Ashok
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: <SHC22-1618>
Dear Ashok
Freedom of Information request
1. I am writing about your Freedom of Information (FOI) request under the
Freedom of
Information Act 1982 (FOI Act) made on 20 February 2022 for access to documents held
by the Australian Public Service Commission (Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available from www.legislation.gov.au.
Documents relevant to your request
3. You requested access to documents in the following terms:
“I want to know how it is that a person who does not meet essential requirements for a
vacancy may still be engaged or promoted to fill a vacancy, especially in light of the
principles of merit based selection set out in the laws of the Commonwealth.
Aside from the Public Service Act 1999, the Public Service Regulations 1999, Directions
made under the Public Service Act by the Australian Public Service Commissioner, under
the FOI Act I request access to:
a) documents about merit based selection of candidates to fill vacancies in the
Australian Public Service; and (
Request A)
b) to the extent that the documents provided under a) do not address the matter,
documents indicating that, despite failing to meet essential criteria for a vacancy,
a person may be engaged where there is "a clear pathway to eligibility within a
reasonable time after the recruitment process." (
Request B)
I would also like access to documents that set out the powers of the Australian Public
Service Commissioner to conduct investigations of his own motion, as well as
documents setting out the circumstances in which the Commissioner would exercise
such powers.” (
Request C)
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
4. I have identified
forty-seven (47) documents relevant to your request. I have attached a
schedule at
Attachment A to this letter setting out the documents relevant to your
request.
Decision on your FOI request
5. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
6. For each part of your request I have decided:
Request A
To grant you access in full to
twenty-two (22) documents and in part to
two (2) documents (for a total of
twenty-four (24) documents). I consider
all of these documents are broadly about merit-based selection of
candidates to fill vacancies in the APS.
Request B
To grant you access in full to
one (1) document. I note this document has
also been produced as part of Request A above. I consider the document
broadly provides when a candidate may be engaged or promoted without
meeting formal qualification requirements.
Request C
To grant you access in part to
twenty-three (23) documents.
7. My reasons are set out in
Attachment B.
Documentation for Requests A & C
8. Please note that some of the documents produced for Request A and C of your FOI request
are draft documents that were, or are, under development.
9. These draft documents:
a. provide general guidance for APS agency’s with respect to recruitment. It is
important to note that some of these documents are under review and may be
discarded, substantially updated or changed to reflect changes in legislation and
policy.
b. provide general guidance for Commission staff assisting the Australian Public
Service Commissioner (Commissioner) with the handling of any complaints made
in relation to Agency Heads, Statutory Officeholders and APS employees. It is
important to note that these documents only provide high level guidance and the
Commission assesses each complaint taking into consideration the specific
circumstances of each complaint.
Deletion of exempt matter or irrelevant material
10. Section 22 of the FOI Act requires an agency to provide access to an edited version of a
document where it is reasonably practicable to edit the document to remove exempt
material or material that is irrelevant to the scope of a request.
11. Copies of the requested documents have been edited to remove material that is either
exempt or irrelevant material to the scope of your request. The schedule at
Attachment A sets out the grounds on which information has been redacted from the documents relevant
to your request.
Contacts
12. If you require clarification on matters in this letter please contact the Commission’s FOI
Officer by telephone on (02) 6202 3500 or by email at xxx@xxxx.xxx.xx.
Review rights
13. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
Charmaine Sims
Charmaine Sims
Authorised FOI decision maker
21 March 2022
ATTACHMENT A
Schedule of Documents
Document
Document Title
Basis for redactions
Request A
Not applicable.
1
1. Application of merit principle – Answers to standard questions
s 47C and s 47F
2
2 Assessment Methodology Guide Draft
Not applicable.
3
3. Bulk Recruitment – Answers to standard queries
4. Certification of SES exercise by APS Commissioner’s
Not applicable.
4
Representative
Not applicable.
5
5. Competitive selection process – Answers to standard queries
Not applicable.
