FEDERAL COURT OF AUSTRALIA
A.B.N. 49 110 847 399
LAW COURTS BUILDING
SYDNEY NSW 2000
1 August 2022
via Right to Know
By email: email@example.com
Request for an internal review under the Freedom of Information Act 1982
I refer to your email of 2 July 2022 sent to the firstname.lastname@example.org mailbox of the
Federal Court of Australia (Court
) seeking an internal review of a decision made on behalf of
the Court on 22 June 2022.
I am authorised under the FOI Act to make a decision on behalf of the Court in relation to your
internal review request. In conducting the internal review, I note that s 54C of the Freedom of
Information Act 1982
(Cth) (FOI Act
) requires me to review the original FOI decision and
make a fresh decision on behalf of the Court. I also acknowledge that an internal review is a
merit review process and that, as set out in paragraph 9.34 of the FOI Guidelines issued by the
Australian Information Commissioner under section 93A of the FOI Act (FOI Guidelines
internal review officer should “bring a fresh, independent and impartial mind to the review
On 23 April 2022, you sent an email to the email@example.com mailbox of the Court
) seeking access to documents under the FOI Act. Your request is too lengthy to
extract here but, in summary, your request was divided into four (4) parts and each part sought
several pieces of information about Senior Executive Service (SES
) employees. You stated in
your FOI request that, if the documents did not exist in discrete form but could be prepared
under s 17 of the FOI Act, the Court should “prepare the documents accordingly
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In a decision dated 22 June 2022, the original decision-maker explained that the information
you requested was not available in discrete form in written documents of the Court. However,
given the application of s 17 of the FOI Act and your specific request regarding the provision
of information under s 17, the decision-maker decided to grant you access to a written
compilation of the information sought, subject to the exclusion of information from that written
compilation that was conditionally exempt under ss 47E and 47F of the FOI Act and was, on
balance, contrary to the public interest to disclose under s 11A(5) of the FOI Act. The specific
information that the decision-maker determined was exempt from disclosure was: the names
of SES employees, the dates that SES employees were first engaged/transferred/promoted by
the Court, and the dates that certain SES employees retired/resigned/were terminated.
On 2 July 2022, you sent an email to the Court’s firstname.lastname@example.org mailbox
seeking an internal review of that decision under the FOI Act.
According to paragraph 9.34 of the FOI Guidelines, an internal review officer should “consider
all issues raised by the person applying for internal review
”. In that regard, I note that you state
in your internal review request that you “disagree that any of ss 47C, 47E and 47F apply to the
”. While I will consider your contentions regarding the application of ss
47E and 47F in the reasons for my decision below, I note that the original decision-maker did
not make any determination regarding the applicability of s 47C to the information requested.
Similarly, I have decided that s 47C is not applicable to the information sought.
In your internal review request you also make reference to allegations levelled against the
management of the Court, also contained in articles published in The Australian
. On the basis
of these allegations, you claim there is a public interest in knowing who the Court’s SES
officers are and “whether their classification allocations were applied on the basis of merit
You also state that any claims “about mental health, the cohesion, and the like, of registrars is
trumped by the public interest in shining a light on illegality and unlawfulness
Having carefully reviewed all relevant material, it is difficult to see a direct link between the
substance of the allegations you have referred to and the specific information sought in your
FOI request. I note that the Court has not commented publicly on whether the substance of the
allegations, and information related to those allegations, is true or is an accurate reflection of
the Court’s records. As an internal review officer, it would be inappropriate for me to comment
on those allegations in any detail, especially in circumstances where the Australian Public
Service Commission (APSC
) investigation referred to in The Australian
articles was conducted
pursuant to the Public Interest Disclosure Act 2013
(Cth) (PID Act
). As such, the ASPC’s
investigation remains subject to the secrecy provisions of the PID Act. Additionally, there is a
Commonwealth Ombudsman investigation underway concerning that APSC investigation, for
which findings are yet to be handed down. Nonetheless, I will very briefly address in my
decision the relevance of the existence of the allegations to the public interest test under s
11A(5) of the FOI Act.
