OFFICIAL: Sensitive
2 May 2022
Dear JS
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
FREEDOM OF INFORMATION REQUEST – DECISION
I refer to your email of 1 March 2022 to the Australian Building and Construction Commission
(
ABCC) seeking access to the following documents under the
Freedom of Information Act 1982
(Cth) (
FOI Act):
“In a Notice on completion under s 86 of the FOI Act provided to the ABCC by OAIC the following
paragraph appears:
“ In response to this complaint, the ABCC submitted:
a. The ABCC initially identified two documents that it considered came within the scope of the request.
The documents contained the personal information of a number of individuals. As a consequence, the
ABCC determined it would consult with those persons pursuant to s 27A of the Freedom of Information
Act 1982 (Cth) (FOI Act). “
Under FOI I seek access to the two documents referred to in the paragraph above. i.e The ABCC
initially identified two documents that it considered came within the scope of the request.”
(
FOI Request.)
As notified to you on 18 March 2022, as the documents referred to in your FOI Request contain
personal information of a number of third parties the statutory timeframe was extended by 30 days to
2 May 2022 because of the consultation requirement under section 27A of the FOI Act.
I am authorised to made this decision under s 23 of the FOI Act.
Decision on request
I have identified the two documents the subject of the FOI Request.
I have decided to exempt the documents in full under sections 45, 47F and 47E(c) of the FOI Act.
Reasons for Decision
Section 45 – breach of confidence
The information in the two documents was exchanged on the understanding of confidentiality. The
information is specifically identified. The information has not been shared more broadly within the
ABCC and remains confidential. I am satisfied from my consideration of the content of the
documents that disclosure would result in detriment to the individuals concerned.
Accordingly, I find the documents are exempt on the basis that disclosure would found an action, by
a person for breach of confidence.
Page 1 of 3
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
43707762
OFFICIAL: Sensitive
Section 47F – personal privacy
The two documents contain sensitive personal information about a number of individuals. A number
were consulted and have objected to disclosure. I have taken their submissions into account but
have formed my own view on the application of the exemption.
Section 47F conditionally exempts a document if disclosure involves the unreasonable disclosure of
personal information about any person. In determining whether the disclosure would involve the
unreasonable disclosure of personal information, I must have regard to the following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources; and
(d) any other matters that I consider relevant.
The information is not well known and the individuals are not known to be associated with the
matters dealt with in the documents. The information is not publicly available. I am satisfied
disclosure would be unreasonable.
Access must be given to a conditionally exempt document unless disclosure would be contrary to the
public interest (s 11A(5)).
I have considered the objects of the FOI Act that include increasing scrutiny, discussion, comment
and review of the Government's activities. I have considered if disclosure would enable public
scrutiny or oversight of the management activities of the ABCC. I have formed the view that
disclosure of the documents would give the public minimal, if any, insight into how the ABCC
conducts its employment or management functions. However, disclosure of confidential and private
information, exchanged on a mutual understanding of confidentiality, would cause harm and distress
to the individuals concerned.
I find, on balance, that disclosure would be contrary to the public interest and the documents are
exempt under s 47F.
Section 47E(c) – management of personnel
Section 47E(c) conditionally exempts a document if disclosure 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. The documents concern matters relevant to the ABCC’s
management function. As discussed, those matters remain private and confidential. ABCC
employees have an expectation that any personnel related documents held by the ABCC are kept
strictly confidential and not made publicly available. If the ABCC could not maintain that undertaking
of confidentiality, I would expect there would be a significant reduction in the level of trust employees
would have with the ABCC management that could reasonably be expected to result in tensions in
workplace relations and make it more difficult to undertake its management functions generally. I find
this effect to be adverse and substantial. I am satisfied the documents are conditionally exempt
under s 47E(c).
I have taken into account the same public interest factors as for the s 47F exemption and find that that
disclosure would be contrary to the public interest and the documents are exempt under s 47E(c).
Page 2 of 3
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
43707762
OFFICIAL: Sensitive
Review rights
Internal review
I am not the principal officer of the ABCC. As a result, you are entitled under section 54 of the FOI
Act to seek an internal review of my decision. If you would like to request an internal review, your
application must be made within 30 days of you receiving this notice.
An internal review may be submitted by sending it to Freedom of Information Section
(ABCC)’ to either of the following contact addresses:
•
By post: GPO Box 9927 MELBOURNE VIC 3001 Australia
•
By email: xxx@xxxx.xxx.xx
Please note in your application the decision that you wish to be reviewed. If you do seek internal
review, we also invite you to provide any response to my reasons that may be relevant for a fresh
decision-maker to consider when reviewing my decision.
If you choose to seek an internal review, you will subsequently have a right to apply to the Australian
Information Commissioner (the
Information Commissioner) for a review of the internal review
decision.
Review by the Information Commissioner
Alternatively, under section 54L of the FOI Act, you may seek review of this decision by the
Information Commissioner without first going to internal review. Your application to the Information
Commissioner must be made within 60 days of you receiving this notice.
The Information Commissioner is an independent office holder who may review decisions of
agencies and Ministers under the FOI Act. More information is available on the Information
Commissioner's websi
te www.oaic.gov.au.
You can contact the Information Commissioner to request a review of a decision online or by writing
to the Information Commission at:
•
By post: GPO Box 5218 Sydney NSW 2001
•
By email: xxxxx@xxxx.xxx.xx
Contacts
If you have any questions about this notice, please contact the ABCC’s FOI Section (xxx@xxxx.xxx.xx).
Yours sincerely
Stacey Van der Meulen
Legal Manager (A/g)
Australian Building and Construction Commission
Page 3 of 3
GPO Box 9927 in your capital city
Hotline: 1800 003 338
abcc.gov.au ABN 68 003 725 098
43707762
