11 March 2022
Mr John Simpson
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Simpson
DECISION – FOI REQUEST REF. NO. 202122-025 – CORRESPONDENCE RE STAFF BUYOUTS
I refer to your email sent on Tuesday 19 October 2021 requesting access under the
Freedom of Information Act 1982 (the
FOI Act) to:
All correspondence between David Anderson and Monica Vagg that relates to the
review of staff buyouts dated between 1 June 2021 and 14 October 2021.
On Wednesday 17 November 2021, we notified you by email that the timeframe for
processing your request was extended for the purposes of consultation under s 27 of
the FOI Act. On Wednesday 15 December 2021 my FOI Advisor sought your agreement
for an extension of time for processing this request, under s 15AA of the FOI Act. We
did not receive a response from you. Accordingly, a decision on your request was
due on Monday 20 December 2021.
On 24 December 2021, we notified you by email that the request concerned a large
number of pages and required more time to complete consultation when
stakeholders were available. We again sought your agreement to an extension under
s 15AA of the FOI Act such that the decision would be due on Friday 28 January 2022.
To date, we have not received contact from you since your initial request of 19
October 2021.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests, under s 23 of the FOI Act.
Decision
I have identified 15 documents that answer the scope of your request –
Documents 1
to 15. These documents are described in
Schedule 1, attached.
I have granted access to
Documents 9, 12 and 13 in full.
I have granted access to
Documents 1, 2, 3, 5, 6, 7, 8 and 10 in part.
I have refused access to
Documents 4, 11, 14 and 15.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
Material taken into account
In making my decision I have considered:
the scope of your request
the content of the documents requested
the FOI Act
the guidelines issued by the Office of the Australian Information
Commissioner under s 93A of the FOI Act (
the Guidelines)
relevant case law
consultation undertaken with third parties.
Locating and identifying documents
The search for documents included approaching our People and Culture team
(including Monica Vagg) and the Managing Director’s office.
I consider that all reasonable steps were taken to identify and locate all relevant
documents that answer your request. I am satisfied that the searches conducted
were thorough and all reasonable steps have been taken to locate the documents
relevant to your request.
Locating and identifying documents
In order to make the processing of your request more manageable, I also excluded
exact duplicates, that is discrete parts of email chains that are included in other,
longer email chains, or attachments which are replicated in another document. I
have made a decision on one copy of each document that is relevant to your request.
Reasons for decision
Third Party Consultation
The ABC consulted with the MEAA however they did not respond to make
submissions.
I have previously consulted with PwC regarding commercially valuable information
related to the buyout review, and have taken their submissions received about other
similar documents into consideration with regard to
Document 14 which includes
some annexures prepared by PwC.
s 47(1)(b) – commercially valuable – unconditional exemption
Section 47(1)(b) provides that a document is an exempt document if its disclosure
under the FOI Act would disclose information having a commercial value that would
be, or could reasonably be expected to be, destroyed or diminished if the
information were disclosed.
To be exempt under s 47(1)(b) a document must satisfy two criteria:
must contain information that has a commercial value either to an agency or
to another person or body; and
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the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed.
The Guidelines, at paragraph 5.205, provide that it is a question of fact whether
information has commercial value, and whether disclosure would destroy or
diminish that value, and can include information relating to the profitability or
viability of a continuing business operation or commercial activity in which an
agency or person is involved.
Information does not necessarily require ‘exchange’ value in order for it to be
commercially valuable. However, the information must have some inherent value to
an organisation that can properly be characterised as commercial in character.
The parts of
Document 14 over which an exemption is being claimed under s 47(1)(b)
contains information which has commercial value to PricewaterhouseCoopers (
PwC)
and the ABC. PwC is a private firm providing audit, assurance, consulting and tax
services to companies and public sector entities. PwC competed for that work,
including the buyout review, in a highly competitive market environment.
Document 14 contains various matters including details of the methodology used by
PwC in undertaking the review as part of its role as consultant to the ABC. If made
available to competitors, the information would lose its value as a way to gain a
market advantage or competitive edge. A competitor could substantially replicate
the business model or particular product offering, diminishing the value of PwC’s
product as embodied in these documents.
The information redacted under s 47 is clearly commercially valuable to PwC as
supplier, and the ABC as receiver of PwC’s services. The information could be
diminished if it became available to competitors of either PwC or the ABC. I find that
the commercial value in that information would be, or is reasonably be expected to
be, destroyed or diminished if it were disclosed under FOI.
I have therefore found that part of
Document 14 is unconditionally exempt as they
contain commercially valuable information.