Finally, I note that your internal review request make several comments about the promotion
of SES employees with respect to Part 4 of the written compilation document issued to you
with the original FOI decision. I will address those comments in the section of my decision
below in which I discuss the searches undertaken and the provision of a new written
compilation document to you.
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Summary of internal review decision
After reviewing the original FOI decision dated 22 June 2022 and considering your FOI request
afresh, I have decided to grant you access, in accordance with s 17 of the FOI Act, to a written
compilation of the information sought in your original FOI request, subject to the exclusion of
information that is conditionally exempt under ss 47E and 47F of the FOI Act and would, on
balance be contrary to the public interest to disclose under s 11A(5) of the FOI Act. The reasons
for my decision are set out below.
Material taken into account
I have taken the following material into account in making my decision:
• your original FOI request of 23 April 2022;
• the decision letter issued to you and dated 22 June 2022;
• your internal review request dated 2 July 2022;
• the written compilation of information provided to you under s 17 of the FOI Act;
• the records of searches conducted by staff of the Court;
• third party submissions received following consultation under s 27A of the FOI Act;
• the FOI Act and relevant case law; and
• the FOI Guidelines.
Reasons for internal review decision
Searches undertaken and provision of documents under s 17 of the FOI Act
The original FOI decision includes details of the searches undertaken by staff at the Court in
response to your FOI request. It explains that the searches were extensive and included
discussions with relevant Court staff, searches of employee inboxes, search of network drives
and wider searches of the Court’s document, records management and information systems.
As a result of these searches, it was determined that the information sought in your FOI request
was not available in discrete form in written documents of the Court. Instead, it was determined
that the information sought in your FOI request was available in an online platform utilised by
the Court’s People and Culture team and could be retrieved and collated in the form of a written
document in compliance with s 17 of the FOI Act.
For the purpose of this internal review, I have carefully reviewed the records of the searches
previously conducted and the written compilation that was prepared and issued to you with the
original FOI decision. In conducting that review, I decided it was appropriate to have further
discussions with staff at the Court who conducted those searches and that further searches
should be conducted by the relevant staff. As a result of those discussions and further searches,
I have decided that the information retrieved and collated in the written compilation document
provided to you was accurate with respect to Parts 1, 2, and 3 of your FOI request and does not
require amendment. However, in relation to Part 4 of your FOI request, I have determined that
the information provided to you in the original written compilation requires amendment for
reasons I will explain below.
With respect to Part 4 of your original FOI request, I have determined that your reference to
SES employees who were “promoted
” within the Court, should reasonably be interpreted as a
reference to “promotion
” as defined in the Australian Public Service Commissioner’s
. Specifically, s 6 of those Directions defines “promotion
” as follows:
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6 Meaning of promotion
In this instrument, a reference to a promotion is a reference to the ongoing assignment of
duties to an ongoing APS employee at a classification that is in a higher classification
group than the classification group that includes the employee’s current classification, in
the same or another Agency, other than:
(a) the allocation of a higher classification within the same broadband in the same
(b) the allocation of an operational classification to a trainee.
Note: The following are not promotions:
(a) following a voluntary temporary reduction in an ongoing APS employee’s classification—
the ongoing assignment of duties to the employee at the original classification;
(b) the temporary assignment of duties to an APS employee at a higher classification than the
employee’s current classification.
As a result of further searches conducted by staff of the Court applying the definition of
” extracted above, it became apparent that the written compilation originally
provided to you in response to Part 4 of your FOI request included information about Court
employees who were not, in accordance with the relevant definition, “promoted
” to SES
positions in the Court. For this reason, I have decided to issue a new written compilation to you
containing the information sought. That new written compilation accompanies this decision
and applies the definition of “promotion
” extracted above to Part 4 of your FOI request. As I
will discuss in more detail below, the written compilation excludes material that I have
determined is conditionally exempt under ss 47E and 47F of the FOI Act and would, on
balance, be contrary to the public interest to disclose under s 11A(5) of the FOI Act.
