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FOI-2022-10022
31 March 2022
Cynthia
By email to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Cynthia
Freedom of Information request – access decision
I refer to your request received on 7 February 2022 for access to documents held by the Office of the
Commonwealth Ombudsman (the Office) under the
Freedom of Information Act 1982 (the FOI Act).
I sincerely apologise for the delay in providing this decision.
Decision and reasons
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to FOI
requests on behalf of the Office.
I have decided to:
• grant access in part to 3 documents;
• refuse access to parts of documents 1-3 under s 47F of the FOI Act;
• refuse access in ful to documents 4-41 under s 47G(1)(a) of the FOI Act.
In making my decision I had regard to the terms of your request, the contents of the requested
documents, submissions from a third party, relevant provisions of the FOI Act, and Guidelines issued
by the Australian Information Commissioner under s 93A of the FOI Ac
t1 (the FOI Guidelines).
A schedule of documents is available below at
Attachment A.
Information about your complaint and review rights is at
Attachment B.
FOI request
In your request dated 7 February 2022 you requested access to the fol owing:
“…I’ve come across another interesting contract notice on the AusTender website.
The contract notice number is CN3754388. The description for the contract is “Contractor EL1
equivalent in the role of Assistant Director”. The supplier of the services is Capital Recruit
Operating Account. The value of the contract is $156,000. The contract period is 11 February
2021 to 30 October 2021.
a) the written document (or documents) setting out the contract associated with
CN3754388, so that I can determine what services were provided by the supplier;
b) any purchase orders associated with CN3754388;
c) any invoices issued by the supplier with respect to CN3754388;
1 https://www.oaic.gov.au/freedom-of-information/foi-guidelines.
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au
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d) any and all documents setting out the scope of the role of this contractor (including
what duties they had to perform, performance indicators etc.);
e) the APS role evaluation summary record (the template of this summary record can be
found on pages 3 – 5 of the “Australian Public Service Role evaluation tool”, which is available
for download at https://www.apsc.gov.au/working-aps/aps-employees-and-
managers/classifications/aps-role-evaluation-guidance-and-tool for the “equivalent”
Executive Level 1 Assistant Director role that was the comparative basis of the contractor’s
role; and
f) to the extent that it is not covered by (d) and (e), any and all documents setting out the
‘research’ (e.g. interviews with other staff, analysis of similar roles in other agencies, analysis
of going market rates in relation to the work to be performed by the contractor etc.)
undertaken by OCO staff to determine the proper scope of the role of the contractor.
Third party consultation
During the processing of your request, we consulted a third party that would potential y be affected
by the release of the documents fal ing within the scope of your request and that third party has
made a submission in support of an exemption contention.
For this reason, the processing time in respect of your request was extended by 30 days.
Steps taken to locate documents
To locate the requested documents, I have searched our electronic file management system using
the information provided in your request (contract notice reference numbers) and consulted with
relevant internal staff to retrieve records. I am satisfied that this search was appropriate and all
documents relevant to your request have been identified where possible.
I identified 41 documents within the scope of your request.
Public Interest Conditional Exemption – business – Section 47G of the FOI Act
I have decided to refuse access to material comprising the rates, fees and tax invoices (‘pricing
information’) in respect of a contract of service between this Office and Capital Recruit Pty Ltd under
s 47G(1)(a) of the FOI Act.
Section 47G conditional y 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 that 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
The FOI Guidelines explain that the business information exemption is intended to protect the
interests of third parties dealing with the Government. The operation of s 47G depends on the effect
of disclosure rather than the precise nature of the information itself
2.
Business information
I am satisfied that the pricing information in the documents relates to the money-making affairs of
the supplier as opposed to its private or internal affairs. As the material directly relates to the
services provided as part of a commercial transaction I consider the information is business
information for the purpose of s 47G of the FOI Act.
Disclosure would unreasonably affect business, commercial or financial affairs
In deciding whether disclosure of a document containing business information would be
2 FOI Guidelines, [6.184] – [6.185].
2
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unreasonable for the purpose of s 47G(1)(a), a decision maker must balance the public interest and
the private interests of the business.
I consider that as the pricing information relates to the expenditure of public funds by this Office
there is a moderate public interest in ensuring the Office is appropriately procuring services in
accordance with government policy.
However, I consider that release of the information would reveal limited additional information
about the expenditure of public funds noting that certain information about the total value of the
contract is already publicly available on the Austender website
3.
Based on my examination of the pricing information, disclosure of this material could be used to
calculate or determine the pricing structure of the suppliers’ services. Having regard to the market in
which the supplier operates (the provision of labour-hire services), disclosure of such information is
reasonably likely to impact on the ability of the supplier to compete against other suppliers (for
example, disadvantage the supplier in a competitive negotiation or tender process).
On balance, as the pricing information is not otherwise publicly available and considering the
detrimental effect disclosure would have on the supplier, disclosure would be unreasonable in these
circumstances.
For these reasons, the pricing information is conditional y exempt under s 47G(1)(a) of the FOI Act.
Disclosure not in the public interest
Subsection 11A(5) of the FOI Act provides that, if a document is conditional y exempt, it must be
disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest’.
I have identified one factor favouring disclosure in the public interest, where disclosure would
promote effective oversight of public expenditure. However, as discussed above I have afforded little
weight to this factor as the total value of the contract is already publicly available.
I do not consider disclosure would inform debate on a matter of public importance, reveal
information about the operations of this Office, or allow access to personal information.
I have considered that disclosure could reasonably be expected to harm the financial and business
affairs of the supplier. I have afforded moderate weight to this factor having regard to the
submissions of the supplier and my examination of the pricing information. In my view, disclosure
would significantly impact on the profitability of a private business.
