Our reference: FOIREQ22/00164
Attention: Julie
By Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information Request – FOIREQ22/00164
Dear Julie
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (Cth) (the FOI Act) and received by the Office of the Australian Information
Commissioner (OAIC) on 1 July 2022.
In your request you seek access to the fol owing:
“I request under the Freedom of Information Act copy of documents relating to any
code of conduct review/s conducted by the OAIC.
It would be more efficient and cost effective however for the OAIC to produce a s 17
document (like done here
https://www.righttoknow.org.au/request/6767/response/19110/attach/4/FOI%203841
2%20Document%20created%20in%20accordance%20with%20section%2017%20of%2
0the%20FOI%20Act%20final.pdf ) instead that lists:
- the number of such code of conduct reviews carried out by the OAIC, listed by topic
(Conflict of interest; Honesty and integrity; procedural fairness; respect, courtesy and
harassment; unauthorised access to information; other)
- the number of code of conduct reviews carried out by the OAIC listed by outcome
(sanction/warning; withdrawn/closed without adverse finding)”
On 7 July 2022, Ms Janani Balasubramanian of the OAIC acknowledged your request and
requested the fol owing clarification:
“Please kindly advise by close of business on Monday 11 July 2022
whether you are
requesting documents for code of conduct reviews in relation to a defined time period?
If so, please specify the date range. The APS Code of Conduct breach procedure is
linked here for your reference.”
On 16 July 2022, you responded with the fol owing:
1300 363 992
T +61 2 9284 9749 GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666 Sydney NSW 2001 ABN 85 249 230 937
“I limit the scope of my request to the last 50 Code of Conduct reviews carried out by
the OAIC.”
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
A document has been created in response to your request under s 17 of the FOI Act. I
have decided to refuse your access to this document in full.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 1 July 2022;
• your limiting of the scope of your request dated 16 July 2022;
• the document at issue;
• the FOI Act, in particular s 47E(c);
• the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (the FOI Guidelines), and;
• relevant case law
Requests involving use of computers (s17)
Section 17 requires an agency to produce a written document of information that is
stored electronical y and not in a discrete written form, if the agency could produce
the written document by the use of a computer or other equipment that is ordinarily
available to the agency for retrieving or col ating stored information. In retrieving
information relevant to your request, the relevant line area produced a document
under s 17 of the FOI Act, detailing the topic and outcome of code of conduct
reviews.
Personal Privacy (s 47F)
I have found the document exempt in full under s 47F of the FOI Act.
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Section 47F of the FOI Act conditionally exempts documents where disclosure would
involve the unreasonable disclosure of personal information of any person (including
a deceased person). This exemption is intended to protect the personal privacy of
individuals.
In the FOI Act, personal information has the same meaning as in the
Privacy Act 1988
(Cth) (Privacy Act). Under section 6 of the Privacy Act, personal information means:
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
I have considered whether the document created under s 17 of the FOI Act contains
personal information. I note that the document only includes the number of code of
conduct reviews by topic and outcome, however the statistical number of code of
conduct reviews is smal . When this information is combined with the fact:
• the OAIC is only a small agency of around 130 staff; and
• release of the document under FOI, via the right to know website, provides
public access to the document
the information could be used to identify the individual or individuals reported
within the document. For this reason, I consider the document created under s 17 of
the FOI Act contains personal information.
In determining whether disclosure of personal information would be unreasonable,
s47F(2) of the FOI Act requires me to have regard to the following matters:
a) the extent 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
d) any other matters I consider relevant.
In this instance, I consider that the information is not wel known, nor is it available
from publicly accessible sources. Recently, in
‘YC’ and Department of Foreign Affairs
and Trade (Freedom of information) [2021] AICmr 53 (13 October 2021) the disclosure
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link to page 4
of information in relation to a code of conduct investigation was found not to be
unreasonable in circumstances where the disclosure was to the person who made
the original complaint. However, I note the information you have requested is not
about you or a code of conduct review you were directly involved in. For these
reasons I consider the disclosure of the personal information would be
unreasonable.
The public interest test – s 11A(5)
An agency cannot refuse access to conditional y exempt documents unless giving
access would, on balance, be contrary to the public interest (s 11A(5)). The FOI
Guidelines explain that disclosure of conditionally exempt documents is required
unless the particular circumstances at the time of decision reveal countervailing
harm which overrides the public interest in giving access.
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, Deputy President
Forgie explained that
[4]:
… the time at which I make my decision for s 11A(5) requires access to be given
to a conditional y exempt document “at a particular time” unless doing so is, on
balance, contrary to the public interest. Where the balance lies may vary from
time to time for it is affected not only by factors peculiar to the particular
information in the documents but by factors external to them.
In this case, I must consider whether disclosure of the documents at this time would
be contrary to the public interest.
Section 11B(3) of the FOI Act lists factors that favour access to the document in the
public interest. I find the relevant factors to be the promotion of the objects of the
Act as stated in sections 3 and 3A, particularly the object to increase the scrutiny and
review of the Government’s activities as specified in s 3(2)(b) of the FOI Act, as well as
informing debate on a matter of public importance as specified in s 11B(3)(b) of the
FOI Act.
The FOI Guidelines provide a further non-exhaustive list of factors favouring
disclosure (see [6.19]). These factors include when disclosure will reveal the reason
for a government decision and any background or contextual information that
[4]
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission (Freedom of
information) [2017] AATA 269 [133].
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informed the decision and when disclosure will enhance the scrutiny of government
decision making. I acknowledge that information about the actions of public
servants and their behaviour under the Code of Conduct may enhance the scrutiny of
government decision making.
However, against these factors I must balance the factors against disclosure. The FOI
Act does not specify factors against disclosure, however the FOI Guidelines at
paragraph [6.22] provides a non-exhaustive list of factors against disclosure.
I consider that the relevant factors against disclosure in this instance are that the
disclosure of the material outlined above could reasonably be expected to prejudice
the affected individuals’ right to privacy.
In this case, I am satisfied that the public interest factors against disclosure outweigh
the public interest factor in favour of disclosure.
I have decided that at this time, giving you full access to the documents, which I have
found to be conditional y exempt under s 47F of the FOI Act, would, on balance, be
contrary to the public interest.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Emily Elliott
Senior Lawyer
1 August 2022
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request for
IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
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Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
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Document Outline
