Our ref: CRM2022-1181 (LEX 763)
6 June 2022
Me
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Attention: Me
Freedom of Information request
I refer to your request dated 5 May 2022 made under the
Freedom of Information Act 1982
(the Act).
Attached at Annexure A to this letter is my decision and statement of reasons for that
decision.
I have decided to publish the documents in part. Publication of the documents will be made
on the AFP website at
https://www.afp.gov.au/about-us/information-publication-
scheme/routinely-requested-information-and-disclosure-log in accordance with timeframes
stipulated in section 11C of the Act.
Yours sincerely
Callum Hill
Lawyer and Acting Team Leader
Freedom of Information
Chief Counsel Portfolio
FREEDOM OF INFORMATION
Australian Federal Police
ABN 17 864 931 143
GPO Box 401 Canberra City ACT 2601 |
afp.gov.au
| Email: xxx@xxx.xxx.xx
ANNEXURE A
STATEMENT OF REASONS RELATING TO AN FOI REQUEST BY
ME
I, Callum Hill, Lawyer and Acting Team Leader, Freedom of Information, am an officer
authorised under section 23 of the Act to make decisions in relation to the Australian Federal
Police (AFP).
What follows is my decision and reasons for the decision in relation to your request.
BACKGROUND
On 2 May 2022, the AFP received your request in the fol owing terms:
I request:
- any correspondence
- to or from the AFP and another Commonwealth entity (including but not limited to
the Commonwealth Superannuation Corporation)
- sent, received or dated between 1 July 2019 and 30 June 2021 inclusive
- regarding, directly or indirectly, (1) PSSap; and, (2) the requirement, or lack of
requirement, for the AFP to tel PSSap members how much superannuation they have
been paid as a percentage of their salary
'Correspondence' is construed broadly - any communication for which there is a
record. Email, letter, GIFs sent in SES chat groups, messages by carrier pigeon, etc.
Final versions only is acceptable, drafts are not required
If documents you think would satisfy me are easily found, I am open to negotiating the
terms of my request to avoid the need for an exhaustive search that provides little of
interest
On 11 May 2022 you agreed to revise the scope of your request as fol ows:
I request:
1. Final version of emails for the period 1 July 2019 and 30 June 2021 inclusive
between AFP Payrol inbox and Commonwealth Superannuation Corporation (CSC)
regarding, directly or indirectly:
a.
PSSap; and,
b.
the requirement, or lack of requirement, for the AFP to tel PSSap
members how much superannuation they have been paid as a percentage
of their salary.
2. Final version of letters for the period 1 July 2019 and 30 June 2021 inclusive
between AFP People & Culture Command (and relevant Deputy Commissioner) or
the AFP Commissioner’s Office and CSC regarding, directly or indirectly:
a.
PSSap; and,
b.
the requirement, or lack of requirement, for the AFP to tel PSSap
members how much superannuation they have been paid as a percentage
of their salary.
SEARCHES
Searches were undertaken by relevant AFP business areas with responsibility for matters
relating to the documents to which you sought access including Chief Financial Officer, People
& Culture Command, Office of the Commissioner, Deputy Commissioner of People & Culture,
Payrol , and acting Commanders of Chief of Staff during the relevant periods.
EVIDENCE/MATERIAL ON WHICH MY FINDINGS WERE BASED
In reaching my decision, I have relied on the fol owing:
• the scope of your request;
• the contents of the documents identified as relevant to the request;
• advice from AFP business areas with responsibility for matters contained in the
documents;
• consultation with relevant Commonwealth agency;
• the Act; and
• the guidelines issued by the Office of the Australian Information Commissioner
(‘OAIC’) under section 93A of the Act.
DECISION
I have identified one (1) document (i.e. an email chain) responsive to your request.
I have decided to release the document to you in part with deletions pursuant to
sections 22(1)(a)(ii) and 47E(c) of the Act.