On balance, I am satisfied that disclosure of the pricing information would be contrary to the public
interest and I have exempted the relevant information from disclosure under s 47G of the FOI Act on
this basis.
Public Interest Conditional Exemption – Personal privacy – Section 47F of the FOI Act
I have decided to refuse access to the ful names, direct contact details and signatures of third
parties; and the direct contact details, surnames, and signatures of staff in this Office under s 47F of
the FOI Act.
Section 47F conditional y exempts a document to the extent that its disclosure would involve the
unreasonable disclosure of personal information about a person.
Personal information
Section 4(1) of the FOI Act provides that ‘personal information’ has the same meaning as in the
Privacy Act 1988 (the Privacy Act). Section 6(1) of the Privacy Act provides:
3 https://www.tenders.gov.au/Cn/Show/9b628080-7fb8-4f66-9652-155ad26218d8.
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‘personal information means 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’
The identity of the relevant individuals is reasonably ascertainable from the inclusion of their full
names, contact details and their signatures. I am therefore satisfied that the relevant information
constitutes personal information under the definition set out in section 4 of the FOI Act.
Disclosure unreasonable
If information is personal information, it will be conditionally exempt if its disclosure would be
'unreasonable'. In considering whether disclosure would be unreasonable, subsection 47F(2) of the
FOI Act requires me to take into account:
• 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 matters that I consider relevant.
The FOI Guidelines set out further information to which decision makers must have regard to when
determining whether disclosure would be unreasonable, including
4:
• the nature, age, and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency’s col ection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
• whether disclosure of the information might advance the public interest in government
transparency and integrity.
As per the factors set out in the Guidelines, and s 47F of the FOI Act, I have turned my mind to
whether disclosure would be unreasonable in this particular case.
In respect of the personal information of third parties I have considered the fol owing:
• disclosure is not likely to advance the public interest in government and transparency,
particularly noting relevant details about the contract are publicly available on Austender
• the relevant documents are less than 2 years old, and I believe the personal information
remains current and accurate
• as the documents relate to a contract for services between the supplier and this Office, the
personal information of third parties is not well known or otherwise publicly available
Having regard to these factors, I consider release of the personal information of third parties would
be unreasonable in the circumstances.
4 FOI Guidelines, [6.143].
4
In respect of the personal information of staff in this Office I have considered the fol owing:
• the information is included on documentation for the purpose of a commercial arrangement
and for this reason the information is not well known or otherwise publicly available
• the information remains current and accurate
• this Office has a live duty of care to protect the health and wellbeing of staff in this Office,
including by addressing the risk of unsolicited contact or harassment as a result of obtaining
direct contact details of staff
Having regard to these factors, I consider release of the personal information of staff in this Office
would be unreasonable in the circumstances.
Disclosure not in the public interest
Disclosure of the personal information included in the documents would reveal very limited
information about the operations of this Office and would not contribute to the oversight of public
expenditure.
In my opinion, the public interest is best served by withholding this information on the ground that
release of this information could reasonably be expected to prejudice the protection of a person's
right to safety and privacy.
Pursuant to subsection 11A(5) of the FOI Act, I have concluded that the relevant material is not
required to be disclosed because disclosure at this time would be, on balance, contrary to the public
interest.
Yours Sincerely,
Caitlin Christie
Paralegal
Legal Team
Influencing systemic improvement in public administration
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Attachment A – Schedule of documents
Freedom of Information Request FOI-2022-10022
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
1.
10 February 2021
5
Request for approval to engage a
Partial Access
Section 47F – personal privacy (Ombudsman staff surnames,
contractor under a labour-hire
direct email and direct phone number)
arrangement
2.
11 February 2021
6
Work Order – Assistant Director -
Partial Access
* Section 47G(1)(a)– commercial y valuable information (pricing
Finance team
information)
Section 47F – personal privacy (Ombudsman staff surnames, direct
email and direct phone number; Capital Recruit staff names,
signature, direct email, phone number)
3.
11 February 2021
1
Contractor and Position
Partial Access
Section 47F – personal privacy (third party ful name, email
Information Form
address, mobile number; Ombudsman staff surname)
4.
3 March 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
5.
3 November 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
6.
2 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
GPO Box 442, Canberra ACT 2601 ▪ Phone 1300 362 072 ▪ ombudsman.gov.au
Freedom of Information Request FOI-2022-10022
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
7.
1 September 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
8.
31 March 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
9.
29 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
10. 29 September 2021 2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
11. 28 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
12. 28 April 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
13. 27 October 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
14. 24 February 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
15. 26 May 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
16. 25 August 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
7
Freedom of Information Request FOI-2022-10022
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
17. 24 March 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
18. 22 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
19. 22 September 2021 2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
20. 21 July 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
21. 21 April 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
22. 20 October 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
23. 19 May 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
24. 18 August 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
25. 17 March 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
26. 16 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
8
Freedom of Information Request FOI-2022-10022
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
27. 15 September 2021 2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
28. 14 July 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
29. 14 April 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
30. 13 October 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
31. 12 May 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
32. 11 August 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
33. 10 March 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
34. 9 June 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
35. 8 September 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
36. 7 July 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
9
Freedom of Information Request FOI-2022-10022
Doc
Date
Pages
Description of Document
Decision on
Exemption
No.
access
37. 7 April 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
38. 6 October 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
39. 5 May 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
40. 3 November 2021
1
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
41. 4 August 2021
2
Invoice
Exempt in full
* Section 47G(1)(a)– commercial y valuable information (pricing
information)
10
Document Outline
