Alex
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: <SHC22-27965> <LEX128>
Dear Alex
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 8 May 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. Your full request is enclosed.
4. I have identified one document relevant to your request.
Decision
5. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
6. I have decided parts of the document are exempt from release on the grounds identified at
Attachment A. Subjected to section 22 of the FOI Act, a copy of the document provided
has been edited to remove material I consider exempt from release.
7. My reasons are set out in
Attachment B.
8. While my full reasons are set out at
Attachment B, I emphasise:
• I consider release of the information in the document would jeopardise the
confidentiality regime established by the
Public Interest Disclosure Act 2013. There is
no legislative or regulatory regime that requires the disclosure of the document
requested. Rather, disclosure of the information would likely breach the Commission’s
privacy and confidentiality obligations under the Commonwealth Public Interest
Disclosure scheme.
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
• The information published in the articles by
The Australian has not been publically
disclosed, published or authorised by the Commission. The Commission has not at any
stage publically commented as to whether what was published in the article is or is not
an accurate reflection of the Commission’s records.
• I have been advised that the level of personal information already published in media
articles by
The Australian and on the Right to Know website has caused the concerned
persons harm and distress. Due to the level of attention brought about by the articles,
disclosure of any personal information could reasonably be expected to interfere with
the privacy of individuals. It follows I consider it would be unreasonable to disclose the
personal information in the document, given it is likely to lead to further harm and
distress for those people and possibly others.
• The document concerns a current, ongoing, unfinalised investigation by the
Commonwealth Ombudsman. Disclosure may have a substantial adverse effect on the
Commonwealth Ombudsman’s ability to undertake its investigations in accordance
with the
Ombudsman Act 1976.
• The oversight of the Commonwealth Public Interest Disclosure scheme is a
responsibility of the Commonwealth Ombudsman. I do not consider the information
in the documents would be of serious concern or benefit to the public. In my view, it
would merely satisfy the curiosity of others, which is not a consideration of the public
interest test.
Contacts
9. 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 a
t xxx@xxxx.xxx.xx
Review rights
10. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
Giorgina Strangio
Authorised FOI decision maker
31 May 2022
ATTACHMENT A
SCHEDULE OF DOCUMENTS
D
ocument
Description
Basis of redaction
Public Interest Disclosure investigation report authored by Kate McMullan, A/g
Sections 47E(c) and 47E(d)
1
Assistant Commissioner Integrity Performance Employment Policy on
(operations of an agency), and 47F
9 December 2020.
(personal privacy) of the FOI Act
apply.
ATTACHMENT B
Reasons for decision
1. I have decided to refuse access to parts of the document you requested.
2. In making my decision I considered:
• the terms of your request;
• the contents of the document;
• the
Public Interest Disclosure Act 2013 (PID Act);
• the
Public Service Act 1999 (PS Act);
• the
Ombudsman Act 1976 (Ombudsman Act);
• the FOI Act;
• legal advice; and
• the FOI Guidelines issued by the Australian Information Commissioner under section
93A of the FOI Act, as published on the Office of the Australian Information
Commissioner (OAIC) website.
Sections 47E(c) and 47E(d) FOI Act – Certain operations of agencies
3. Sections 47E(c) and 47E(d) of the FOI Act provide that a document is conditionally
exempt from disclosure if its disclosure would, or could be reasonably expected to, have a
substantial adverse effect on the management or assessment of personnel by an agency, or
on the proper and efficient conduct of the operations of an agency.
4. The Australian Public Service Commissioner (Commissioner) and his delegates have a
number of inquiry functions under the PS Act, including in relation to the investigation of
certain public interest disclosures under the PID Act.
5. It is important that the Commissioner and his delegates are able to properly undertake
activities under the PID Act. The PID scheme promotes integrity and accountability
across the Commonwealth public sector and provides a protected space for all current and
former public officials (‘disclosers’) to make disclosures relating to suspected
wrongdoing or misconduct.
6. I am satisfied activities relating to the PID scheme, and the document, relate to both:
• the management and assessment of staff within the Commission; and
• the operations of the Commission in respect to any alleged wrongdoing or misconduct
and the operations pertaining to the PID Act generally.
