Attachment C – Statement of reasons – FOI21/030
This document, when read in conjunction with the schedule of documents at
Attachment B,
provides information about the reasons I have decided not to disclose certain material to you in
response to your request for documents under the
Freedom of Information Act 1982 (FOI Act).
Public interest conditional exemptions
Section 47F: Public interest conditional exemption—personal privacy
Section 47F(1) 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 (including a deceased
person). For the purposes of the FOI Act, personal information is defined as: information or an
opinion about an identified individual, or an individual who is reasonably identifiable whether the
information or opinion is true or not; and whether the information or opinion is recorded in a
material form or not.
I have identified the following personal information relating to private individuals in the relevant
documents for your request: names and contact information, including email addresses and
telephone numbers.
In deciding whether to conditional y exempt the personal information described above, I have had
regard to the following factors set out in section 47F(2) of the FOI
Act:
(a) the extent to which the information is wel known;
(b) whether the people to whom the information relates are 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 considers relevant.
My reasons for applying the section 47F(1) exemption to each of the categories of personal
information listed above are set out below.
In my view the relevant personal information is not wel known, nor are the persons concerned
general y known to be (or to have been) associated with the particular matters dealt with in the
documents. The information is known only to the persons whose information appears in the
documents and departmental officers with responsibility for the matters concerned.
I have examined publicly available sources of information and the information does not appear to be
reasonably publicly available. Noting that the FOI Act does not control or restrict any subsequent use
or dissemination of information disclosed, I consider that disclosure could reasonably be expected to
cause concern and distress to the persons concerned.
For the reasons set out above, I have decided to exempt the personal information of individuals
pursuant to section 47F(1) of the FOI Act. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in this regard
under the header ‘
Section 11A(5): Public interest test’.
Freedom of Information request FOI21/030 – Statement of reasons
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Section 11A(5): Public interest test
Access to a conditional y exempt document must general y be given unless doing so would be
contrary to the public interest. The Guidelines issued by the OAIC provide at paragraph 6.5 that the
public interest test is considered to be:
•
something that is of serious concern or benefit to the public, not merely of individual interest,
•
not something of interest to the public, but in the interest of the public,
•
not a static concept, where it lies in a particular matter wil often depend on a balancing of
interests,
•
necessarily broad and non-specific, and
•
related to matters of common concern or relevance to all members of the public, or a
substantial section of the public.
In deciding whether to disclose conditionally exempt material, I have considered the factors
favouring access set out in section 11B(3) of the FOI Act. I have not taken into account the irrelevant
factors listed under section 11B(4) of the FOI Act.
The FOI Act does not list any specific factors weighing against disclosure. However, I have considered
the non-exhaustive list of factors against disclosure in the Guidelines as well as the particular
circumstances relevant to the conditional y exempt material.
I consider the release of the conditionally exempt material could reasonably be expected to
prejudice the protection of an individual’s right to privacy. In my view, disclosure of the names or
contact details will not increase transparency or give any insight into the roles or responsibilities of
the junior officers. As discussed above, the officers are not well known or known or known to the
public more generally. While there may be a public interest in the disclosure of the substantive
information in the documents, the disclosure of the names of junior staff officers and their contact
details will not add any value or benefit to public debate or to the ability of the public to scrutinise
the operations of the department.
In considering the public interest test, I have also turned my mind to the Administrative Appeals
Tribunal decision in
Warren1. In that matter, Deputy President (DP) Forgie considered the disclosure
of personal information of public servants in the context of programmes subject to significant public
criticism and scrutiny. Relevantly, DP Forgie stated at paragraph 135 that:
It is contrary to the public interest to expose individuals in that environment to public
criticism and attack of the sort directed against the Programme when disclosure of the
documents wil give no insight into the role or responsibility that they had in the formulation
of, or policy behind, the Programme as opposed to simply implementing the decisions of
others.
In this case, the authorisation for the tweet was given by a departmental officer approving the
promotion of a media release which was already published on the Attorney-General's website, as
part of a standard process. The media release promoted by the tweet was reviewed and deemed by
the department (EL2 and relevant SES) to fit within the relevant guidance for publishing ministerial
content to agency-funded websites, including the Attorney-General’s website. This guidance is
issued and maintained by the Digital Transformation Agency (DTA). This is the guidance fol owed by
all departments and agencies across the APS and includes the following direction:
1
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 (9 November
2020)
Freedom of Information request FOI21/030 – Statement of reasons
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Agency-funded sites must not contain material of a party political nature, although individual
judgement wil be required. For example, a minister’s explanation and defence of
government policy might draw distinctions between government and opposition policies.
Such material may be placed on a ministerial site funded by an agency. However, material
that relates solely to party political issues or that could be categorised as ‘how to vote’
material may not be placed on an agency-funded site.
Under the
Work Health and Safety Act 2011, the Commonwealth has a primary duty of care to
ensure, as far as is reasonably practicable, the health and safety of workers by maintaining safe work
practices. I am of the view that the disclosure of personal information of junior officers in this
instance may pose a risk to the work health and safety of these workers. This is because I would not
be able to take reasonable steps (including by not publishing names and contact details of junior
officers) to protect them from unsolicited contact which may be harassing, intimidating and
threatening in nature. This is particularly so in the current digital age, where information can be
disseminated easily and quickly.
On balance, I consider the factors against disclosure outweigh the factors favouring access and that
providing access to the conditionally exempt material identified for your request would be contrary
to the public interest.
Freedom of Information request FOI21/030 – Statement of reasons
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