Document 14 contains information that I have also found is conditionally exempt
under ss 47E(c) and 47G.
47C – Deliberative Processes – conditionally exempt
I have found that parts of
Documents 4 and
14 are conditionally exempt under
section 47C of the FOI Act. In my view, disclosure of the parts of the documents under
FOI would disclose matter in the nature of, or relating to, opinions, advice or
recommendations obtained, or consultation or deliberation that has taken place for
the purposes of the deliberative processes involved in the functions of the ABC.
Section 6.58 of the Guidelines describes a ‘deliberative process’ as an action which:
...involves the exercise of judgement in developing and making a selection from
different options: ‘The action of deliberating, in common understanding, involves the
weighing up or evaluation of competing arguments or considerations that may have a
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bearing upon one’s course of action. In short, the deliberative process involved in the
functions of an agency are its thinking processes—the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.’1
Documents 4 and
14 include commentary around the deliberative process. The
information is not operational or purely factual, but rather reflects the steps
involved in making decisions relating to this matter within the ABC.
I note that the deliberative processes exemption does not require a specific harm to
result from disclosure. Rather, the relevant consideration is whether the document
includes content of a specific type, namely deliberative matter. I am satisfied that
parts of the documents contain deliberative matter, and is therefore conditionally
exempt from disclosure in relation to that matter under section 47C of the FOI Act.
I also note the FOI Act requires that access must generally be given to a conditionally
exempt document unless (in the circumstances) access to the document at the time
would, on balance, be contrary to the public interest.
In considering whether, on balance, it is in the public interest to release the
conditionally exempt portions of these documents, I have considered:
Relevant factors in favour of releasing the documents
include
:
• enhance the scrutiny of government decision making;
• promote the objects of the FOI Act.
Relevant factors against releasing the documents include
:
• could reasonably be expected to prejudice an agency's ability to document the early
stages of a briefing paper
• could reasonably be expected to prejudice an agency's ability to document and
consider recommendations and options with decision-makers.
I find that information concerning members of the leadership team’s functions in
considering and making decisions about the buyout review is conditionally exempt
under s 47C. Examples include advice, analysis, recommendations and opinions from
staff and PwC.
A free exchange between leadership team members is a key ingredient in ensuring
the ABC’s deliberative processes operate effectively. The relevant ‘deliberative
process’ these documents relate to, concerns the methodology and resolution of an
underpayment of entitlements to a group of ABC employees.
Relevant case law includes:
1 See Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See British American Tobacco
Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19, [15]–[22]. See also
Carver and Fair Work Ombudsman [2011] AICmr 5 in relation to code of conduct investigations
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a. In
‘LK’ and Department of the Treasury2 the Information Commissioner found
that information constituting consultation and advisory processes within
government to the Foreign Investment and Review Board (to assist the
Foreign Investment and Review Board to discharge their functions in making
decisions on foreign investment proposals) was deliberative matter. Other
information this exemption applied to was records of consultation (as well
as advice, recommendations and opinions).
b.
Foundation for Alcohol and Research Education and Department of Health
where it was determined that information containing opinions and
recommendations of Departmental staff in relation to potential funding of a
program, constituted deliberative matter conditionally exempt under s 47C.3
I have decided, on balance, it is not in the public interest to release the conditionally
exempt information about deliberative processes of the ABC under FOI found in
Documents 4 and
14. I have also refused access to Document 4 on the basis it is
conditionally exempt under ss 47E(c) and 47G.
s 47E(c) – management of personnel - conditional exemption
Section 47E(c) of the FOI Act conditionally exempts documents containing
information the disclosure of which would, or could reasonably be expected to, have
a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency.
Paragraph 6.114 of the Guidelines provides that for section 47E(c) to apply, the
documents must relate to the management of personnel – which is defined to
include the broader human resources policies and activities, recruitment, promotion,
compensation, discipline, harassment and occupational health and safety. The main
object of work health and safety legislation is to protect workers and other persons
against harm to their health, safety and welfare through elimination or minimisation
of risks arising from work.
The parts of the documents, over which an exemption is being claimed under s 47E(c)
contain information which, if released, would have both a substantial and adverse
effect following disclosure on the ability of the ABC to manage its employees
effectively and efficiently. ABC staff have a reasonable expectation that the specific
details of the review process will be kept confidential, in the same way that other
entitlements and employment information is kept confidential between employer
and employee.
