper and
efficient conduct of the operations of an agency.’
Would disclosure of the information have a substantial adverse effect on the operations of
the department?
Under paragraph 5.20 of the Guidelines, ‘a substantial adverse effect’ broadly means ‘an
adverse effect which is sufficiently serious or significant to cause concern to a properly
concerned reasonable person’.
Paragraph 6.123 of the Guidelines provides that ‘the predicted effect must bear upon the
agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its expected
activities in an expected manner’.
I am satisfied that the release of some material in document 1 could reasonably be expected
to prejudice the proper and efficient conduct of the department.
In particular, I consider there is a reasonable expectation that public disclosure of certain
material could interfere with the department’s conduct of its relationship the Australian
Taxation Office (
ATO). Furthermore, disclosure of the material could impact on the
department or the ATO’s ability to engage with external organisations in the future.
On this basis, I have decided that the release of the document would reasonably affect the
proper and efficient conduct of the operations of the department and it is therefore
conditionally exempt under section 47E(d) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.'
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure would:
promote the objects of the FOI Act; and
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Department of Human Services
inform debate on a matter of public importance.
I have also considered the relevant factors weighing against disclosure, indicating that
access would be contrary to the public interest. In particular, I have considered the extent to
which disclosure could reasonably be expected to:
prejudice the department’s working relationship with third parties and other
Commonwealth agencies.
Based on these factors, I have decided that in this instance, the public interest in disclosing
the information in the above-mentioned documents is outweighed by the public interest
against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Section 47F of the FOI Act - unreasonable disclosure of personal information
I have applied the conditional exemption in section 47F(1) to parts of document 1.
Section 47F of the FOI Act relevantly provides:
'(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).
(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.'
Personal Information
The term 'personal information' is defined as follows:
'...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.'
Paragraph 6.130 of the Guidelines provides:
'Personal information can include a person's name, address, telephone number, date
of birth, medical records, bank account details, taxation information and signature.'
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Department of Human Services
I find that document 1 contains personal information of other people. The personal
information is their mobile phone numbers. The decision in
Hunt and Australian Federal
Police [2013] AICmr 66 makes clear that mobile phone numbers are considered personal
information.
Whether disclosure is 'unreasonable'
In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.138 of the
Guidelines provides:
'The personal privacy exemption is designed to prevent the unreasonable invasion of
third parties' privacy. The test of 'unreasonableness' implies a need to balance the
public interest in disclosure of government-held information and the private interest in
the privacy of individuals.'
I am satisfied that the disclosure of the third party personal information would be
unreasonable for the following reasons:
it relates to aspects of an individual's personal affairs;
you do not have the consent from this individual for the release of their personal
information; and
the information is private and not available in full or in part from
publicly-accessible sources.
On this basis, I have decided that the personal information included in document 1, referred
to in the Schedule, is conditionally exempt under section 47F(1) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.'
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I
have considered the extent to which disclosure would promote the objects of the FOI Act.
I have also considered the relevant factors weighing against disclosure, indicating that
access would be contrary to the public interest. In particular, I have considered the extent to
which disclosure could reasonably be expected to:
prejudice an individual's right to privacy; and
adversely affect or harm the interests of an individual.
Based on these factors, I have decided that in this instance, the public interest in disclosing
the information in the above-mentioned document is outweighed by the public interest
against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
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Department of Human Services
Summary of my decision
In conclusion, I have decided to:
grant you part access to one document (document 1); and
refuse access to two documents (documents 2 and 3).
I have decided that:
document 1 is conditionally exempt, in part, under section 47E(d) of the FOI Act, and
disclosure would be contrary to the public interest;
document 1 is conditionally exempt, in part, undersection 47F(1) of the FOI Act, and
disclosure would be contrary to the public interest;
document 2 is exempt, in full, under section 34(3) of the FOI Act; and
document 3 is exempt, in full, under section 34(1)(c) of the FOI Act.
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Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of an FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still 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:
1. an Internal Review Officer in the Department of Human Services (
department);
and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal 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 will carry out the review. The Internal Review Officer will consider
all aspects of the original decision and decide whether it should change. An application for
internal review must be:
made in writing;
made within 30 days of receiving this letter; and
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill 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 decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30
days of applying, you can ask the Australian Information Commissioner for a review of the
original FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can
lodge your application:
PAGE 12 OF 13
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI
applicants to seek internal review before applying for external review by the Australian
Information Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available
at
www.oaic.gov.au.
If you have one, you should include with your application a copy of the Department of
Human Services' decision on your FOI request
Include your contact details
Set out your reasons for objecting to the department's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian 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 Australian Information
Commissioner must be made in writing. The Australian Information Commissioner's contact
details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth 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 Commonwealth Ombudsman may be
made in person, by telephone or in writing. The Commonwealth Ombudsman's contact
details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
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Department of Human Services