Our ref: FOI-2022-10073 & OMBFOI-2022-111784
24 November 2022

Tong Maguire
Emailed to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Tong Maguire
Freedom of Information request – Part access grant decision
I refer to your request of 12 July 2022 to this Office under the Freedom of Information Act 1982 (FOI
Act) for access to documents made in the fol owing terms:

“I request access to:

- any email dated in the inclusive date range of 1 July 2021 – to the date of this FOI
application; and

- that contains the word "Gaetjens" (be it in the subject line, the body of an email or in the
addressee field of an email); and

- that is contained within the email accounts of any of the following Office of the
Commonwealth Ombudsman officers:

i) Penny Mackay;

ii) Lisa Collett;

iii) Sine Dellit;”

Your request
On 14 July 2022, the Office acknowledged your FOI request.
On 28 September 2022, you applied to the Office of the Australian Information Commissioner (OAIC)
for Information Commissioner review of a deemed refusal decision (IC Review).
On 12 October 2022, our Office wrote to you and offered our apologies to you for the delay in
processing your request. We advised that we would endeavour to provide you with a decision on
your request on or before Friday 25 November 2022.
Our Office received notice of your IC Review application on 2 November 2022.
This is my revised decision of the deemed access refusal decision under s 55G of the FOI Act.
Decision
I am an officer authorised under s 23 of the FOI Act to make decisions in relation to FOI requests.
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I have identified thirty nine (39) documents, totalling 356 pages, relevant to your request. I have
decided:
•  To give access to two (2) documents in full and thirty four (34) documents in part;
•  To refuse access to three (3) documents as they are ful y exempt;
A schedule setting out my decision in relation to the relevant documents is at Attachment A.
My reasons for not giving access to some material are set out at Attachment B to this letter.

Document searches and understanding of your request
Our Office identified the documents by searching our electronic records management systems and
also email systems, including Outlook, for the relevant staff members that you have identified in
your request and searching for the term ‘Gaetjens.’
Review rights
Information about your review rights is at Attachment C.
Contacts
You may contact me via email at xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx or via telephone on
1300 362 072.
Yours sincerely

Steven Mulipola
Senior Legal Officer
Legal Team
Influencing systemic improvement in public administration

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ATTACHMENT B
Reasons for decision – FOI-2022-10073

Material taken into account
In making my decision I had regard to the fol owing:

•  the terms of your request dated 12 July 2022;
•  the content of the documents to which you sought access;
•  advice from other, relevant Ombudsman officers;
•  relevant provisions of the FOI Act;
•  Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act,
available at www.oaic.gov.au (FOI Guidelines); and

•  Relevant case law.
Findings of fact and reasons for decision
Where the schedule of documents at Attachment A indicates that an exemption has been applied to
a document, or part of a document, my findings of fact and reasons for deciding that the exemption
provision applies to that document, or part of that document, are set out below.

Section 37 exemption - Documents affecting enforcement of law and protection of public safety
I have decided that section 37 of the FOI Act applies to exempt the document/s from release.
Section 37(1) of the FOI relevantly provides that documents are exempt if disclosure would or could
reasonably be expected to:
(a)  prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure,
or possible failure, to comply with a law relating to taxation or prejudice the enforcement or
proper administration of the law in a particular instance
(b)  disclose, or enable a person to ascertain, the existence or identity of a confidential source of
information, or the non-existence of a confidential source of information, in relation to the
enforcement or administration of the law; or
The FOI Guidelines [5.92] explain that s 37(1)(b) applies where:
1. the information in question may enable the agency responsible for enforcing or administering
a law to enforce or administer it properly;
2. the person who supplies that information wishes his or her identity to be known only to those
who need to know it for the purpose of enforcing or administering the law; and
3. the information was supplied on the understanding, express or implied, that the source’s
identity would remain confidential.
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I am satisfied that the relevant document/s relates to a complaint made under the Ombudsman Act
1976 (Cth) in relation to an investigation being conducted by the Ombudsman about a breach of the
law that is not otherwise public. I am also satisfied that disclosure would or could reasonably be
expected to prejudice the conduct of that investigation: OAIC; FOI Guidelines at [5.86].
I am also satisfied document contains the name of relevant complainants to the Ombudsman and
could disclose or enable a person to ascertain the existence of that confidential source. This would
impede the ability of the Ombudsman to receive and investigate complaints under the Ombudsman
Act 1976 (Cth), and would discourage the public from making complaints, particularly if
complainants knew their identity would be disclosed.
Conditional exemption – certain agency operations: s 47E
Section 47E of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to,:
…
(c)
have a substantial adverse effect on the management or assessment of personnel by
the Commonwealth or an agency, or
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of the agency.
Would, or could reasonably be expected to, have a substantial adverse effect
Certain information in the documents is in the nature of staff names and contact details, including
direct email addresses and phone numbers. The information relates to both junior and senior
executive service level staff.
Disclosure of such information could have a substantial adverse effect on the operations of the
agency. In circumstances where the identity of the applicant is not known, that junior staff including
below senior executive service level have not consented to their disclosure, and having regard to the
protection of staff and the Office’s safety and work, health and safety obligations, I am satisfied that
disclosure could reasonably be expected to have a substantial adverse effect on the management of
personnel: ‘NN’ and Department of Human Services (Freedom of information) [2018] AICmr 1.