A number of documents contain specific personal information of staff, including
summary tables of their entitlements. I consider disclosure of these documents
would be inconsistent with staff’s expectations of the manner in which employment
records are held and maintained by the ABC (in consideration of contractual
arrangements and the
Privacy Act (Cth) 1988). Failing to manage those documents
2 (Freedom of Information) [2017] AICmr 47
3 [2015] AICmr 38, [14].
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and confidential information consistent with staff expectations would, in my view,
undermine the ABC’s ability to effectively manage those staff by eroding the
relationship of trust between the ABC and its staff. Employees would not reasonably
expect this information would be shared publicly.
Documents over which exemption under s 47E(c) is claimed also contain human
resources information of a sensitive nature that is critical to the review being carried
out. Disclosure of information in these documents would publicly reveal how the
review process would or could affect individual staff members. The FOI Act places no
limit on the dissemination of the information once it is released under FOI. The ABC
has a duty of care to protect the wellbeing of its staff, and disclosure of information
in these documents in this context could result in a loss of trust by employees in the
ability of the ABC to protect their interests and wellbeing. I find such effects to be
both adverse and substantial on the operations of the ABC if there was premature
disclosure of incomplete review information.
The public interest
Conditionally exempt material must be released unless, in the circumstances, access
at this time would, on balance, be contrary to the public interest (section 11A(5) of
the FOI Act).
I have considered the factors favouring access in s 11B(3) of the FOI Act. In balancing
the public interest in this case, I have considered the following relevant factors.
Factors in favour of disclosure
I have considered the following factors in favour of disclosure:
a) promoting the objects of the Act, particularly in increasing scrutiny,
discussion, comment and review of the Government's activities (s 3(2)(b) of
the FOI Act)
b) informing debate on a matter of public importance, namely compensation of
Commonwealth employees, and
c) facilitating access to information to members of the public that allows them
to be satisfied that proper processes have been followed by the agency.
Factors against disclosure
I have considered the following factors against disclosure:
a) protecting individuals from unreasonable interferences with their privacy
b) protecting staff from occupational health and safety risks, and
c) preserving reasonably held expectations of confidentiality and trust between
employees and the ABC.
In this case, I have formed the view that disclosure of the information will make a
limited contribution to those factors that favour disclosure. However, the factors
against disclosure are, in my view, significant. Disclosure of the information will do
little to further inform public debate or increase scrutiny of government affairs
(
Warren; Chief Executive Officer, Services Australia and (Freedom of information)
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[2020] AATA 4557 at [136]). Individual entitlements, in my view, should not be shared
under FOI without that employee’s express consent. Further, I find the public interest
in protecting individuals from unreasonable interferences with their privacy and the
obligation of the ABC to look after the wellbeing of its employees, and maintain
privacy over their employee entitlements, outweighs any public interest in the
disclosure of the information.
Accordingly, I have concluded that disclosure would, on balance, be contrary to the
public interest and refuse access to
Documents 1, 2, 3, 4, 5, 6, 8, 10, 11, 14 and 15,
either in part or in full, Schedule 1 refers. I am satisfied that granting access to the
conditionally exempt information in these documents would, under s 47E(c) of the
FOI Act, on balance, be contrary to the public interest.
s 47F – Personal Privacy – conditionally exempt
The Guidelines at paragraph 6.120 define personal information as including
“
information about an identified individual or an individual who is reasonably
identifiable” which I take to include a person’s name, and other identifying
information.
Section 47F of the FOI Act has been applied in circumstances where I have decided
disclosure includes information about an identified individual.
The Guidelines, at paragraph 6.138, articulate that 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.
In determining whether disclosure would involve an unreasonable disclosure of
personal information I have had consideration of the following factors:
the nature of the information
the circumstances in which the information was obtained
the likelihood of the information being information that the person concerned
would not wish to have disclosed without consent
extent to which the information is well known
whether the information has any current relevance.
The parts of the documents over which a s 47F exemption is being claimed include
third party information (including that of ABC staff) which are private and those staff
hold a reasonable expectation that this information would not be disclosed under
FOI. That information is ranges from mobile numbers to employment entitlements
and conditions which should be kept confidential by ABC as an employer of staff. This
information, while relevant to the review process being undertaken, is otherwise of
little relevance in promoting public understanding of the ABC’s response to the
buyout review. In particular, it is specific to those individuals rather than speaking to
the ABC’s overall position in relation to, and response to, the buyout review.
Considering the volume of information which I have decided to release relevant to
assisting the public to understand the ABC’s general position and approach, I do not
consider there to be additional public benefit in disclosing the specific personal
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information of individual staff members, such as their individual entitlements.
Accordingly, I find its disclosure would be unreasonable, and this information is
conditionally exempt.
