- Classification (APS Level or Contractor)
- Occupant (Vacant if position not fil ed)
- Reports to Position
- Group / Branch / Section / etc”
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have identified 2 documents within the scope of your request. I have decided to give
you access to the 2 documents in part.
Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 16 June 2022;
• the documents at issue;
• the FOI Act, in particular ss 17, 22 and 47E(c);
• the guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act (the FOI Guidelines, and;
• relevant case law
Irrelevant material (s 22)
I have found material in one document to be irrelevant and outside the scope of your
FOI request.
Section 22(1)(b)(ii) of the FOI Act provides that an agency may prepare an edited
copy of a document by deleting information that is exempt or that would reasonably
be regarded as irrelevant to the request.
The FOI Guidelines explain at [3.54] that a request should be interpreted as
extending to any document that might reasonably be taken to be included within the
description the applicant has used.
2
In your initial email to the OAIC, you have named that you were seeking the following
information: OAIC positions, classifications, current occupant etc. As the link you
provided in your FOI request was broken, you provided further clarification in a
subsequent email of 5 August 2022 that you sought:
- Position Number
- Position/Job Title
- Classification (APS Level or Contractor)
- Occupant (Vacant if position not fil ed)
- Reports to Position
- Group / Branch / Section / etc”
One of the documents provided by the line area contain the OAIC staff members’
employee number, which is different to the position number you are requesting. In
the other document, it contains material pertaining to the employment status of
OAIC staff members.
In my view, having considered the scope of your FOI request and your email of 5
August 2022, I am satisfied that this material is outside the scope of your FOI request
and is irrelevant material pursuant to ss 22(1)(a)(i ) of the FOI Act.
Document created under s 17 of the FOI Act
Your FOI request contained the following:
“
This report can be produced entirely by the OAIC's computers”
This appears to be a request for the OAIC to produce the requested information
under section 17 of the FOI Act. I have considered whether it is possible to produce a
current OAIC position tree as you have requested. Relevantly, the FOI Guidelines at
[3.212] state that the obligation to produce a written document arises if:
• the agency could produce a written document containing the information by
using a ‘computer or other equipment that is ordinarily available’ to the
agency for retrieving or collating stored information (s 17(1)(c)(i)), or making a
transcript from a sound recording (s 17(1)(c)(i )), and
• producing a written document would not substantially and unreasonably
divert the resources of the agency from its other operations (s 17(2)).
3
A table has been generated which contains information regarding five out of the six
aspects of your request. Specifically, the table includes current information
regarding:
- Position number
- Classification level
- Current Occupant (where the position has been filled)
- Reports to position
- Group/ Branch/ Section
This document is attached to the decision. The table includes information which has
been found exempt under s 47E(c) of the FOI Act, please see further information
below.
In relation to your request for a document to be produced to capture “Position/Job
Title”, while it appears that the OAIC was able to generate this information in
response to a previous FOI request in 2019 as mentioned in your email to the OAIC of
5 August 2022, the line area has advised that at this point in time, the OAIC is not able
to produce such information in discrete form by the use of any computer programs
ordinarily available to the OAIC for retrieving the information as a result of the OAIC’s
transition to a new ICT system in late May 2022. The line area has also advised that at
this time, the information pertaining to “Occupant”, to show positions vacant if a
position has not yet been filled, is also unable to be generated in a discrete form by
the use of any computer programs ordinarily available to the OAIC.
Relevant to your request, in the Full Federal Court case of
Col ection Point Pty Ltd v
Commissioner of Taxation [2013] FCAFC 67, the Court found at [43]-[44] that the
reference in section 17(1)(c)(i) to ‘computer or other equipment that is ordinarily
available’ means ‘a functioning computer system including software, that can
produce the requested document without the aid of additional components which
are not themselves ordinarily available …’ The Court further observed that ‘[T]he
computer or other equipment … must be capable of functioning independently to
collate or retrieve stored information and to produce the requested document’ [44].
Similarly, in the recent case of
YH and Australian Communications and Media
Authority (Freedom of information) [2021] AICmr 64, it was found that a “manual
process” of locating the requested information in number of other documents and
then manually collating this information in a new document goes beyond what s 17
requires, and therefore s 17 does not apply in these circumstances (see [30]-[33]).
For these reasons, I am satisfied that the ‘Position/Job Title’ and aspects of the
“Occupant” information you requested cannot be produced by a computer or other
equipment ordinarily available to the OAIC. As a result of the recent ICT system
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transition, at this point in time, the OAIC is only able to create a document under s 17
of the FOI Act which satisfies five out of the six aspects of your request. However, I do
note the line area was able to locate an existing document, current as at April 2022,
that does contain the ‘Position/Job Title information’ you are seeking. I note that this
organisational chart is not current as it does not include key positions including the
FOI Commissioner Leo Hardiman, however, I have decided to provide you with
access to this document as it provides information in relation to ‘Position/ Job Title’.
Management and assessment of personnel (s 47E(c))
I have found material in two documents exempt in part under section 47E(c) of the
FOI Act. The documents can be described as:
1. A document created by the line area pursuant to s 17 of the FOI Act, and
2. A document which the line area located, being the latest version of the OAIC’s
organisational chart that was last updated in April 2022.
Based on my examination of the relevant documents, the exempt material that I
have found exempt under s 47E(c) can be described as:
- the full names of all non-SES OAIC staff members.