My reasons for this decision are set out below.
REASONS FOR DECISION
Material to which section 22(1)(a)(ii) applies:
Section 22(1)(a)(ii) of the Act provides that:
“(1)
Where:
(a)
an agency or Minister decides:
(ii)
that to grant a request for access to a document would
disclose information that would reasonably be regarded as
irrelevant to that request;”
Parts of the document contain information which is considered irrelevant to your request
(namely, an internal AFP email forwarding the responsive email chain to the FOI team – see
top of Folio 1).
Accordingly, I find this part of the document would be reasonably regarded as irrelevant to
the request under section 22(1)(a)(i ) of the Act.
Material to which section 47E(c) applies:
Section 47E(c)
of the Act provides that:
“A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
…
(c)
have a substantial adverse effect on the management or assessment
of personnel by the Commonwealth, by Norfolk Island or by an
agency.”
The FOI Guidelines at paragraph [6.114] state the fol owing in respect of section 47E(c):
“For this exemption to apply, the documents must relate to either:
-
the management of personnel – including the broader human resources
policies and activities, recruitment, promotion, compensation, discipline,
harassment and occupational health and safety
-
the assessment of personnel – including the broader performance
management policies and activities concerning competency, in-house
training requirements, appraisals and underperformance, counsel ing,
feedback, assessment for bonus or eligibility for progression (footnotes
omitted).”
Staff names and direct contact information
Parts of the document have been identified as being exempt under section 47E(c). This material
contains the names and direct contact information of AFP staff below the level of Senior Executive
Service.
The AFP is a key agency responsive for Australia’s National Security Framework. Primary areas of
the AFP responsibility include:
• federal policing: protecting Australian’s from the threat of terror attach, investigating
and prosecuting large-scale internal drug trafficking and serious organised crime;
• national security: security airports, Parliament, key Commonwealth establishments and
keeping Australian and foreign dignitaries safe; and
• international police assistance.
The AFP receives around 800 FOI requests annual y and is required by the Act to publish the
documents it releases on its disclosure log with limited exceptions. Even if information is not
published on the Disclosure Log, the Act does not limit or restrain the further dissemination of
that information by applicants or ensure the security of the information in future. The
internet al ows any person to publish information online, which becomes a permanent record
that is available to anyone in the world.
The information I have identified as conditionally exempt could publicly identify staff not only
as working for the AFP, but their work location and activities. The permanence of an online
footprint means that information online can impact an individual in the future. In that regard,
I note that AFP staff typically work across different areas of the agency in their careers and
may work in operationally areas with increased risk the future.
Through a specific online picture gained by linking information released under the Act to
information that is available online or in public records, now or in the future, those who wish
to harm an employee could identify them and potential y approach them in the community.
This risk is not far-fetched. In September 2014, Australia’s national security threat level was
raised to probable, and law enforcement employees have been target of particular planned
and actual attacks in Australia. There is therefore a current heightened threat to both
operational and non-operational employees of the AFP.
The AFP has a primary duty of care to ensure, so far as reasonably practicable, the health and
safety of workers and others who may be affected by the AFP’s business or undertaking.
Among other things, this duty requires the AFP to take steps to eliminate, or if elimination is
not possible, manage risks to the health and safety of AFP personnel while at work. The
release of names of AFP personnel, particularly with their contact details, could easily allow
for their identities to be ascertained. If staff identities are ascertained, there is not only an
immediate risk to their health and safety, but an ongoing risk as once their identity is
disclosed to the public, that information cannot be retracted or its further circulation
controlled. Therefore, releasing names not only presents an immediate risk to AFP personnel,
but the loss of control of the information presents an ongoing risk which undermines the
AFP’s ability to continue to manage the health and safety of staff.
