2020 0069 Notice of decision.pdf

FOI ref: 2020/0069


28 August 2020

Mr John Smith
By Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Smith,

Notice of Decision for Freedom of Information Request no. 2020/0069

The purpose of this letter is to give you a decision about access to documents that you
have requested under the Freedom of Information Act 1982 (FOI Act).
Summary
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
You lodged an FOI request on 30 June 2020 for access to:
I seek the following documents under FOI;
Email chains between Marianne Evans, A/g Assistant Director of Procurement &
Contracts; and Launch recruitment.
The specific email chains I am looking for, are any email chains between Marianne and
Launch recruitment, in which pay rates that Launch proposed to apply to its labour hire
employees were reviewed and approved by Marianne.
The email chain I am looking for is specific. Please exclude all emails that are not
between Marianne and Launch for the purposes of this FOI.
If and only if such an email chain cannot be located, please include deleted or archived
emails within the scope of this request.
On 30 July 2020, I wrote to you advising that the period to process your request was
extended by 30 days to allow for consultation with a third party and the due date was
revised to 31 August 2020 accordingly.
Search for documents
I have interpreted your request as a request for specific emails chains between
Marianne Evans and Launch Recruitment Pty Ltd (Launch Recruitment) whereby
Marianne Evans reviewed and approved pay rates for labour hire employees proposed
by Launch Recruitment.
Level 6, 83 Clarence Street
T: 02 9276 5000 or 1800 228 333
National Relay Service
SYDNEY NSW 2000
F: 02 9276 5599
www.relayservice.gov.au
GPO Box 9955 Sydney NSW 2001
E: xxx@xxx.xxx.xx

ABN 90 680 970 626
www.aat.gov.au

I have liaised with Ms Evans to identify any documents that fall within the scope of your
request. A search was conducted of her inbox, including sent and deleted items.
As a result, I have identified two email chains which fall within the scope of your request:
1.  Document 1 – Email chain between Ms Evans and Launch Recruitment between
the dates 18 November to 19 November 2019
2.  Document 2 – Email chain between Ms Evans and Launch Recruitment between
the dates 20 November to 21 November 2019
Decision
I have decided to grant partial access to Documents 1 and 2.
In making my decision, I have taken the following into account:
•  the content of the documents that fall within the scope of your request;
•  the FOI Act, specifically sections 11A, 22, 47E(d), 47F and 47G;
•  the guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (FOI Guidelines); and
•  the views of a third party consulted by the AAT under s 27 of the FOI Act.
Reasons for my decision
Section 47E(d) of the FOI Act – Operations of agencies

Section 47E(d) of the FOI Act provides that a document is conditionally exempt where
its disclosure could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of agency operations.

I have decided that the release of internal AAT contact details within these documents
would affect the proper and efficient conduct of the agency’s operations in a substantial
way. This is because the Tribunal has systems and contact details in place for the
efficient handling of contact from the public. Were members of the public to use other
channels, such as the direct email addresses or phone numbers of officers that may be
unchecked, their correspondence would not be handled in a timely manner. Certain
reviews handled by the Tribunal are subject to strict time frames and any delay may
compromise the rights of an applicant. For this reason, the contact details in the
documents are conditionally exempt under section 47E(d).

Public interest test – Section 11A(5) of the FOI Act

Having found that the information is conditionally exempt, I have considered whether
access to the information would, on balance, be contrary to the public interest.
A relevant public interest factor I have considered which favours disclosure is the
promotion of the objects of the FOI Act, through facilitating and promoting public access
to information held by Government.

A relevant factor against disclosure is that individuals who use the incorrect contact
details for lodgement or inquiries with the Tribunal, will experience delays in receiving a
response, which can be critical to the exercise of their review rights. The need for public
information to identify the most efficient contact channels outweighs the public interest in
this case. I am therefore satisfied that the material is conditionally exempt under section
47E(d) of the FOI Act.