Conditional exemption – operations of an agency
In relation to the conditional exemption contained in s 47E of the FOI Act, I agree with the
original decision-maker that the names and employment dates of SES officers are conditionally
exempt under both ss 47E(c) and 47E(d) of the FOI Act. The relevant provisions of the FOI
Act and FOI Guidelines are set out in the original FOI decision, so I will not repeat them here.
For the conditional exemption contained in s 47E(c) to apply, the material must relate to either
the “management of personnel
or the “assessment of personnel
I am satisfied, as the
original decision-maker was, that the names and employment dates of the relevant SES officers
relate to the “management of personnel
”, in the sense of being information about SES officers
who were recruited or promoted by the Court and being information regarding the terms of
employment of those officers.
In relation to the conditional exemption contained in s 47E(d) of the FOI Act, I find that
disclosure of the names and dates of employment of SES officers would bear on the “proper
and efficient conduct of the operations
of the Court in the sense that the relevant SES officers,
many of whom are Registrars of the Court, play a vital role in the management of the Court’s
administrative affairs as well as the exercise of the Court’s substantive judicial function, all of
which has a direct impact on the Court’s “proper and efficient
” conduct of operations.
1 See paragraph 6.114 of the FOI Guidelines.
3 Section 47E(d) of the FOI Act.
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I also note the guidance contained in paragraph 6.123 of the FOI Guidelines that the conditional
exemption in s 47E(d) does not apply to documents that reveal “unlawful activities or
”. Despite the allegations contained in your internal review request, I find that the
disclosure of the names and dates of employment of SES officers does not, in any way, reveal
“unlawful activities or inefficiencies
and, therefore, I have decided that the conditional
exemption contained in s 47E(d) remains applicable.
Turning to the question of whether disclosure of the documents would have a “substantial
on the management and assessment of personnel by the Court, I find that the
release of the documents would, or could reasonably be expected, to:
• destroy employees’ trust in the Court’s ability to protect their privacy and confidential
• discourage prospective job candidates from applying for roles at the Court due to the
perceived inability of the Court to protect confidential employee information;
• cause considerable stress and anxiety for existing Court employees whose personal
information is disclosed in response to your FOI request, resulting in a decline in the
wellbeing and productivity of those employees;
• prejudice the protection of Court employees’ right to privacy generally, thus resulting
in the curtailment of candid and open communication within the Court;
• in light of articles published in The Australian
about the Court’s recruitment activities,
adversely impact employee morale due to concerns that the personal information of
Court employees will be again published in the media or elsewhere.
In particular, and as discussed by the original decision-maker, the effect of the disclosure of
the names and employment dates of SES officers can be expected to be “both substantial and
based on the history of similar FOI requests and the effect of those requests on the
Court’s management of personnel and on the proper and efficient conduct of the Court’s
operations. As outlined by the original decision-maker, a large volume of FOI requests by
variously-named applicants have been made over recent months via the “Right to Know”
website. Many of those requests, and accompanying online commentary, all of which are
publicly-available via the “Right to Know” website, have included derogatory and offensive
statements about named individuals which has caused stress, anxiety and harm to the
individuals concerned. This evidences the substantial adverse effect that disclosure would, or
could reasonably be expected to, to have on the Court with respect to ss 47E(c) and 47E(d).
Furthermore, as pointed out by the original decision-maker, the Court has obligations under
the Work Health and Safety Act 2011
(Cth) to provide its employees with a safe and secure
workplace. This is imperative to the Court’s effective management of its personnel and to the
proper and efficient conduct of the Court’s operations.
For all of the reasons outlined above, I have decided that the names and employment dates of
SES officers are conditionally exempt under ss 47E(c) and 47E(d) of the FOI Act.
I will discuss below whether disclosure of those documents would also be contrary to the public
interest under s 11A(5).