I have also exempted identifying information about staff of third parties (eg. the
MEAA) on a similar basis, having regard to the nature of the duties performed by
those third parties and the absence of their consent to release their details.
I am satisfied that granting access to the conditionally exempt material in
Documents 1, 2, 3, 5, 8, 11, 14 and 15 would, on balance, be contrary to the public
interest.
s 47G – Business Affairs – conditional exemption
Section 47G of the FOI Act conditionally exempts documents where disclosure would
disclose information concerning the business, commercial or financial affairs of the
ABC or a third party business and where disclosure of that information would, or
could reasonably be expected to, unreasonably affect the ABC or that third party
business in respect of its lawful business, commercial, or financial affairs.
The term ‘business affairs’ has been interpreted to mean ‘the totality of the money-
making affairs of an organisation or undertaking as distinct from its private or
internal affairs’ (Re
Mangan and The Treasury [2005] AATA 898, citing
Cockcroft and
Attorney-General’s Department and Australian Iron and Steel Pty Ltd (party joined)
(1985) 12 ALD 462).
In this case, I have explained above why certain information about the services
provided by PwC is unconditionally exempt under s 47(1)(b) FOI Act. In the event that
s 47(1)(b) did not apply, I would, for the same reasons, have applied s 47G to exempt
that information in
Document 14.
In addition, certain information concerning the ABC’s commercial operations
(particularly in relation to engagement of staff) is revealed in some of the
documents. Certain specific information about individual employees would, if
revealed, provide a substantial insight into particular terms of engagement with
staff. The ABC competes with other media services providers for talent in a
competitive employment market. Other media companies may derive a significant
advantage in seeing the precise terms on which the ABC engages certain categories
of staff, in order to improve their own employment terms relative to the ABC and
thereby attract (or ‘poach’) staff. This would have a serious adverse effect on the
ABC’s conduct of its business, and in my view would be unreasonable in
circumstances where most media outlets with whom the ABC competes are not
subject to the FOI Act.
Further the ABC is undertaking a review that impacts both its business and financial
affairs. This review could unreasonably be adversely affected if estimates and
briefings are shared prematurely.
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The public interest test
Section 11A(5) of the FOI Act requires the ABC to provide access to a conditionally
exempt document unless, in the circumstances, access to that document at that
time would, on balance, be contrary to the public interest.
I have had regard to the factors set out in s 11B of the FOI Act which favour
disclosure, specifically, whether disclosure would promote the objects of the FOI
Act, inform debate on a matter of public importance or promote effective oversight
of public expenditure. I accept there is some public interest in accountability
concerning the ABC’s staffing practices, although in this case the value of disclosing
the documents in issue must be assessed against information already available to
the public on this issue.
The FOI Act does not list any factors against disclosure, however a non-exhaustive
list of factors against disclosure is provided by paragraph 6.22 of the Guidelines. In
my view, the public interest in disclosure is outweighed by the following relevant
factors against disclosure:
the public interest in avoiding prejudice to the management function of the
ABC, as that prejudice could affect the proper and efficient conduct of ABC
operations and ultimately the quality of service that the ABC can provide to
the public
the public interest in avoiding unfair prejudice to the competitive commercial
activities of a third party, namely PwC
the public interest in upholding reasonably held expectations of privacy and
confidentiality, in this case those held by ABC staff regarding the details of
their entitlements, conditions and terms of employment.
I am satisfied that granting access to the conditionally exempt material in the
Documents 2, 4, 8, 10, 11 and 14 would, on balance, be contrary to the public interest.
Section 22 – Irrelevant information
The FOI Act, and the Guidelines, provide that an agency may provide access to edited
versions of documents by deleting irrelevant information that would reasonably be
regarded as irrelevant to the request, or where an agency refuses access to an
exempt document. I am satisfied that the material deleted under s 22 is irrelevant to
the scope of the request, or exempt from disclosure. Accordingly, I have deleted
these parts under s 22(1) of the FOI Act and prepared an edited copy for you, where
access was granted, as it was reasonably practical to do so.
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Review rights
Your review rights are set out in
Annexure A.
Yours sincerely
Pamela Longstaff
Head of Corporate Governance & FOI Decision Maker
xxx.xxx@xxx.xxx.xx
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Schedule 1
Document Schedule - FOI 202122-025
No.
