Our reference: FOIREQ22/00204
Attention: Julie
By Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00204
Dear Julie
I am writing to advise you of my decision in response to your application for internal
review of the FOI decision made on 1 August 2022 in FOIREQ22/00164.
Original FOI Decision (FOIREQ22/00164)
On 1 July 2022, you applied to the Office of the Australian Information Commissioner
(OAIC) and sought access to the following:
“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%2038412%20D
ocument%20created%20in%20accordance%20with%20section%2017%20of%20the%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(sanction/warning; withdrawn/closed without adverse finding)”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 following 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.”
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
On 16 July 2022, you responded with the following:
“I limit the scope of my request to the last 50 Code of Conduct reviews carried out by the
OAIC.”
On 1 August 2022, the OAIC made its original decision. Ms Emily Elliott (the original
decision maker) identified one document in scope of your request, which was created
under s 17 of the
Freedom of Information Act 1982 (Cth) (FOI Act) in response to your
request. The OAIC refused you access to the document in full. In making the decision, the
OAIC relied on the personal privacy exemption (s 47F).
On 1 August 2022, you applied to the OAIC for internal review of the original decision under
s 54B of the FOI Act, writing the following:
I am writing to request an internal review of Office of the Australian Information
Commissioner's handling of my FOI request 'Code of Conduct Reviews'.
Emily Elliot, the delegate who refused access to this s 17 created document that contains
no personal information has refused access because she considers "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 small. 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" it would reasonably identify individuals who the code of conduct is about.
As stated by Emily Elliott, the s 17 document does not contain personal details about any
individual. In order for such a non-PI document to reasonably identity an individual, there
must be something more than just that the OAIC is small and code of conduct reviews are
uncommon.
It also should be noted that the type of information in this s 17 document is of the type
routinely published by the APSC as cases. The APSC even includes more information than
this s 17 document does.
This access refusal is therefore not only wholly unjustified and untenable, but nonsensical.
Material taken into account
In making my internal review decision, I have had regard to the following:
• your original freedom of information request FOIREQ22/00164 dated 1 July
2022
• the decision of the delegate dated 1 August 2022 the subject of this review;
• your request for internal review dated 1 August 2022
• the
Freedom of Information Act Act 1982 (FOI Act), in particular s 47F
• relevant case law, and
• the Guidelines issued by the Australian Information Commissioner under s 93A
of the FOI Act.
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Internal Review Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
An internal review decision is a ‘fresh decision’ made by a person other than the person
who made the original decision (s 54C of the
Freedom of Information Act 1982 (the FOI Act)).
I have had regard to, but not relied on, the delegate’s original Freedom of Information
(FOI) decision.
I have identified one document at issue for the purposes of this internal review: being the
document that was created by the relevant line area under s 17 of the FOI Act in response
to your FOI request in the original decision. I have decided to affirm the original decision in
refusing you access to the document.
The reasons for my decision are as follows.
Personal privacy conditional exemption – s 47F
I find the document exempt in full under s 47F of the FOI Act.
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.
The main requirements of this public interest conditional exemption are that a document
contains 'personal information'; disclosure in response to the applicant's FOI request
would be 'unreasonable' (s 47F(1)); and it would be 'contrary to the public interest' to
release the material at the time of the decision (s 11A(5)).
Personal information
In relation to the first requirement of s 47F, under s 4(1) of the FOI Act, ‘personal
information’ has the same meaning as in section 6 of the
Privacy Act 1988 (Privacy Act),
which provides:
“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.
In relation to whether a person is reasonably identifiable, the FOI Guidelines explain at
[6.131] – [6.135]:
What constitutes personal information will vary, depending on whether an individual can be
identified or is reasonably identifiable in the particular circumstances. For particular
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information to be personal information, an individual must be identified or reasonably
identifiable.
Where it may be possible to identify an individual using available resources, the
practicability, including the time and cost involved, will be relevant to deciding whether an
individual is ‘reasonably identifiable’. An agency or minister should not, however, seek
information from the applicant about what other information they have or could obtain.
Where it may be technically possible to identify an individual from information, if doing so is
so impractical that there is almost no likelihood of it occurring, the information is not
personal information.[106] In Jonathan Laird and Department of Defence [2014] AICmr 144,
the Privacy Commissioner was not satisfied that DNA analysis of human remains could
reasonably identify the World War II HMAS Sydney II crewmember. In finding that the DNA
sequencing information held by the Department was not personal information, the
Commissioner discussed that identifying the remains by utilising DNA sequencing would be
‘impractical for a reasonable member of the public’.
Similarly, in a series of recent IC review cases, the Information Commissioner had to decide
whether or not aggregate information relating to the nationality, language and religion of
refugees resettled under Australia’s offshore processing arrangements is the personal
information of the relevant individuals. In each case, the Commissioner found that the
individuals were not reasonably identifiable from the aggregated information.
