Our reference: FOIREQ22/00241
Attention:  Julie
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Internal Review Application - FOIREQ22/00187
Dear Julie
I am writing to advise you of my decision in response to your application for internal
review of the decision made on 15 August 2022 (FOIREQ22/00190).
Original FOI Decision
On 16 July 2022, you applied to the OAIC for access to the following:
“I request copy of the current OAIC position tree report (that lists al  OAIC positions,
their classifications, current occupant, etc).
By way of example I previously requested copy of DVA's position tree in January of this
year https://www.righttoknow.org.au/request/p...
This report can be produced entirely by the OAIC's computers.”
On 5 August 2022, Mr Toby Shanks, Paralegal contacted you and requested that you
resend the URL link contained in your FOI request, which appeared to be broken.
On 5 August 2022, you responded with the following:
“FOIREQ19/00217 is an example that wil  be easier for you to access as the page seems
to have gone.
The FOIREQ19/00217 decision and released document is available here
https://www.righttoknow.org.au/request/organisational_position_report#incoming-
15834
I understand that the OAIC can produce a table using preset reporting functions that
generate a report that lists:
- Position Number
- Position/Job Title
1300 363 992
T +61 2 9284 9749  GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666  Sydney NSW 2001  ABN 85 249 230 937

- Classification (APS Level or Contractor)
- Occupant (Vacant if position not fil ed)
- Reports to Position
- Group / Branch / Section / etc”
On 15 August 2022, the OAIC made a decision in relation to your request. Two
documents were identified as relevant to your request. A document created under
s17 of the FOI Act and a copy of the OAIC organisational chart.  Both documents were
released in part with material redacted under s22 and s47E(c) of the FOI Act.
On 23 August 2022, you applied for an internal review of the decision stating:
I am writing to request an internal review of Office of the Australian Information
Commissioner's handling of FOIREQ22/00190 'Position Tree Report'.

Despite the ic guidelines stating that the scope of an foi must be interpreted reasonably
the delegate applied a particularly restrictive interpretation that ignored that the fields
given were not restrictive or exhaustive, but were used only as il ustrative examples as
highlighted by the opened ended use of etc. The scope of the request was for the
'current OAIC position tree report' and therefore fields redacted under s 22 from these
position tree reports had no such consent to be treated as out of scope as they formed
part of these position tree documents.

The s 47E(c) exemptions claimed are also invalid on the basis that they exceed
reasonable practice established even when agencies claim a workplace health and
safety basis, in that redaction of al  detail is excessive to the usual practice in such
claims (last names are usual y redacted by first names are not).

An agency cannot merely assert that an effect would occur fol owing disclosure. The
particulars of the predicted effect and the reasons behind the identification of those
particulars must be articulated during the decision making process. Those particulars
must also indicate whether the effect could reasonably be expected to occur. In that,
the delegate's decision was deficient.

Section 47E(c) has been examined before by the Information Commissioner, who
stated:

---
I have had regard to the Department’s submissions, which are framed in general terms
that do not explain how the predicted adverse effect could reasonably be expected to
occur in this case. In particular, the Department has not explained how disclosure of
the officer’s family names and user identification details to the applicant could result in
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a reasonable expectation of staff being targeted, insulted or harassed in this particular
case

To refuse access to a document under s 47E(c) of the FOI Act on this basis, the
harassment or threats the Department described must be reasonably expected
to occur as a result of the disclosure of the documents in the particular
circumstances of the case. Additional y, as the FOI Guidelines explain, an
agency cannot rely on a class claim contention when withholding access to a
document under a conditional exemption.

Consistent with Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 and ‘NN’, while I agree that the Department needs to be
appropriately attentive to its workplace health and safety obligations to staff, I am not
satisfied that the release of the family names of the officers and the user identification
details in this case could reasonably be expected to have a substantial adverse effect
on the management of personnel.
---

As stated by the delegate, "The OAIC general y releases it staff member’s names" not
only in foi decisions but in a range of material both on the OAIC website as well as other
third party websites (that not only disclose that the OAIC employee works for the OAIC
but also their job title and contact numbers).