6
6. Conditions of Engagement – APSC Webpage
Not applicable.
7
7. Creating, Using and Sharing Merit Lists – APSC Webpage
Not applicable.
8
8. Employment Principles – APSC Webpage
Not applicable.
9
9. Government’s Merit and Transparency Policy – APSC Webpage
Not applicable.
10
10. Guidance for Commissioner’s Representative
Not applicable.
11
11. Merit lists – Answers to standard queries
Not applicable.
12
12. Module 12 slides – Myths in Merit
Not applicable.
13
13. Non-ongoing temporary employment – APSC Webpage
Not applicable.
14
14. Non-ongoing employment
Not applicable.
15
15. Non-ongoing employment - Legislation
Not applicable.
16
16. One Pager – Merit Lists - FAQs
Not applicable.
17
17. Outreach program - FAQs
Not applicable.
18
18. Outreach Program – presentation talking points
s 47C and s 47F
19
19. Recruitment Guidelines – Running Draft
Not applicable.
20
20. Recruitment Guidelines (Under Review)
Not applicable.
21
21. Circular 2021-03 Fair Work Act changes
Not applicable.
22
22. Senior Executive Service (SES) Recruitment – APSC Webpage
Not applicable.
23
23. The APS Merit Principle – APSC Webpage
Not applicable.
24
24. Affirmative measure for recruiting people – APSC Webpage
Request B
6. Conditions of Engagement – APSC Webpage (as produced in
Not applicable.
6.
Request A above)
Request C
25
1. AH and SOH Complaints_Processes and Considerations
s 47E
s 47C, s 47E and s 47F. Certain
26
1A. AH and SOH Complaints
material out of scope.
27
1B. AH and SOH Complaints_Processes and Considerations
s 47C, s 47E and s 47F
s 47E. Certain material out of
28
1C AH and SOH Complaints_Processes and Considerations
scope.
29
2. Atta A_Process Flowchart
Not applicable
30
2A. AH Process Flowchart V1
Certain material out of scope.
31
2B. SOH Process Flowchart
Certain material out of scope.
32
2C. Preliminary Considerations Flowchart
Certain material out of scope.
33
2D. Att A AH and SOH Process Flowchart
Certain material out of scope.
34
2E. Att A Process Flowchart V3
Certain material out of scope.
35
2F. Att A Process Flowchart V4
Certain material out of scope.
36
2G. Att A Process Flowchart V5
Certain material out of scope.
37
2H. AH flowchart v0
Certain material out of scope.
38
2I. SOH diagram
Not applicable.
39
3. Att B Powers to Inquire
Not applicable.
40
4. Att C Public Interest Considerations
Not applicable.
41
5. Att D Informal Resolution Considerations
Certain material out of scope.
42
7. Att F_TBC_Considerations for Investigations DRAFT
s 47E
43
7. x [Template c] – Reg 6 Considerations
Not applicable.
44
8. Handling Misconduct Guide Chapters 4, 6, 7, and 8
Not applicable.
9. BP – Allegations made against Agency Heads and Statutory Office
45
Holders UNCLEARED
s 22 and s 47F
46
10. AH Complaints Considerations
Not applicable
11. Re AH Investigations redrafted wording for consideration (before I
47
edit full doc and flowchart)
s 47 C and s 47F
ATTACHMENT B
Reasons for decision
1. I have decided to refuse access to parts of the documents you have requested. The following
paragraphs outline my findings and reasons for determining the specified exemptions.
2. In making my decision on your request I have had regard to the following:
• the terms of your request;
• the content of the relevant documents you have requested;
• the relevant provisions of the
Freedom of Information Act 1982 (FOI Act);
• FOI guidelines issued by the Australian Information Commissioner and published on
the Office of the Australian Information Commissioner (OAIC) website.