4 Paragraph 6.123 of the FOI Guidelines.
5 Section 47E of the FOI Act.
6 Paragraph 6.113 of the FOI Guidelines.
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Conditional exemption – personal privacy
I have determined that the names and employment dates of the SES officers captured within
the scope of your FOI request are conditionally exempt under s 47F of the FOI Act because
their release would involve “the unreasonable disclosure of personal information
relevant provisions of the FOI Act and FOI Guidelines are extracted in the original FOI
decision, I do not propose to extract them again here.
As outlined in the original FOI decision, the names of SES officers are clearly “personal
” as defined in the FOI Act and Privacy Act 1988
(Cth). The dates of employment
of SES officers are also “personal information
” as such dates can be used to identify the
individuals concerned, especially when linked with other publicly-available information.
Therefore, the employment dates provide information about individuals who are “reasonably
and, on this basis, constitute “personal information
” under the FOI Act.
In relation to whether it would be unreasonable to disclose the “personal information
” under s
47F of the FOI Act, I agree with the original decision-maker that “special circumstances
exist in relation to the information you have requested. As noted in the original FOI decision,
paragraph 6.153 of the FOI Guidelines explains that where the personal information of public
servants is included in a document because of their usual duties and responsibilities, it is not
unreasonable to disclose the information unless special circumstances exist. In relation to the
release of public servants’ names and other personal details, previous decisions of the
Australian Information Commissioner have found “special circumstances
” to exist in situations
where public servants “have been subject to abuse and threats from various persons and
and where “a significant proportion of the accusations against the [relevant
public servants] were unsubstantiated
I find these past decisions to be applicable to the
As outlined in the original FOI decision, your FOI request, along with a large number of similar
FOI requests, was made to the Court via the “Right to Know” website. All FOI requests made
via this website, as well as FOI decisions responding to each request and commentary posted
on the website by FOI applicants and others, are accessible to the public. The website has been
utilised to publish offensive comments, unsubstantiated allegations and, at times, threats in
relation to officers of the Court, including officers whose personal details fall within the scope
of your FOI request. The publication of this material has had a significantly harmful impact on
the health and wellbeing of the individuals concerned. In this context, I find that “special
” do exist in relation to the names and dates of employment of the relevant SES
officers and that, in such circumstances, the information would be unreasonable to disclose.
In addition to the above, and as discussed in the original FOI decision, the consultations
conducted by the original decision-maker under s 27A of the FOI Act revealed that many of
the relevant SES officers strongly objected to the release of their personal information for
reasons including that disclosure would prejudice their right to privacy and would have an
adverse effect on them. As pointed out in the original FOI decision, given that many of the
7 Section 47F(1) of the FOI Act.
8 See definition of “personal information
” contained in s 6 of the Privacy Act 1988
9 See paragraph 6.153 of the FOI Guidelines.
10 Construction, Forestry, Mining and Energy Union and Australian Building and Construction Commission (Freedom
 AICmr 125 (1 December 2017) at 
11 Besser and Attorney-General’s Department
 AICmr 12 at 
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relevant SES officers are Registrars, disclosure of the personal information also generates
safety and security risks given the nature of the role of Registrars of the Court, which includes
the exercise of judge-delegated functions.
For all of the reasons outlined above, I have decided that disclosure of the names and
employment dates of SES officers that fall within the scope of your FOI request would be an
“unreasonable disclosure of personal information
” and that such information is, therefore,
conditionally exempt under s 47F of the FOI Act.
I will discuss the application of the public interest test under s 11A(5) below.
Public interest test
In light of my findings above regarding the names and employment dates of SES officers being
conditionally exempt under ss 47E and 47F of the FOI Act, I must now consider whether, on
balance, it would be contrary to the public interest under s 11A(5) of the FOI Act to give you
access to the information at this time. For the reasons outlined below, I have determined that,
on balance, disclosure of the information would be contrary to the public interest. I note that
the original FOI decision included extracts from the relevant legislation, guidelines and case
law, which I will not extract again here.