Section 47F of the FOI Act – Personal privacy

Documents 1 and 2 contain the personal mobile number of a Launch Recruitment
employee. Section 47F of the FOI Act provides that a document is conditionally exempt
if its disclosure would involve the unreasonable disclosure of personal information about
any person.

In determining whether the disclosure of the document would be unreasonable, I have
had regard to the following matters:

•  the extent to which the information is well known;
•  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;
•  the availability of the information from publicly accessible sources;
•  any other relevant matters.

I have decided to refuse access to this information as the information is not well known
or publicly available. The individual who owns this information would have a reasonable
expectation that their right to personal privacy would be respected and that their
personal information would not be disseminated to third parties.

Considering the nature of the information and the fact that the information was to be
used for a limited purpose, I am satisfied that the information is conditionally exempt
under section 47F of the FOI Act.

Public interest test – Section 11A(5) of the FOI Act

As the information is conditionally exempt, I have considered whether access to the
information would, on balance, be contrary to the public interest.

A relevant public interest factor I have considered which favours disclosure is the
promotion of the objects of the FOI Act, through facilitating and promoting public access
to information held by Government. A relevant factor against disclosure is that releasing
the information would prejudice the individual’s right to privacy.

On balance, I consider that the benefits of protecting the individual’s privacy must be
given greater weight, particularly in circumstances where the personal information does
not appear to be publicly available. I therefore find that disclosure of the information
would be contrary to the public interest under section 11A (5) of the FOI Act.

Section 47G – Business affairs

Section 47G conditionally exempts documents where disclosure would disclose
information concerning a person in respect of his or her business or professional affairs,
or concerning the business, commercial or financial affairs of an organisation or
undertaking (business information), where the disclosure of the information:

•  would, or could reasonably be expected to, unreasonably affect the person
adversely in respect of his or her lawful business or professional affairs or that
organisation or undertaking in respect of its lawful business, commercial or
financial affairs (s 47G(1)(a)).

I have reviewed Documents 1 and 2 and find that they contain information about the
business, commercial and financial affairs of Launch Recruitment. This information, if
disclosed, would unreasonably reveal the conduct of the business affairs of Launch
Recruitment, including any previous or current contractual arrangements with their
employees.

Specifically, I find that there is information contained in the email correspondence which
discloses information which is not generally know to its competitors or other external
parties, including:

•  direct contact details of Launch Recruitment employees
•  information concerning the administration and human resources management of
Launch Recruitment
•  information about the operation of the business
•  information regarding the status of certain employees, their contractual
arrangements with the company and their salaries.

I find that this information, if disclosed, could adversely affect the company and its
associated personnel in respect of their lawful business affairs. The disclosure of the
documents would, or could reasonably be expected to, cause serious financial and
reputational damage to the business.

Furthermore, section 47G(1)(b) of the FOI Act provides that a document is conditionally
exempt if it could reasonably be expected to prejudice the future supply of information to
an agency for the purpose of the administration of a law of the Commonwealth or the
administration of matters administered by an agency.

In this case, the business information contained in these email chains was collected for
the purposes of discussions and deliberations relating to contractual agreements that
the business has with the AAT. They relate to Launch Recruitment’s issue of contracts
to its employees providing services to the AAT. The disclosure of this information to third
parties under the FOI Act may inhibit the future supply of business information to the
AAT, and could discourage employees from seeking to be considered for provision of
services to the AAT. It would also inhibit frank discussions needed when discussing
employment contracts between the AAT and its service providers.

I am satisfied that the release of this information is conditionally exempt under sections
47G(1)(a) and 47G(1)(b) of the FOI Act.

Public interest test – Section 11A(5) of the FOI Act

Having found that the information is conditionally exempt under section 47G of the FOI
Act, I must then consider whether access to the information would, on balance, be
contrary to the public interest.

A relevant public interest factor I have considered which favours disclosure is the
promotion of the objects of the FOI Act, through facilitating and promoting public access
to information held by government, including the release of information which would
inform debate on a matter of public importance.