I have concluded that disclosure of a complaint could reasonably be expected to have a substantial
adverse effect on the operations of the Ombudsman. The preservation of confidentiality is critical to
the Ombudsman’s administration of the Ombudsman Act 1976 (Cth), including documents relating
to complaints, and disclosure would have a substantial adverse effect on the ability of the
Ombudsman to effectively administer its functions: Australian Broadcasting Corporation and
Commonwealth Ombudsman [2012] AICmr 11.
The FOI Guidelines expressly state at 6.122 in relation to s 47E(d) that:
The exemption may also apply to documents that relate to a complaint made to an investigat
ive body. The disclosure of this type of information could reasonably affect the willingness of
people to make complaints to the investigative body, which would have a substantial adverse
effect on the proper and efficient conduct of the investigative body’s operations.
Public interest test
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In considering whether access would, on balance, be contrary to the public interest, I have
considered the factors for and against disclosure, including the factors identified in s 11B(3) of the
FOI Act. I have also considered the public interest factors favouring and against disclosure in the FOI
Guidelines [6.17 – 6.19] and [6.22].

Factors favouring disclosure include that disclosure would:

•  Promote the objects of the FOI Act, including to:
o  inform the community of the Government’s operations, including, in particular, the
practices fol owed by the Government in its dealings with members of the
community;
o  reveal the reason for a government decision and any background or contextual
information that informed the decision;
o  enhance the scrutiny of government decision making.

Factors against disclosure include that disclosure:

•  Could reasonably be expected to prejudice the fair treatment of individuals and the
information is about unsubstantiated al egations of misconduct or unlawful, negligent or
improper conduct;
•  Could reasonably be expected to prejudice security, law enforcement, or public safety;
•  Could reasonably be expected to impede the administration of justice generally, and for an
individual, including procedural fairness;
•  Could reasonably be expected to prejudice the conduct of investigations by the Ombudsman
(see FOI Guidelines 6.22).

On balance, I consider that the factors against disclosure outweigh the factors in favour of
disclosure.

Conditional exemption – personal privacy: s 47F
Section 47F of the FOI Act conditionally exempts a document to the extent that its disclosure would
involve the unreasonable disclosure of personal information about any person.

Personal information

‘Personal information’ is defined in section 4 of the FOI Act as:

information or an opinion about an identified individual, or an individual who is reasonably
identifiable: (a) whether the information or opinion is true or not; and (b) whether the
information or opinion is recorded in a material form or not.

The elements and aspects of personal information are:
1. It relates only to a natural person (for example, not a company);
2. It says something about an individual;
3. It may be in the form of an opinion, it may be true or untrue, and it may form part of a
database; and
4. The individual’s identity is known or is reasonably identifiable using the information in the
document.

The documents contain personal information in the form of names, position titles and contact details of
junior and senior members of the Ombudsman staff.
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The name and contact details of members of the public – who are not a media company or personality -
are also included in one document, whose identity is readily ascertainable. This includes complainants to
the Ombudsman.

I am satisfied that the relevant information constitutes personal information as defined in s 4 of the FOI
Act. The identity of the relevant individuals is reasonably identifiable from the relevant information.

Disclosure unreasonable

If information is personal information, it will be conditionally exempt if its disclosure would be
‘unreasonable’. In considering whether disclosure would be unreasonable, subsection 47F(2) of the
FOI Act requires me to take into account:

1. The extent to which the information is well known;
2. 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;
3. The availability of the information from publicly accessible sources; and
4. Any other matter I consider relevant.

The relevant information is not well known. The individuals to whom the information relates are not
generally known to be associated with the relevant information. The relevant information is not
readily available from public sources, particularly direct contact details. The relevant names and position
titles are specific to the relevant individuals.

Relevant to personal information of public servants, under the FOI Act there is no presumption that
agencies and ministers should start from the position of inclusion of ful names of staff documents
increases transparency and the objects of the FOI Act: Warren; Chief Executive Officer, Services Australia
and (Freedom of Information) [2020] AATA 4667, [83]. With the substantial increase in electronic
requests, a rise in anonymous requests, as well as requests affecting the safety and wellbeing of
employees the Office and OAIC now assesses whether disclosure of a public servant’s personal
information is unreasonable under s 47F of the FOI Act.