Subsection 11B(3) of the FOI Act requires me to take certain factors into account when
applying the public interest test, while s 11B(4) provides a list of irrelevant factors that I must
not take into account when applying the public interest test. I have complied with these
obligations in making my decision. I also note that the FOI Guidelines, at paragraphs 6.19 and
6.22, provide guidance regarding factors that favour disclosure and factors that weigh against
disclosure. I have adopted this guidance in making my decision.
In relation to the factors favouring disclosure, I accept that the release of names of SES officers
might broadly promote the objects of the FOI Act by giving the Australian community access
to information held by public sector agencies and enhancing “scrutiny, discussion, comment
of public sector activities. However, I reject your claim that the allegations
published on the “Right to Know” website and in The Australian
mean that there is public
interest in knowing the names and employment details of the Court’s SES officers. The
allegations made via those two sources remain unsubstantiated and, furthermore, some of the
SES officers captured by your FOI request have not yet been the subject of any allegations
though may, in future, be the subject of allegations if their names were to be released.
Furthermore, the weight to be accorded to this factor must be reduced in circumstances where
some of the allegations you have referred to in your internal review request relate to an APSC
investigation conducted pursuant to the PID Act which is subject to the confidentiality regime
established by the PID Act. The weight to be accorded to this factor must also be limited in
circumstances where a Commonwealth Ombudsman investigation is underway concerning that
APSC investigation and is yet to be finalised.
While I accept that disclosure of the names and dates of employment of SES officers may go
some way to promoting the objects of the FOI Act, there are several factors weighing against
disclosure, some of which have already been discussed. In particular, the names and dates of
employment would clearly identify the relevant SES officers and, if released, would harm the
12 Paragraph 3(2)(b) of the FOI Act.
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interests of the individuals concerned, as well as jeopardising the health and safety of these
individuals by putting them at risk of being the subject of further unsubstantiated allegations
and, potentially, offensive comments and threats. Furthermore, the release of the relevant
information would have a substantial adverse impact on the Court’s ability to protect employee
privacy and maintain a safe and secure workplace, thus negatively impacting the Court’s
management of its personnel and the proper and efficient conduct of the Court’s operations.
The original FOI decision included a list of factors that the decision-maker determined were
factors weighing against disclosure of the names and employment dates of SES officers. I will
not re-identify each of these factors here, but I note that I have carefully reviewed the factors
and agree with the original decision-maker that all factors listed should be accorded
considerable weight, particularly in relation to the harm that disclosure would cause to the
After balancing all of the factors that favour and disfavour disclosure, I have decided that the
benefit to the public resulting from disclosure is outweighed by the benefit to the public in not
disclosing the information. On this basis, I have decided that disclosure of the names and
employment dates of the relevant SES officers would, on balance, be contrary to the public
interest and that access should therefore be refused.
As discussed earlier in this decision, I have determined that it is appropriate to issue you with
a new written compilation of the information sought which applies the definition of
” contained in s 6 of the Australian Public Service Commissioner’s Directions
. That written compilation excludes the names and dates of employment of SES officers,
which I have decided are conditionally exempt under ss 47E and 47F of the FOI Act and would,
on balance, be contrary to the public interest to disclose under s 11A(5) of the FOI Act.
The new written compilation accompanies this decision and, given your internal review request
asks that the email address email@example.com be used for all
replies to your request, I have decided to provide the written compilation to you in PDF format
and release it to you via that email address.
Your review rights
If you are dissatisfied with my decision, you may apply to the Australian Information
Commissioner for review. An application for review by the Information Commissioner must
be made in writing within 60 days of the date of this letter, and be lodged in one of the following
post: GPO Box 2999, Canberra ACT 2601
in person: Level 3, 175 Pitt Street, Sydney NSW
More information about Information Commissioner review is available on the Office of the
Australian Information Commissioner website at https://www.oaic.gov.au/freedom-of-
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If you are dissatisfied with the way the Court has handled your FOI request, you may complain
to the Information Commissioner in writing. There is no fee for making a complaint. More
information about making a complaint is available on the OAIC website, including a link to
the online complaints form which the OAIC recommends using for complaints, at:
C Hammerton Cole