PO Box 7820 Canberra BC ACT 2610
20 February 2020
Our reference: LEX 50573
Mr Anatoly Kern
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Kern
Decision on your Freedom of Information Request
I refer to your request dated 21 January 2020, and received by the Department of Human
Services, now known as Services Australia, on the same date, for access under the
Freedom
of Information Act 1982 (
FOI Act) to the following documents:
1) Any document that the department relying on for denying to provide full names.
2) A copy of the staff directory of "Multicultural and Tailored Servers", managed by
NM Jan Bailey (title, position level, name, surname, office location)
Administrative release of documents
On 24 January 2020, Services Australia acknowledged your request and advised that where
appropriate, it would provide you with documents under its administrative access
arrangements. Services Australia has identified two publicly available documents relevant to
part one of your request.
I have released these documents to you through Services Australia’s administrative
arrangements (outside the FOI Act), and that portion of your request has been taken to be
withdrawn.
Paragraph 3 of an Operational Blueprint titled ‘Customer requests access to their personal
information 104-01010010’ is relevant to your request. A copy of this paragraph has been
released to you administratively. A copy of the full document is publicly available at the
following hyperlink:
http://operational.humanservices.gov.au/public/Pages/complaints-privacy-and-foi/104-
01010010-01.html. Clause H6 ‘Employee Identification’ of the
Department of Human Services Agreement 2011-
2014 (
Agreement) is relevant to your request. A copy of this paragraph has been released to
you administratively. A copy of the full document is publicly available at the following
hyperlink:
https://www.servicesaustralia.gov.au/sites/default/files/2017/11/dhs-agreement-2017-
2020.pdf.
PAGE 1 OF 12
My FOI decision
The agency holds one document (totalling 9 pages) that relates to the remainder of your
request.
I have decided to
refuse access to the document (document 1).
I have decided that the document is conditionally exempt under the FOI Act, as it contains:
information, the release of which would have a substantial adverse effect on the
management of personnel by Services Australia, the disclosure of which would be
contrary to the public interest (section 47E(c) conditional exemption); and
information, the release of which would have a substantial adverse effect on the
proper and efficient conduct of the operations of Services Australia, the disclosure of
which would be contrary to the public interest (section 47E(d) conditional exemption).
information the release of which would unreasonably disclose the personal
information about a person, and the disclosure of which would be contrary to the
public interest (section 47F(1)).
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 documents to you
The documents are attached.
You can ask for a review of our decision
If you disagree with any part of the FOI decision you can ask for a review. There are two
ways you can do this. You can ask for an internal review from within Services Australia, or an
external review by the Office of the Australian Information Commissioner. You do not have to
pay to apply 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@xxxxxxxxxxxxxxxxx.xxx.xx. Yours sincerely
Alex
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and FOI Branch | Legal Services Division
Services Australia
PAGE 2 OF 12
PO Box 7820 Canberra BC ACT 2610
Attachment A
SCHEDULE OF DOCUMENTS FOR RELEASE UNDER FOI
KERN, Anatoly (Right to Know) - LEX 50573
Doc
Pages
Date
Description
Decision
Exemption
Comments
No.
1.
1-
9
10 January
MTS staff data
Exempt in full
Section 47E(c)
Section 47E(c) conditional exemption applied to
2020
workbook
whole document (management of personnel).
Section 47E(d)
Section 47E(d) conditional exemption applied to staff
Section 47F(1)
names (proper and efficient conduct of the operations
of Services Australia).
Section 47F(1) conditional exemption applied to staff
names and site locations.
PAGE 3 OF 12
PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
1) Any document that the department relying on for denying to provide full names.