A relevant factor against disclosure is the protection of businesses who have or have
expressed interest in contractual engagements with the AAT and who provide services
in the management of AAT personnel. I consider that, since this information is not widely
available, the individuals and entities who own the information would have a reasonable
expectation that their business affairs would be respected, and personal and
organizational business information would not be disseminated to the public.

An additional factor which I have taken into consideration is the fact that the FOI Act
does not control or restrict any subsequent use or dissemination of information released
under the FOI Act. The potential for information to be made public under the FOI Act
that would not generally be made public may deter individuals from entering supplier
arrangements with the AAT.

I consider that, at the present time, any benefit to the public in disclosing the information
is outweighed by the benefit of protecting the business’ lawful and professional affairs in
this instance. I therefore find that, on balance, disclosure of the information is contrary to
the public interest and the information is exempt under section 47G(1)(a) and 47G(1)(b)
of the FOI Act.

Edited copies of the documents have been released to you with exempt information
referred to above redacted pursuant to section 22 of the FOI Act.

Deferment of access – consultation with third parties

During the processing of your FOI request, we undertook third party consultation with
persons potentially affected by the release of the documents. That third party provided
submissions against disclosing certain documents to you which we have taken into
consideration.

However, as I have decided to grant partial access to the documents, under section
27A(6) of the FOI Act, we must not give access to the documents unless, after all
opportunities for review run out, the FOI decision to give access still stands or is
confirmed. Generally, the third party has 30 days from notification of my FOI decision to
seek a review of my decision. If they do not seek review, we will provide you with the
documents pursuant to section 27A(6) of the FOI Act.

Your review rights

Information about how you can apply for a review of this decision or complain about how
we have dealt with this matter is set out in the attached fact sheet, FOI 2.

If you have any questions about this decision, please contact me at xxx@xxx.xxx.xx.

Yours sincerely,

Skye M
Authorised FOI Officer (APS 6)
Attachments
FOI 2 – Information about reviews and complaints under the Freedom of Information Act

Information about reviews and complaints under the
Freedom of Information Act
What should I do prior to applying for internal review or contacting the
Office of the Australian Information Commissioner?
Before you apply for an internal review or contact the Office of the Australian Information
Commissioner, we recommend that you telephone the officer who made the FOI
decision. It is often possible to resolve concerns or answer your questions using this
approach and, if not, the officer will be able to assist you in applying for review.
How do I apply for internal review to the AAT?
You can apply to us for an internal review of the FOI decision. The application for
internal review must be made within 30 days or such further period as we allow, after the
day the decision is notified to you. To apply for an internal review you must do so in
writing. You may also wish to explain why you are not satisfied with the decision. A
different and more senior officer authorised under the Freedom of Information Act 1982
(the FOI Act) will conduct the internal review and make a new decision within 30 days
after receipt of your application.
If you have already applied for internal review and want to seek a further review of that
decision, you will need to apply to the Australian Information Commissioner.
How do I apply for review to the Australian Information Commissioner?
You may also apply directly to the Australian Information Commissioner for review of the
FOI decision. The application for review must be made within 60 days after the day
notice of the decision was given. An application for review must be in writing, include
details of how notices in relation to the review are to be sent to you and include a copy
of the decision. You may also wish to explain why you are not satisfied with the decision.
An online application form is available on the Office of the Australian Information
Commissioner’s website, details of which are provided below.
What if I want to make a complaint about the handling of a Freedom of
Information request?
If you have a complaint about the way in which we have processed your request for
access under the FOI Act you can ask the Australian Information Commissioner to
investigate. An online complaint form is available on the Office of the Australian
Information Commissioner’s website, details of which are provided below.
Where can I find further information or contact details for the Office of the
Australian Information Commissioner?
Further information is available on the Office of the Australian Information
Commissioner’s website at www.oaic.gov.au and you can contact the office on 1300 363
992 or by email at xxxxxxxxx@xxxx.xxx.xx..
FOI 2 (July 2016)