I consider that release of this information, in response to this request, would therefore have a
significant effect on the wellbeing and morale of staff, which, in turn, impacts the AFP’s ability
to recruit and maintain personnel. Members should be confident that the AFP is taking all
possible steps to ensure they are safe from harm as a result of their work, including ensuring
that their identity as AFP employees is not released in an unrestricted way. Accordingly, I am of
the opinion that to release this information could have a substantial adverse effect on the
conduct of management of personnel within the AFP.
However, I must give access to this information unless, in the circumstances, access at this time
would be contrary to the public interest.
I have considered the following factors favouring disclosure:
(a)
the general public interest in access to documents as expressed in sections 3 and
11 of the Act; and
(b)
the public interest in people being able to scrutinise the operations of a
government agency and in promoting governmental accountability and
transparency.
I have considered the following factor favouring disclosure:
(c)
prejudice to the safety and welfare of AFP personnel;
(d)
prejudice to the AFP’s ability to comply with work health and safety obligations;
and
(e)
release may have a substantial adverse effect on the management of personnel in
future.
While there is a public interest in providing access to documents held by the AFP, consequently,
I have given greater weight to factors (c) to (e) above, and conclude that on balance, disclosure
is not in the public interest.
The name of a CSC employee has also been exempted from the document (see top of Folio 2).
Further to consultations, and the general principles outlined above, I am satisfied that
disclosure of this information is not in the public interest.
Accordingly, I find these parts of the document exempt under section 47E(c) of the Act.
***YOU SHOULD READ THIS GENERAL ADVICE IN CONJUNCTION WITH THE LEGISLATIVE
REQUIREMENTS IN THE FREEDOM OF INFORMATION ACT 1982***
REVIEW AND COMPLAINT RIGHTS
If you are dissatisfied with a Freedom of Information decision made by the AFP, you can apply
either for internal review of the decision, or for a review by the Information Commissioner (IC).
You do not have to apply for internal review before seeking review by the IC.
For complaints about the AFP’s actions in processing your request, you do not need to seek
review by either the AFP or the IC in making your complaint.
REVIEW RIGHTS under Part VI of the Act
Internal review by the AFP
Section 54 of the FOI Act gives you the right to apply for internal review of this decision. No
particular form is required to make an application for internal review, however, an application
needs to be made in writing within 30 days of this decision. It would assist the independent AFP
decision-maker responsible for reviewing the file if you set out in the application, the grounds on
which you consider the decision should be reviewed.
Section 54B of the FOI Act provides that the internal review submission must be made within
30 days. Applications may be sent by email
(xxx@xxx.xxx.xx) or addressed to:
Freedom of Information
Australian Federal Police
GPO Box 401
Canberra ACT 2601
REVIEW RIGHTS under Part VII of the Act
Review by the Information Commissioner
Alternatively, section 54L of the FOI Act gives you the right to apply directly to the IC for review of
this decision. In making your application you will need to provide an address for notices to be
sent (this can be an email address) and a copy of the AFP decision.
Section 54S of the FOI Act provides the timeframes for an IC review submission. For an
access
refusal decision covered by section 54L(2), the application must be made within 60 days. For an
access grant decision covered by section 54M(2), the application must be made within 30 days.
Applications for IC review may be lodged by email
(xxxxx@xxxx.xxx.xx), using the OAIC’s online
application form (available a
t www.oaic.gov.au) or addressed to:
Office of the Australian Information Commissioner
GPO Box 5128
Sydney NSW 2001
The IC encourages parties to an IC review to resolve their dispute informal y, and to consider
possible compromises or alternative solutions to the dispute in this matter. The AFP would be
pleased to assist you in this regard.
Complaint
If you are unhappy with the way we have handled your FOI request, please let us know what we
could have done better. We may be able to rectify the problem. If you are not satisfied with our
response, you can make a complaint to the IC. A complaint may be lodged using the same
methods identified above. It would assist if you set out the action you consider should be
investigation and your reasons or grounds.
More information about IC reviews and complaints is available on the OAIC’s website at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