2) A copy of the staff directory of "Multicultural and Tailored Servers", managed by
NM Jan Bailey (title, position level, name, surname, office location)
What I took into account
In reaching my decision I took into account:
your original request dated 21 January 2020;
the document that falls within the scope of your request;
whether the release of material is in the public interest;
consultations with Services Australia officers about:
o the nature of the document;
o Services Australia's operating environment and functions;
guidelines issued by the Australian Information Commissioner under section 93A of
the FOI Act (the
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 the document that you requested is conditionally exempt in full under the
FOI Act. My findings of fact and reasons for deciding that the exemptions apply to that
document are discussed below.
Section 47E(c) – information affecting management of personnel
I have decided that document 1 is conditionally exempt from disclosure, in its entirety,
under section 47E(c) of the FOI Act.
Section 47E(c) of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency
PAGE 4 OF 12
Whether disclosure would or could reasonably be expected to have a substantial adverse
effect on the management or assessment of personnel by the Commonwealth
In addition to the factors specified in section 47E(c) of the FOI Act, paragraph 6.114 of the
Guidelines provides:
For this exemption to apply, the documents must relate to either:
the management of personnel – including the broader human resources
policies and activities, recruitment, promotion, compensation, discipline,
harassment and occupational health and safety;
the assessment of personnel – including the broader performance
management policies and activities concerning competency, in-house
training requirements, appraisals and underperformance, counselling,
feedback, assessment for bonus or eligibility for progression.
I find that the document contains information about staff operating in their capacity as
employees of the Commonwealth Government. I am satisfied that, in these particular
circumstances, disclosure of the information would be unreasonable as there is a realistic
likelihood that the information would allow you to locate and harass the identified individuals.
I have consulted with the Multicultural and Tailored Services (MTS) Branch. MTS advised
that you stated your intention was to gather and publish information that could identify staff,
including where they work and where they live. You have also indicated that this information
could be used to locate their children. On this basis, I am satisfied that there is a very real
risk of significant harm to MTS staff if I disclose this information to you.
Services Australia has obligations under sections 17, 18 and 19 of the
Work Health and
Safety Act 2011 (Cth) (WHS Act) to take reasonable steps to eliminate or minimise the risks
associated with customer aggression. In the modern technological environment, the release
of even minimal personal details (such as a full name or contact details) may allow members
of the public to use social media mediums to identify and target staff members for
harassment, bullying or intimidation.
I find that the circumstances and issues relating to the disclosure of staff details are
analogous to those arising in
NN and Department of Human Services (Freedom of
Information) [2018] AICmr 1. In that decision, the former Information Commissioner found
that release of staff information was conditionally exempt as it might reasonably be expected
to create a harassment risk for that staff member.
On this basis, I have decided that the document is conditionally exempt under section 47E(c)
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.
PAGE 5 OF 12
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:
harm the interests of the individuals identified in the document;
prejudice the protection of an individual’s right to privacy;
prejudice the management functions of Services Australia;
prejudice security, law enforcement, public health or public safety;
compromise the safety and wellbeing of staff; and
impact on the ability of Services Australia to comply with its industrial and
occupational health and safety obligations.
The release of the staff details would not inform debate on any matter or promote oversight
of public expenditure, and the material is not your personal information.
Based on these factors, I have decided that in this instance, the public interest in disclosing
the information in the document is outweighed by the public interest against disclosure.
I have not taken account of any of the irrelevant factors set out in section 11B of the FOI Act.
Section 47E(d) of the FOI Act – substantial adverse effect on the proper and efficient conduct
of an agency’s operations
I consider that document 1 is conditionally exempt, in part, under section 47E(d) of the FOI
Act.
Section 47E(d) of the FOI Act relevantly provides:
(1) A document is conditionally exempt if its disclosure under this Act would or could
reasonably be expected to, do any of the following:
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of the agency.