Therefore, whether or not the individual is reasonably identifiable depends on the
practicability of linking pieces of information to identify the individual.
Based on my examination of the document, the document that I have found exempt
contains information detailing the number of Code of Conduct reviews and details
relevant to the nature of the non-compliance/outcomes. Having considered the
information, I agree with the original decision maker that given the limited amount of code
of conduct reviews identified in the document, when combined with the other information
detailed in the document about the nature of the non-compliance/outcomes, if this
material is released via the Right to Know website allowing public access to the document,
the individual or individuals are reasonably identifiable in the particular circumstances.
I have considered it relevant that the OAIC is a small agency of only around 130 staff, and
that release of this document under FOI, via the Right to Know website, provides public
and perpetual access to the document.
For these reasons, the aggregated information, in my view, would make the individual or
individuals to whom the document relates reasonably identifiable.
In your request for internal review you state the following
“It also should be noted that the type of information in this s 17 document is of the
type routinely published by the APSC as cases. The APSC even includes more
information than this s 17 document does.”
I note that, regarding the material published by the Australian Public Services Commission
(APSC), you appear to be referring to aggregate code of conduct investigation data
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published by the APSC, as opposed to information regarding a single small agency. As
explained above, due to the small size of the OAIC and the information contained in the
document at issue in this internal review, I am satisfied that were this document to be
released, the individual or individuals to which the information relates would be
reasonably identifiable.
Accordingly, I am satisfied that the document contains personal information for the
purposes of s 47F of the FOI Act.
Whether disclosure involve an unreasonable disclosure of personal information
In determining whether disclosure of personal information would be unreasonable,
section 47F(2) of the FOI Act requires me to have regard to the following matters:
• the extent the information is well known
• 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
• the availability of the information from publicly accessible sources
• any other matters I consider relevant.
The FOI Guidelines at [6.143] explain that other relevant factors include:
• the nature, age and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency’s collection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their application as to
their reasons for seeking access and their intended or likely use or dissemination of the
information, and
• whether disclosure of the information might advance the public interest in government
transparency and integrity.
Based on the information before me, and having examined the document at issue, I am of
the view that disclosure of the document at issue at this stage to you would involve an
unreasonable disclosure of personal information, for the following reasons:
1. Having considered the nature of the personal information, it is still of current
relevance
2. The specific personal information is not well known or available from publicly
accessible sources
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3. The individual/s whose personal information is contained in the document should
have a reasonable expectation that their personal information would not be
released.
As noted by the original decision maker, in
‘YC’ and Department of Foreign Affairs and Trade
(Freedom of information) [2021] AICmr 53 (13 October 2021) the disclosure of some
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 involved in. For these reasons I consider that these
circumstances can be distinguished from this Information Commissioner review and am
satisfied that the disclosure of the personal information would in this instance be
unreasonable.
While I consider that there is some utility in disclosure of the document in advancing the
public interest in government transparency and integrity in relation to performance of its
staff members, having considers all the relevant factors in this case, I am still of the view
that disclosure of the document would involve an unreasonable disclosure of personal
information.
For these reasons, I am satisfied that the material outlined above is conditionally exempt
under section 47F of the FOI Act.
The public interest test – s 11A(5)
An agency cannot refuse access to conditionally 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 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
section 3, 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.
The FOI Guidelines provide a further non-exhaustive list of factors favouring disclosure
(see [6.19]). I consider that disclosure of the document at issue would promote the objects
of the FOI Act and advance the public interest in government transparency, as it would
create greater transparency around the circumstances in which the Code of Conduct
reviews arise and the outcome of reviews at the OAIC. I consider this to be a relevant public
interest factor favouring disclosure and that some weight should be given to this factor.
I consider that the relevant FOI Guideline factor against disclosure in this case is that
disclosure could reasonably be expected to prejudice the protection of an individual’s
right to privacy.
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In balancing the relevant factors in this case, I consider that the public interest weighs
against disclosure. In particular, I am mindful that the information contained in the
document is information of a personal nature and that it is not well-known. I consider
significant weight should be given to an individual’s right to privacy.
For the above reasons, I am of the view that the document at issue, which contains
information detailing the number of Code of Conduct reviews and details relevant to the
nature of the non-compliance/outcomes, is exempt from disclosure under s 47F of the FOI
Act.
I am satisfied that giving access to the conditionally exempt material at this time would, on
balance, be contrary to the public interest.
Conclusion
For the above reasons, I affirm the original decision to refuse you access to the document.
Please see the following page for information about your review rights.
Yours sincerely
Emma Liddle
Director Legal
31 August 2022
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If you disagree with my decision
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 30 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.
s 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_10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
co
ntact xxx@xxxx.xxx.xx. More information is available on the
Access our information page
on our website.
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