Section 47C – Documents subject to deliberative processes
3. Section 47C of the FOI Act conditionally exempts documents containing deliberative
matter. Deliberative matter generally consists of:
• an opinion, advice or recommendation that has been obtained, prepared or recorded; or
• a deliberative process of the Commission.
4. A deliberative process includes the recording or exchange of opinions, advice,
recommendations, a collection of facts or opinions and interim decisions and deliberations.
5. Some of the documents that fall within the scope of your request contain material which
record the deliberative processes of the Commission. This deliberative material concerns
communications between Commission staff in:
• determining how to update draft recruitment guidance material by reference to
opinions on what the best approach may be and which Commission staff to contact.
• determining the best manner in which to support the Commissioner in his function
of inquiring into alleged breaches of the APS Code of Conduct by Agency Heads,
Statutory Officeholders and APS employees.
6. This material constitutes an exchange of opinions and deliberations by Commission staff
and does not involve a final decision or finding made by the Commissioner or his delegates.
7. Where applicable I have considered and identified specific deliberative material and
separated these from factual material contained in the documents.
8. For the reasons outlined above I am of the view that the release of relevant parts of the
requested documents would contain the deliberative processes of the Commission and are
therefore conditionally exempt under section 47C of the FOI Act. My consideration of the
public interest is provided separately below.
Paragraph 47E(d) – proper and efficient conduct of operations
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9. Paragraph 47E(d) of the FOI Act provides that a document is conditionally exempt from
disclosure if its disclosure would, or could reasonably be expected to, have a substantial
adverse effect on the proper and efficient conduct of the operations of an agency.
10. The Australian Public Service Commissioner (Commissioner) and his delegates have a
number of statutory functions under the
Public Service Act 1999 (PS Act), including in
particular including investigating instances where Agency Heads, Statutory Officeholders
and APS employees (including SES employees) may have breached the APS Code of
Conduct.
11. These are important statutory functions to ensure that the Commissioner can investigate
any potential breaches of the APS Code of Conduct taking into consideration the factors
outlined in the PS Act and the
Public Service Regulations 1999 (Cth) (PS Regs).
12. Any complaints and potential investigations are treated with the utmost confidence and
even within the Commission information is only shared with the Commission staff on a
“need-to-know” basis. Given the nature of the complaints and allegations made against
Agency Heads, Statutory Officeholders and APS employees being able to conduct these
inquires in strict confidence is of vital importance in ensuring that the Commission can
support the Commissioner with these functions.
13. Some of the documents that you have requested contain material which provide specific
detail on how the Commission investigates these complaints. Release of such material
could reasonably hinder the work of the Commission in the investigating future complaints
and trying to build a relationship of trust with any complainants or other individuals
providing the Commission with evidence.
14. The disclosure of such information would likely have a substantial adverse effect on the
Commission’s ability to undertake these investigations in a confidential manner and would
undermine the trust in the Commission from any individuals who may seek to make a
complaint.
15. For the reasons outlined above I am of the view that the release of relevant parts of the
requested documents would have a substantial and adverse effect on the proper and efficient
conduct of the operations of the Commission. I have therefore decided that such material
contained in the documents falling within the scope of your request is conditionally exempt
from disclosure under paragraph 47E(d) of the FOI Act. My consideration of the public
interest is provided separately below.
Section 47F – personal information
16. Section 47F of the FOI Act provides that a document is conditionally exempt if it would
involve the unreasonable disclosure of the personal information about any person.
17. Personal information means 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
• the information or opinion is recorded in a material form or not.
- 8 -
18. A number of your requested documents capture the personal information of public servants
and other individuals.
19. Under the FOI Act there is no presumption that agencies and ministers should start from
the position that the inclusion of the full names of staff in documents increases transparency
and the objects of the FOI Act:
Warren; Chief Executive Officer, Services Australia and
(Freedom of information) [2020] AATA 4557 at [83].