Such a s 47E(c) claim amounts to a class claim based not on the disclosure itself (given
you cannot disclose freely in public elsewhere and then selectively refuse on a s 47E(c)
basis), but due to dislike for the request.

Despite the claim that "There have been instances where OAIC staff members have
received threats of harm from members of the public", a generalised claim with no
evidence offered in support, Comcare data shows there have been no claims made by
any OAIC employee for assault (mental or physical) by anyone other than OAIC
employees since the OAIC was first established.

Given Commonwealth employees are proactive in claiming compensation, the absence
of any such claims is evidence that no substantive adverse effect or weight was put on
such events, even if there was any evidence (not shown) they had occurred.

A ful history of my FOI request and al correspondence is available on the Internet at
this address: https://www.righttoknow.org.au/request/position_tree_report_2
Material taken into account
In making my internal review decision, I have had regard to the fol owing:
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•  your original freedom of information request FOIREQ22/00190 dated 16
July 2022
•  the decision of the delegate dated 15 August 2022 the subject of this
review
•  your request for internal review dated 23 August 2022
•  the FOI Act
•  relevant case law
•  the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act.
Internal Review Decision
I am an officer authorised under section 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 (section 54C of the Freedom of Information Act
1982 (the FOI Act)). As such, I have had regard to, but not relied on, the delegate’s
original Freedom of Information (FOI) decision.

I have decided to exempt both documents in part under s47E(c) of the FOI Act. In
addition, I have decided to exempt one document in part under s47F of the FOI Act. I
have released additional material in the organisational chart that I consider is not
irrelevant to your request. Details of my decision are included in the attached
schedule and the reasons for my decision are set out below.

Document created under s 17 of the FOI Act
I have reviewed the document created under s 17 of the FOI Act.  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
I affirm that the table was created under s 17of the FOI Act and contains information
in relation to five out of the six aspects of your request.
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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 Collection 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]).
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 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.
Irrelevant material (s 22)
The original decision maker determined information in both documents as irrelevant
to your request under s 22(1)(a)(ii) of the FOI Act. This information included the
employment status of the employee in the organisational chart (ie whether they
were ongoing or non-ongoing) and the employee (AGS) number of both the
employee and the employee’s manager in the table created under s 17 of the FOI Act.
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.
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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.
I note that in your request for internal review you state:
The scope of the request was for the 'current OAIC position tree report' and therefore
fields redacted under s 22 from these position tree reports had no such consent to be
treated as out of scope as they formed part of these position tree documents.
While I consider it was open to the original FOI decision maker to determine these
fields as out of scope of your request, based on your request for internal review I
consider these fields to be within the scope of your original request. I have decided
to release to you the employment status of the employee in the organisation chart. I
have decided that the employee (AGS) number of both the employee and their
manager is exempt under s47F of the FOI Act and my reasons for that decision are set
out below.
Management and assessment of personnel (s 47E(c))
I have found material in both documents exempt in part under section 47E(c) of the
FOI Act. Based on my examination of the relevant documents, the exempt material
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 conditional y 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 conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
…
(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
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•  the assessment of personnel – including the broader performance
management policies and activities concerning competency, in-house
training requirements, appraisals and underperformance, counsel ing,
feedback and assessment for bonus or eligibility for progression.
Having considered the material within the 2 documents, I consider the relevant
material relates to the management of personnel, including the broader human
resources policies and activities, recruitment and occupational health and safety.
As a commonwealth employer the OAIC has duties and obligations under the Work
Health and Safety Act 2011. This includes a duty to manage workplace health and
safety by eliminating and minimising risks as much as it reasonably practicable.
Psychosocial hazards are any occupational hazard that affects the psychological and
physical wellbeing of employees and includes workplace violence and customer
aggression including verbal threats.  When engaging with members of the public OAIC
staff members can encounter aggression including verbal threats. These threats are
not publicly reported. The OAIC has an obligation under the Work Health and Safety
Act 2011 to eliminate the risks associated with psychosocial hazards as much as
reasonably practical.
I note that in your request for internal review you argue that “Comcare data shows
there have been no claims made by any OAIC employee for assault (mental or physical)
by anyone other than OAIC employees since the OAIC was first established.”. However,
the fact that no claim has been lodged does not mean that staff have not
encountered instances of aggression from members of the public.  Nor does it
remove the obligation on the OAIC to eliminate risks associated with aggression
towards staff as much as it is reasonably practicable.
You note in your request for internal review that we acknowledged that in the
primary decision that: the OAIC general y 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.
I consider that this position can be distinguished in relation to this request as you are
not seeking a limited number of staff names associated with a specific matter related
to you. You are seeking the release of all OAIC staff members’ names in response to a
single request which will be publicly available via the right to know website. The
organisational chart sets out both the relevant area and position of each staff
member. In my view, the release of this information could be reasonably expected to
have a substantial adverse impact on the OAIC’s ability to manage risks associated
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with aggression towards staff. I consider ful  names of all non-SES OAIC staff
members conditional y exempt under s47E(c) of the FOI Act.
Personal privacy (s 47F)
I have found material in one document exempt in part under section 47F of the FOI
Act. Based on my examination of the relevant documents, the exempt material can
be described as the employee (AGS) number of OAIC employee’s including their
managers employee (AGS) number.
Personal Information
Subsection 4(1) of the FOI Act provides that ‘personal information’ has the same
meaning as in the Privacy Act 1988 (the 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
An OAIC employee’s (AGS) number is a unique identifier provided to all
commonwealth government employees. Each employee is only ever provided with
one employee (AGS) number throughout their commonwealth employment,
regardless of the number of agencies or period of service. It can be combined with
other information to identify an individual.  I am satisfied that material described
above is ‘personal information’ for the purposes of s 47F(1) of the FOI Act.
Would disclosure involve an unreasonable disclosure of personal information?
When determining whether disclosure of information would involve an unreasonable
disclosure of personal information, s 47F(2) provides that a decision maker must
have regard to:
•  the extent to which 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, and
•  any other matters that the agency or Minister considers relevant.