7. I have also considered that under the PID scheme:
• disclosers are supported and protected from civil, criminal or administrative liability
and reprisals;
• the identity of a discloser is protected under sections 20 and 21 of the PID Act; and
• information collected during the course of a PID investigation is protected under section
65 of the PID Act.
- 5 -
8. I understand that small parts of the document have been published via media articles behind
a subscriber paywall. However, to the best of my knowledge, the entirety of the report has
not entered the public domain. Noting that a release under the FOI Act is a release to the
world at large and this document has not previously entered the wider public domain, I
have made a decision to redact the majority of the content contained within the document.
9. Accordingly, I have decided that release of material contained within the document under
the FOI Act would likely undermine the confidentiality protections provided under the
PID scheme, and likely discourage current and former public officials to make PID
disclosures or to involve themselves in PID investigations. The success of any PID
investigation process relies heavily on the willingness of individuals to participate in the
PID scheme in a frank and candid manner.
10. Further, I consider that the release of the document would also likely have a larger effect
of inhibiting or discouraging Commission staff to freely and effectively communicate on
matters relating to the PID Act, including in the consideration and assessment of material
subject to a PID investigation. Should individuals be unwilling or unable to effectively
participate in the PID scheme, I consider that this would ultimately have a substantial
adverse effect on the Commission’s ability to carry out its obligations under the PID Act,
including its ability to ensure that allegations of misconduct are being investigated and,
where necessary, take appropriate action in a proper and efficient manner.
11. I note that the importance of protecting information collected during a PID investigation
process was upheld in the recent Information Commissioner (IC) decision of ‘
YU’ and
Bureau of Meteorology (Freedom of Information) [2021] AICmr75 (29 November 2021),
where the IC accepted the relevant agency’s submissions that certain operations of the
agency could be undermined if the confidentiality established under the PID Act was
circumvented by an access application made under the FOI Act.
12. I consider release of the information in the document would jeopardise the confidentiality
regime established by the PID Act. There is no legislative or regulatory regime that requires
the disclosure of the document requested. Rather, disclosure of the information would
likely breach the Commission’s privacy and confidentiality obligations under the PID Act.
13. Further, the document concerns a current, ongoing, unfinalised investigation by the
Commonwealth Ombudsman (Ombudsman).
14. I consider disclosure of the document would have a substantial adverse effect on the
ability of the Ombudsman to undertake its investigations, which are undertaken in private
in accordance with section 8 of the Ombudsman Act and the confidentiality provisions set
out in section 35 of the Ombudsman Act. These provisions require and protect the
confidentiality of information held by the Ombudsman in relation to Ombudsman
investigations.
15. I also consider disclosure of the document would have the following substantial adverse
effects on the Ombudsman’s operations:
• Disclosure would discourage complainants from contacting the Ombudsman out of
concern that it is not possible to keep relevant investigation information confidential.
Where the requested document relates to an open complaint concerning an ongoing
- 6 -
investigation, disclosure is likely to undermine effective oversight by the
Ombudsman.
• Disclosure of the relevant document would discourage agencies or members of the
public from providing information to the Ombudsman’s office in relation to an
investigation. The likely effect of this would impede the Ombudsman’s ability to
conduct thorough, efficient investigations availed of all relevant facts and
information.
16. I have therefore decided disclosure of information relating to allegations, inquiries and
investigations under the PID scheme and under the Ombudsman Act would, or could
reasonably be expected to, have a substantial adverse effect on the management or
assessment of public servants and on the proper and efficient conduct of the operations of
the Commission and the Ombudsman.
Section 47F FOI Act – Personal privacy
17. Section 47F of the FOI Act provides a document is conditionally exempt if its disclosure
would involve the unreasonable disclosure of personal information of any person.
18. 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
• whether the information or opinion is recorded in a material form or not.
19. The document contains the names and other personal information of Australian Public
Service (APS) staff, or prospective staff, who were considered as part of the PID
investigation, including information about their qualifications and employment history.