Substantial adverse effect on Services Australia’s operations
Releasing the names of staff would, or could reasonably be expected to, have an adverse
effect on the proper and efficient conduct of the operations of Services Australia, for the
following reasons:
Services Australia has a large number of customers, and manages a large volume of
contact from members of the public. Releasing the full name of a staff member to the
world-at-large could reasonably be expected to enable a member of the public to
directly contact that staff member and potentially increase the workload of that staff
member. Given your stated intention to make this information public, it is reasonable
PAGE 6 OF 12
to expect this may divert these staff from effectively and efficiently performing their
duties;
additionally, where contact is made to staff directly, rather than utilising the
established contact channels, this could reasonably be expected to create delays in
processing and managing requests, especially where requests need to be redirected
to other areas of Services Australia or where a staff member has moved roles; and
given the dedicated contact points currently available to customers and members of
the public, there may be confusion if other contact details became available. This
would thereby reduce the efficiency of Services Australia’s ability to allocate work and
direct customers to the most appropriate service area.
Additionally, clause H6.1 of the Agreement
states:
H6 EMPLOYEE IDENTIFICATION
H6.1 Employees will have a choice about whether they provide their full name or only
their first name in response to public enquiries, including in correspondence and face
to face contact, unless legislation requires otherwise.
The terms and conditions of employment contained in the Agreement including this clause
are given effect by the determination under section 24(3) of the
Public Service Act 1999
which the Minister Assisting the Prime Minister for the Public Service and Cabinet made on
30 January 2020.
Services Australia is not in a position to release the names of employees in response to FOI
requests because this information would be a breach of the terms governing the employment
of our staff. This could adversely affect the industrial reputation of Services Australia, open
Services Australia to industrial action, and have an adverse effect on Services Australia staff
relations and confidence.
For these above mentioned reasons, I consider staff details within the document to be
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.
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:
impede Services Australia’s operations, including in relation to managing staff and
industrial disputes which may arise; and
PAGE 7 OF 12
prejudice Services Australia’s ability to effectively and efficiently carry out its
functions.
Based on these factors, I have decided that in this instance, the public interest in disclosing
the conditionally exempt information in the 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.
Section 47F of the FOI Act - unreasonable disclosure of personal information
I have decided that document 1 is conditionally exempt from disclosure, in its entirety,
under section 47F(1) of the FOI Act.
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.'
I find that the document contains personal information of other people, namely staff working
in the MTS Branch.
PAGE 8 OF 12
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.'
Guideline 6.153 indicates that the starting presumption should be that disclosing public
servants personal information is not unreasonable unless special circumstances exist. Given
the statements, referred to above that you have previously made to the MTS Branch
regarding publishing staff details and locating their children I consider special circumstances
exist that make the release of these staff details unreasonable in this case.
I am satisfied that in addition to these special circumstances the disclosure of the third party
personal information would be unreasonable for the following reasons:
the document does not contain any of your personal information;
you do not have the consent of these individuals for the release of their personal
information;
the information is private and not available in full or in part from
publicly-accessible sources;
the identity of the individuals’ concerned is readily apparent; and
the individuals concerned have opposed the release of the information on the
grounds that it is of such a nature that disclosure may cause harm; in particular
they are concerned this information could be used to harass them and their
families.
On this basis, I have decided that the personal information included in the documents
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:
PAGE 9 OF 12
prejudice the individuals’ right to privacy;
prejudice the individuals’ families right to privacy;
adversely affect or harm the interests of an individual or group of individuals,
specifically the individuals listed in document; and
compromise the safety and wellbeing of staff.
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.
Summary of my decision
In conclusion, I have decided to refuse access to the document.
I have decided that the document is conditionally exempt in full, under section 47E(c) and
47F(1), and conditionally exempt in part, under section 47E(d) of the FOI Act. I have also
decided that disclosure would be contrary to the public interest for the purposes of section
11A(5).
PAGE 10 OF 12
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 a 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 Services Australia (the
agency); 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 Services Australia 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
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 agency 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 11 OF 12
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 Services
Australia decision on your FOI request
Include your contact details
Set out your reasons for objecting to the Services Australia'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
Services Australia 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
Services Australia 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.
PAGE 12 OF 12