Date
Description
Page/s Access
Exemption Section/s
Grant
Decision
1
18 May –
Email chain with annexure 1-17
Part
47E(c) –management of
4 June 2021
access
personnel,
47F – personal privacy
2
3 June 2021
Email re MD Briefing
1-7
Part
47E(c) – management of
Buyouts, with 1
access
personnel,
attachment
47F – personal privacy,
47G – business,
commercial or financial
affairs
3
21 June 2021
Email re Items for catch up, 1-3
Part
22 – irrelevant material
with Document 2 attached
access
removed
47E(c) - management of
personnel
47F – personal privacy, &
47G – business,
commercial or financial
affairs
4
24 June –
Buyouts email chain, with 1-28
Refused
47C – deliberative
30 July 2021
2 attachments
processes
47E(c) – management of
personnel &
47G – business,
commercial or financial
affairs
5
7 July 2021
Email re: Items for catch up 1-2
Part
22 – irrelevant material
access
removed
47F – personal privacy
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No.
Date
Description
Page/s Access
Exemption Section/s
Grant
Decision
6
12 October
Email re: Buyout Review
1-3
Part
47E(c) –management of
2021
access
personnel
7
21 July –
Email chain
1-2
Part
22 – irrelevant material
6 August 2021
access
removed
47E(c) –management of
personnel
8
28 July 2021
Email re: Buyouts email
1-20
Part
47E(c) – management of
chain, with 2 attachments
access
personnel,
47F – personal privacy,
47G – business,
commercial or financial
affairs
9
30 July 2021
Email re: Giving thanks
1
Full
-
release
10
17 August 2021 Email re: Discussion on
1-14
Part
47E(c) – management of
Buyouts and Band 1
release
personnel,
Classifications, with 1
attachment:
47G – business,
1. Buyouts and
commercial or financial
Band 1
affairs
Communications
Pack
11
17 - 18 August
Email chain re: Buyouts
1-2
Refused 47E(c) – management of
2021
and overpayments
personnel,
47F – personal privacy,
47G – business,
commercial or financial
affairs
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No.
Date
Description
Page/s Access
Exemption Section/s
Grant
Decision
12
23 August 2021 Plan for buyout comms
1
Full
-
release
13
30 August 2021 Requesting feedback on
1-17
Full
-
buyout docs, with 2
release
attachments
1.
Director
email to employees
– limitations to new
buyouts
2.
FAQs –
limitations on new
buyouts
14
2– 25
Email chain: buyouts, Band 1-2
Refused 22 – irrelevant material
September
1 and Meal Allowance
removed
2021
Compensation Review
47 – commercially
valuable
47E(c) –management of
personnel
47F – personal privacy
47G – business,
commercial or financial
affairs
15
5 - 8 October
Email chain re Buyouts
1-4
Refused
47E(c) –management of
2021
Resolution
personnel
47F – personal privacy
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Annexure A – Your Review Rights
If you are dissatisfied with this decision you can apply for Internal Review by the ABC, or
Information Commissioner (IC) Review. You do not have to apply for Internal Review before
seeking IC Review.
APPLICATION FOR INTERNAL REVIEW
You have the right to apply for an internal review of the decision refusing to grant access to
documents in accordance with your request. If you apply for an internal review, the Managing
Director will appoint an officer of the Corporation (not the person who made the initial
decision) to conduct a review and make a fresh decision.
You must apply in writing for an internal review of the decision within 30 days of receipt of
this letter. No particular form is required, although it would help if you set out the reasons for
review in your application.
Application for a review of the original decision should be emailed to ABC: xxx.xxx@xxx.xxx.xx
or addressed to:
The FOI Coordinator
ABC
Level 13
700 Harris Street
ULTIMO NSW 2007
Application for Information Commissioner (IC) Review
Alternatively, you have the right to apply for a review by the Information Commissioner of the
decision refusing to grant access to documents in accordance with your request. Your
application must:
be in writing;
be made within 60 days of receipt of this letter;
give details of how notices may be sent to you (for instance, by providing an email
address); and
include a copy of the decision for which a review sought.
The Information Commissioner has a discretion not to undertake a review (see Division 5, FOI
Act). Please refer to the OAIC website FOI review process page for further information and/or
to access the online form for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/foi-review-process
Alternatively, application for IC Review can be emailed to: xxxxxxxxx@xxxx.xxx.xx or
addressed to:
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
COMPLAINTS TO THE INFORMATION COMMISSIONER
You may complain to the Information Commissioner about any action taken by the ABC in the
performance of functions, or exercise of powers, under the FOI Act. The Information
Commissioner may make inquiries for the purpose of determining whether or not to
investigate a complaint.
Complaints can be made in writing to: OAIC - GPO Box 5218 Sydney NSW 2001
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