20. With the substantial increase in electronic requests and related correspondence, a rise in
anonymous applications as well as requests affecting the safety and wellbeing of
employees, the Commission now assesses whether a disclosure of public servants’ personal
information in requests is unreasonable under section 47F of the FOI Act.
21. Having regard to the matters I must consider under subsection 47F(2) of the FOI Act, I
have identified the following factors that, in my view, do not support release of certain
public servants’ personal information under section 47F of the FOI Act:
• the individual’s personal information, in particular their full names or initials, will
identify them;
• the names and contact details of a number of the individuals is generally not well known
or publicly available and the disclosure of this information will not advance scrutiny of
any decisions falling within the scope of your FOI request, particularly with regard to
staff who are not relevant decision-makers and non-SES staff members who are acting
under the direction of senior staff in the course of their ordinary duties;
• the release of some of the individual’s personal information in connection with the
subject matter of the documents would likely cause stress for them or other detriment,
including in particular:
o where the documents pertain to sensitive matters that those individuals were
working on;
o where the documents pertain to a potential complaint against an Agency Head,
Statutory Officeholder or APS employee, the likelihood that individuals may
suffer harassment is increased; and
o relevant personal information, including emails and mobile phone numbers
could result in those individuals being contacted outside of appropriate official
channels, including outside of business hours; and
• no public purpose or interest in increasing transparency of government would be
achieved through the release of the information.
22. Considering the above factors, I consider that the disclosure of personal information of
certain public servants and of other individuals about would be unreasonable in the
circumstances and could result in specific harm.
23. I have therefore decided that to the extent the documents include personal information
about non-SES staff members, those parts of the documents are conditionally exempt from
disclosure under section 47F of the FOI Act. My consideration of the public interest test is
provided separately below.
- 9 -
Section 11A – the public interest
24. Subsection 11A(5) of the FOI Act provides that an agency must give access to a document
if it is conditionally exempt unless (in the circumstances) access to the document would,
on balance, be contrary to the public interest. I have found that certain material is
conditionally exempt on the grounds of section 47C, paragraph 47E(d) and section 47F of
the FOI Act.
Factors in favour of disclosure
25. Subsection 11B(3) lists certain factors as favouring access to a document in the public
interest. Relevantly, these factors include whether access to the document would:
• promote the objects of the FOI Act (including all the matters set out in sections 3 and
3A); and
• inform debate on a matter of public importance.
26. In considering whether access to the documents you have requested would, on balance, be
contrary to the public interest, I have not identified any other relevant factors in addition to
the subsection 11B(3) factors above, as being in favour of providing access.
27. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining whether
access would be in the public interest. I have not had regard to these factors.
Factors against disclosure
28. I have identified the following factors as weighing against disclosure of the documents you
have requested:
• the disclosure of the Commission’s deliberative processes will hinder the
Commission’s future deliberative processes and efficiency with which the Commission
can update guidance or support the functions of the Commissioner;
• the disclosure of certain information will significantly undermine the Commission’s
ability to investigate any complaints made against Agency Heads, Statutory
Officeholders and APS employees this will have a substantial and adverse effect on the
proper and efficient operations of the Commission; and
• the disclosure of certain personal information (including contact details) of a number
of the identifiable individuals will not advance any scrutiny of any decisions falling
within the scope of your FOI request.
29. Taking into account the matters above, I find overall that disclosure of some parts of the
requested documents would be contrary to the public interest. I therefore find that to the
extent that the material contained in the documents is conditionally exempt under sections
47C, 47E and 47F of the FOI Act, those parts of the requested documents are exempt from
disclosure under the FOI Act.
ATTACHMENT C
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Seeking review of a Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (the FOI Act)
you may be able 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 seeking:
1. an internal review by an different officer of the Australian Public Service
Commission; and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental 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 within 30 days of receiving this letter
to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
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 FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
- 11 -
in writing for a review by the Office of the Australian Information Commissioner (the OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency
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 Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency 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 Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
Document Outline