The FOI Guidelines explain at [6.138] that the test of ‘unreasonableness’ in s 47F
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‘implies a need to balance the public interest in disclosure of government-held
information and the private interest in the privacy of individuals’.
Consistent with FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines 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 col ection 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.
An employee (AGS) number is not general y well known, is not publicly available and
is not used to identify the position of the employee or indicate the work undertaken
by the employee. It is in general used to manage an individual’s employment with
the commonwealth government such as payrol , superannuation, leave and training.
On this basis, I consider disclosure would not advance the public interest in
government transparency and integrity and would be an unreasonable disclosure of
OAIC staff’s personal information.   As such, I consider the employee (AGS) number of
OAIC employee’s including their managers employee (AGS) number conditionally
exempt under s47F of the FOI Act.
The public interest test – s11A(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 this case, I must
consider whether disclosure of the documents at this time would be contrary to the
public interest.
The FOI Act provides a list of factors favouring access in section 11B(3) 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
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link to page 10 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) and 47F of the FOI Act would enhance the scrutiny of
government decision making.
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.
Against this factor, 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 the relevant
factors against disclosure are that disclosure could:
•  reasonably be expected to prejudice the protection of an individual’s right to
privacy; and
•  reasonably be expected to prejudice the management function of an agency
In weighing up the factors both for and against disclosure, I have considered the
OAIC 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.

1 Disclosure of public servants’ name and contact details in response to FOI requests - Home (oaic.gov.au)
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Based on the particular circumstances of your request, that you have requested all
OAIC staff names and that they wil  be made available on the right to know website, I
consider that the factors against disclosure outweigh those factors in favour of
disclosure at this time.
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 conditional y exempt under s 47E(c)
and s 47F of the FOI Act.
Access to edited copies with exempt matter deleted (s 22)
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

Emma Liddle
Director – Legal Team
23 September 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_
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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
contact xxx@xxxx.xxx.xx. More information is available on the Access our
information page on our website.
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Document Outline