20. Having regard to the matters I must consider under subsection 47F(2) of the FOI Act, I
have identified the following factors that do not support release of the personal
information contained in the document:
• the personal information will identify the individuals, whom are not known to be (or to
have been) associated with the matters dealt with in the document;
• it would prejudice the relevant persons’ right to privacy;
• release of the information may negatively impact the ability of the relevant persons to
perform their current role and adversely affect their mental health by linking them to
allegations set out in articles published in the media;
• release may expose the relevant persons to being subject to further media articles or
public speculation;
• the disclosure of information about persons who may be the subject of certain
allegations, including unsubstantiated allegations are not matters that concern normal
duties or responsibilities (‘
BA’ and Merit Protection Commissioner [2014] AICmr 9);
• release of the individual’s information in connection with the subject matter of the
document would likely cause them stress or other detriment;
• the FOI Act does not control or restrict the subsequent use or dissemination of
information released under the FOI Act; and
- 7 -
• disclosure would be contrary to the confidentiality protections afforded under the PID
Act and the associated policies, procedures and expectations which those individuals
would expect to be protected by.
21. The information published in the articles published by
The Australian has not been
publically disclosed, published or authorised by the Commission. The Commission has not
at any stage publically commented as to whether what was published in the article is or is
not an accurate reflection of the Commission’s records.
22. I am advised that the level of personal information that has been published in media articles
by
The Australian and on the Right to Know website has caused the concerned persons
harm and distress. Due to the level of attention brought about by the articles published by
The Australian disclosure of any personal information could reasonably be expected to
further interfere with the privacy of individuals. It follows I consider it would be
unreasonable to disclose the personal information in the documents given it is highly likely
to lead to further harm and distress for those people and possibly others.
23. I have therefore decided to the extent that the document includes personal information,
those parts are conditionally exempt from disclosure under section 47F of the FOI Act
because disclosure would involve the unreasonable disclosure of multiple persons’
personal information.
Section 11B FOI Act - Public Interest Test
24. I have found parts of the document are conditionally exempt under sections 47E(c),
47E(d) and 47F of the FOI Act.
25. 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.
Factors in favour of disclosure
26. Subsection 11B(3) of the FOI Act lists factors favouring access to a document in the
public interest, which I must consider if relevant. Of these factors I consider the following
to be relevant:
• access would promote the objects of the FOI Act;
• access would inform debate on a matter of public importance; and
• access would promote effective oversight of public expenditure.
27. I have identified the following additional factors in favour of providing access to the
document:
• access could allow or assist inquiry into the conduct or administration of an APS agency
or public official; and
• access could enhance the scrutiny of the Commissioner’s inquiry functions and
processes under the PS Act and the PID Act.
- 8 -
Factors against disclosure
28. There are a number of factors already identified in my reasons that weigh against a finding
that it would be in the public interest to disclose such information. I have identified, in
particular, the following public interest factors which weigh against providing access to the
document:
• access could reasonably be expected to prejudice the privacy of the individuals
considered in the document, and cause them harm and distress;
• access could be expected to undermine the confidentiality and secrecy provisions which
are fundamental pillars of the PID scheme;
• access could be expected to adversely affect the management and assessment of staff
of the Commission;
• access could diminish the future flow of information to the Commissioner from
disclosers, complainants, witnesses, staff and other third parties; and
• access could be expected to adversely affect the proper and efficient operations of the
Commissioner and the Commission in performing statutory functions and powers under
the PS Act and the PID Act.
29. The FOI Guidelines provide at paragraph 6.5 that the public interest test is considered to
be:
• something that is of serious concern or benefit to the public, not merely of individual
interest
• not something of interest to the public, but in the interest of the public
• not a static concept, where it lies in a particular matter will often depend on a balancing
of interests
• necessarily broad and non-specific,
and
• related to matters of common concern or relevance to all members of the public, or a
substantial section of the public
.
30. I do not consider the information in the documents would be of serious concern or benefit
to the public. In my view, it would merely satisfy the curiosity of others.
Irrelevant factors
31. 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.
Conclusion
32. I consider the public interest factors weigh strongly against disclosure of the conditionally
exempt material in the document. The specific details of the PID investigation, including
the disclosure of sensitive personal information and the likely substantial adverse effect
on the Commissions’ PID scheme operations outweigh the public interest factors
favouring disclosure.
33. On balance, I have decided that disclosure of the conditionally exempt material in the
document would be contrary to the public interest. To the extent that the material
- 9 -
contained in the document is conditionally exempt under sections 47E(c), 47E(d) and
section 47F of the FOI Act, those parts of the requested document are therefore
conditionally exempt from disclosure under the FOI Act.
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
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