Under s 47E(c) of the FOI Act, a document is conditionally exempt if its disclosure
could reasonably be expected to have a substantial adverse effect on the
management or assessment of personnel by an agency.
Section 47E(c) of the FOI Act states:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel
by the Commonwealth or by an agency.
The FOI Guidelines explain at [6.114]:
For this exemption to apply, the document 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
5
training requirements, appraisals and underperformance, counselling,
feedback and assessment for bonus or eligibility for progression.
I have considered the material at issue in the 2 documents which were provided by
the OAIC human resources line area in this case. I consider the relevant material
relate to the management of personnel, including the broader human resources
policies and activities, recruitment and occupational health and safety.
In September 2020, the OAIC published a position paper on the disclosure of public
servants’ personal information in response to FOI requests.
1 The paper outlined the
following key principles:
1. Transparency and accountability are fundamental to Australian democracy and to
the Australian public service. Public servants should be accountable for their
decisions, their advice and their actions in the service of the Commonwealth.
2. Public servants also have a right to be safe at work and safe from harm as a result of
their work.
3. The evolution of the digital environment – including its ubiquity, accessibility and
longevity – gives rise to new risks for public servants, as well as for citizens. These
risks include the traceability and trackability of public servants’ personal lives and
the risk of physical or online harassment.
4. Previously existing risks have been compounded by the normalisation of digital
communications and publication. Risk may be increased when contact details are
published to a wider audience, for a longer period of time, and at no cost, on a digital
platform.
5. This paper recognises changes resulting from the development of the online
environment when balancing the accountability and safety of public servants within
the context of disclosures required by the FOI Act.
…
I find the discussions in the position paper useful in considering the material before
me at this time.
The OAIC generally releases it staff member’s names in response to FOI requests,
particularly where OAIC applicants seek to access their files and records held by the
OAIC which, in line with the objects of the FOI Act, promote better-informed decision-
making and increases scrutiny, discussion, comment and review of the
Government’s activities. This is contrasted with the circumstances of this request
1 Disclosure of public servants’ name and contact details in response to FOI requests - Home (oaic.gov.au)
6
where the relevant material arises in documents is for internal use only for the
management of personnel purposes by the OAIC and is material that is not published
on the OAIC’s website. It is apparent from these documents that the names of the
OAIC non-SES staff members arise in the documents not because of their usual
responsibilities in performing a function of the OAIC but as a result of their status as
an employee of the OAIC. Section 19 of the
Work Health and Safety Act 2011 requires
employers to ensure, as far as is reasonably practicable, the health and safety of their
workers. This means employers must eliminate risks to health and safety so far as it
is reasonably practicable to do, or minimise the risks if it is not reasonably
practicable to eliminate them (section 17).
There have been instances where OAIC staff members have received threats of harm
from members of the public, raising both security and work health and safety
concerns. This real risk of harm is compounded in this case as it is almost certain that
all documents released in response to FOI requests made via the Right to Know
website can be published without effort and quickly disseminated globally.
In my view, based on the information before me at this time, I am of the view that
disclosure of all non-SES OAIC staff names en masse via a public forum such as Right
to Know, would, or could reasonably be expected to substantially and adversely
affect the OAIC’s ability to manage its personnel, including its broader human
resources policies and activities, particularly in relation to its statutory occupational
health and safety obligations as an employer.
I find the relevant material comprising of non-SES OAIC staff names conditionally
exempt under s 47E(c) at this time.
I will consider public interest factors in the later parts of my decision.
The public interest test – s11A(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 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 at [4]:
… the time at which I make my decision for s 11A(5) requires access to be
given to a conditionally exempt document “at a particular time” unless doing
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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.
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
informed the decision and when disclosure will enhance the scrutiny of government
decision making. I do not consider that the material that has been identified as
exempt under s 47E(c) of the FOI Act would enhance the scrutiny of government
decision making.
As such, the only public interest factor favouring disclosure in this case is that
disclosure would promote the objects of the FOI Act generally through promoting
access to government held information. Other factors are not relevant in this
instance.
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 factor against disclosure in this instance is that disclosure
of the full names of all non-SES OAIC staff members via a public forum on Right to
Know could reasonably be expected to prejudice the OAIC’s ability to manage its
personnel, including its broader human resources policies and activities towards
occupational health and safety. In particular, in light of past instances where OAIC
staff members have been subject to threats of harm, disclosure of this material by
the OAIC via a public form on Right to Know in this case would be in contravention of
OAIC’s obligations under the
Work Health and Safety Act 2011 to eliminate or
minimise known risks to health and safety as far as it is reasonably practicable to do
so.
On balance, I consider that the factor against disclosure outweighs the factor in
favour of disclosure. I have therefore decided that it would be contrary to the public
interest to give you access to the information that I have found to be conditionally
exempt under s 47E(c) of the FOI Act.
Access to edited copies with irrelevant and exempt matter deleted (s 22)
8
The documents within the scope of your request contain material which is exempt
from disclosure. On this basis, I have prepared the documents for release by
removing exempt material in accordance with section 22 of the FOI Act.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Margaret Sui
Senior Lawyer
15 August 2022
9
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.
10
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.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on the Access our information
page on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
The documents I have decided to release to you contains exempt material and
therefore an edited version of the documents will be published on our disclosure log
after being released to you.
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