In my view, disclosure of junior staff members’ names and the direct staff contact details of al levels of
staff, including email addresses and phone numbers, could subject the relevant staff to the possibility of
inappropriate contact from complainants or other individuals dissatisfied by their dealings with this
Office. This, in turn, could reasonably be expected to have a substantial adverse effect on the relevant
personnel and to the management of those personnel within this Office.

Some information concerns members of the public – such as complainants to the Ombudsman - including
their name, contact details and date of birth, and having regard to the fact that the identity of the FOI
applicant is not known, I consider that such disclosure would be unreasonable.

For the reasons set out in this decision, I have formed the view that the names and contact details of
staff, members of the public and Ombudsman complainants is conditionally exempt under s 47F(1) of the
FOI Act. In my view, release of such information would involve the unreasonable disclosure of personal
information.

Public interest test

In deciding whether access should be given to this information on the basis of public interest I have
taken a number of matters into account. These matters include the public interest factors for and
against disclosure as outlined in s 11B(3) of the FOI Act, the FOI Guidelines, as well as matters specific to
this agency’s functions and operating environment.
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Factors favouring disclosure

The fol owing factors favour disclosure:

•  Access would promote the objects of the FOI Act, as explained above;
•  Access could enhance the scrutiny of the Ombudsman’s inquiry and investigative functions and
processes under the Ombudsman Act;

Factors against disclosure

The fol owing factors mitigate against disclosure:
•  Could reasonably be expected to prejudice the protection of a person’s right to privacy;
•  Could reasonably be expected to prejudice security, law enforcement, public health or public
safety
•  There is a public interest in APS staff performing their obligations under the Work, Health and
Safety Act 2011 (Cth) in particular from unjustified or unwarranted direct contact from members
of the public;
•  Disclosure of the relevant material could reasonably be expected to result in inappropriate
contact resulting in inefficiencies in this Office.

I have given particular weight to the protection of a person’s right to privacy. Pursuant to subsection
11A(5) of the FOI Act, I have concluded that the relevant material is not required to be disclosed because
disclosure at this time would be, on balance, contrary to the public interest.
Deletion of exempt/irrelevant matter: s 22
Section 22 of the FOI Act allows an agency to delete exempt/irrelevant matter from a document
which is otherwise relevant to an applicant’s FOI request and to provide an applicant with access to
an edited copy.
As I have found that parts of documents relevant to your request contain information which is
exempt, conditional y exempt and exempt, and I have deleted that information accordingly. You wil
be provided with access to appropriately edited versions of the documents.
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Attachment B
Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
1.
  01/12/2021
6/1
Email from the Canberra Times to Penny
Part Release
Section 47E(d) – public interest
Mackay, OCO

conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
2.
  16/08/2021
2/2
Email from Events Team, Australian Public
Part release
Section 22 – redactions for
Service Commission

exempt or irrelevant matter
have been applied
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
3.
  12/09/2021
3/3
Email from Penny McKay to OCO staff member   Part release
Section 22 – redactions for
exempt or irrelevant matter
have been applied
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material

Section 47F – public interest
conditional exemption –
personal privacy
4.
  30/05/2022
2/4
Email from the Canberra Times Public Service
Part release
Section 47E(d) – public interest
Team to Penny McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
5.
  23/05/2022
2/5
Email from the Canberra Times to Penny
Part release
Section 47E(d) – public interest
McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
6.
  12/11/2021
4/6
Email from Director, Complaints Management
Exempt
Section 37(1) – disclosure could
to Penny McKay
affect investigations and
confidential sources
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47F – public interest
conditional exemption –
personal privacy
7.
  10/12/2021
8/7
Complaint to Ombudsman
Exempt
Section 37(1) – disclosure could
affect investigations and
confidential sources
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
8.
  04/02/2022
2/8
Email from Australian Public Service
Part release
Section 47E(d) – public interest
Commission to Penny McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
10

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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
9.
  09/12/2021
6/9
Email from The Canberra Times to Penny
Part release
Section 47E(d) – public interest
McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
10.    27/09/2021
5/10
Email from The Canberra Times to Penny
Part release
Section 47E(d) – public interest
McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
11.    04/02/2022
04/11
Email from Penny McKay to OCO staff
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
12.    02/09/2021
1/12
Email from Australian Public Service
Part release
Section 47E(d) – public interest
Commission to Penny cKay
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47F – public interest
conditional exemption –
personal privacy
13.    22/11/2021
4/13
Email from Institute of Public
Part release
Section 47E(d) – public interest
Administration (IPAA) ACT to Penny McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy

14.    01/12/2021
4/14
Email from IPAA ACT to Penny McKay
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
15.    17/11/2022
5/15
Email from IPAA ACT to Penny McKay
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47F – public interest
conditional exemption –
personal privacy
16.
28/01/2022
05/16
Email from IPAA ACT to Penny McKay
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy

17.
29/06/2022
05/17
Email from IPAA ACT to Penny McKay
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
18.
05/04/2022
1/18
Email from staff at Attorney-General’s
Part release
Section 47E(d) – public interest
Department to Penny McKay and others –
conditional exemption – certain
Open letter to the APS
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47F – public interest
conditional exemption –
personal privacy
Section 22 – redactions for
exempt or irrelevant matter
have been applied

19.
22/12/2022
2/19
Email from Phil Gaetjens to Undisclosed
Part release
Section 47E(d) – public interest
recipients – Seasons Greetings , Phil
conditional exemption – certain
Gaetjens, Department of Prime Minister
operations of agencies
and Cabinet
Section 47F – public interest
conditional exemption –
personal privacy
20.
09/12/2021
6/20
Email from The Mandarin to Penny McKay  Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
21.
31/05/2022
8/21
Email from The Mandarin to Penny McKay  Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
24.
26/10/2021
6/23
Email from The Mandarin to Penny McKay  Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
25.
17/12/2021
5/25
Email from The Mandarin to Penny McKay  Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
26.
03/11/2021
6/26
Email from The Canberra Times to Penny
Part release
Section 47E(d) – public interest
McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
27.
01/06/2022
5/27
Email from Canberra Times Public Service
Part release
Section 47E(d) – public interest
Team
conditional exemption – certain
operations of agencies
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47F – public interest
conditional exemption –
personal privacy
28.
15/12/2021
6/28
Email from Canberra Times Public Service
Part release
Section 47E(d) – public interest
Team
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
29.
23/05/2022
3/29
Email from Penny McKay to OCO senior
Part release
Section 47E(d) – public interest
executive staff
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
30.
13/08/2021
5/30
Email from The Mandarin to Penny McKay  Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
31.
12/07/2021
5/3
Email from Executive Assistant to Penny
Part release
Section 47E(d) – public interest
McKay OCO senior executive staff
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
32.
12/11/2022
4/32
Email from Penny McKay to senior
Part release
Section 47E(d) – public interest
executive staff
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
33.
01/12/2022
5/33
Email from The Canberra Times to Penny
Part release
Section 47E(d) – public interest
McKay
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
34.
14/12/2021
11/34
Email from OCO staff to Penny McKay re:
Exempt
Section 37(1) – disclosure could
complaint
affect investigation and
confidential sources
ATTACHING: complaint
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Schedule of documents – Freedom of Information Request FOI -2021 - 10073
Doc
Date
Pages/
Description of Document
Decision on
Exempt or irrelevant
No.
Folio
access
material
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
35.
19/07/2022
3/35
Email from OCO Legal Team to Sine Dellitt,  Part release
Section 47E(d) – public interest
Senior Legal Officer, and Lisa Collett
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
36.
13/7/2022
4/36
Email from IPAA ACT to Lisa Collett
Part release
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
Section 47F – public interest
conditional exemption –
personal privacy
37.
12/07/2021
121/37
Email from OCO staff to senior executive
Part release
Section 22 – redactions for
service – MM’s farewell gift
exempt or irrelevant matter
applied
With Attachment ‘Blog.docx’
Section 47E(d) – public interest
conditional exemption – certain
operations of agencies
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ATTACHMENT C
REVIEW RIGHTS

Internal review
You can request internal review within 30 days of you receiving this decision. An internal review will
be conducted by a different officer from the original decision-maker.
No particular form is required to apply for review although it wil  assist your case to set out the
grounds on which you believe that the original decision should be changed. Applications for internal
review can be made:
•  via email to xxxxxxxxxxx.xxxxxx@xxxxxxxxx.xxx.xx
•  by mail to Commonwealth Ombudsman GPO Box 442 Canberra ACT 2601
If you choose to seek an internal review, you will afterward have a right to apply for Information
Commissioner review (IC review) of the internal review decision.
Information Commissioner review or complaint
You also have the right to seek IC review of this decision. For FOI applicants, an application for IC
review must be made in writing within 60 days of the decision. For third parties who object to
disclosure of their information, an application for IC review must be made in writing within 30 days
of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a
complaint with the OAIC.  However, the OAIC suggests that complaints are made to the agency in
the first instance.
While there is no particular form required to make a complaint to the OAIC, the complaint should be
in writing and set out the reasons for why you are dissatisfied with the way your request was
processed. It should also identify the Ombudsman’s Office as the agency about which you are
complaining.
You can make an IC review application or make an FOI complaint in one of the fol owing ways:
•  online at https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
•  via email to xxxxx@xxxx.xxx.xx
•  by mail to GPO Box 5218 Sydney NSW 2001, or
•  by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is available
at its website: www.oaic.gov.au/freedom-of-information/foi-review-process.

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Document Outline