FOIREQ22 00272 Decision.pdf

OAIC's own references to these D reference documents in documents released here on
Right to Know.”
Material taken into account
In making my internal review decision, I have had regard to the following:
•  your original freedom of information request FOIREQ22/00199 dated 27 July 2022
•  the decision of the delegate dated 26 August 2022 the subject of this internal
review and accompanying schedule and documents
•  your request for internal review dated 10 September 2022
•  the FOI Act, in particular ss 22, 47E(d), and 47F
•  relevant case law, and
•  the FOI 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 (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 decided to vary the decision to release 4 documents to you in full. In this
internal review decision I have identified 15 documents within the scope of your
request. I have decided to release 14 documents to you in full and 1 document in
part.

Details of my decision are included in the attached schedule and the reasons for my
decision are set out below.

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Searches undertaken
Section 24A requires that an agency take ‘all reasonable steps’ to find a requested
document before refusing access to it on the basis that it cannot be found or does
not exist.
The FOI Guidelines at [3.89] explain:

“Agencies and ministers should undertake a reasonable search on a flexible and
common-sense interpretation of the terms of the request. What constitutes a
reasonable search wil  depend on the circumstances of each request and will be
influenced by the normal business practices in the agency’s operating environment.

At a minimum, an agency or minister should take comprehensive steps to locate
documents, having regard to:

•  the subject matter of the documents
•  the current and past file management systems and the practice of destruction or
removal of documents
•  the record management systems in place
•  the individuals within an agency who may be able to assist with the location of
documents, and
•  the age of the documents”

I note that in your internal review request, you stated the following:

“It is clear an inadequate search has been performed by the original delegate given the
OAIC holds/controls access to documents in scope (unlike the guidelines), given the
OAIC's own references to these D reference documents in documents released here on
Right to Know.”

In light of your concerns, in processing this internal review, a staff member of the
OAIC Legal Services team sent out search and retrieval requests to the FOI
Regulatory, Privacy, and Enquiries line areas, requesting that they search for
documents within the scope of your request. 15 documents were identified from
these line areas as falling within your request. I note that the document titled
“External complaints about OAIC employees or contractors – overarching policy” and
“Privacy Complaints about the OAIC” were previously released to you in the original
decision the subject of this internal review, as a publicly available document. For the
sake of completeness, I have decided to re-release these documents to you in pdf
form in this internal review decision.

I note that your request was specifically for any currently used document that sets
out how the OAIC manages IC review requests, service complaints, FOI complaints,
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and privacy complaints about the OAIC itself, not how the OAIC manages these
matters generally. Documents that do not specifically set out how the OAIC manages
complaints about itself, or documents that are not currently used by the OAIC, have
not been included as they are outside the scope of your request.

Regarding your reference to other “reference documents in documents released here
on Right to Know” in your internal review request, searches were conducted on Right
to Know in an attempt to determine what reference documents you were referring
to. No additional documents were identified from these searches. If there is a specific
document that you would like to request access to, we invite you to make an FOI
request clearly identifying which document you are seeking.

Exempt material (s 22)
I have found certain documents contain exempt material, as outlined further below.
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.
1 document within the scope of your request contain material which is exempt from
disclosure. On this basis, I have prepared the document for release by removing
exempt material in accordance with s 22 of the FOI Act.
Certain operations of agencies exemption – s 47E(d)
I have found documents to be exempt in part under section 47E(d) of the FOI Act.
The material and documents that I have found to be exempt under s 47E(d) of the FOI
Act can be described as:
•  The direct contact details and surnames of Commonwealth Ombudsman staff
members, and
•  The direct mobile phone numbers of OAIC staff members.
Under s 47E(d) of the FOI Act, a document is conditionally exempt if its disclosure
would, or could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the operations of an agency.
The FOI Guidelines provides:
-  at [6.101]: For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be
reasonably expected to occur. The term ‘could reasonably be expected’ is explained in
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greater detail in Part 5. There must be more than merely an assumption or al egation
that damage may occur if the document were to be released.
- at [6.103]: An agency cannot merely assert that an effect would occur fol owing
disclosure. The particulars of the predicted effect should be identified during the
decision making process, including whether the effect could reasonably be expected to
occur. Where the conditional exemption is relied upon, the relevant particulars and
reasons should form part of the decision maker’s statement of reasons, if they can be
included without disclosing exempt material (s 26, see Part 3).

The term ‘substantial adverse effect’ explained in the Guidelines [at 5.20] and it
broadly means ‘an adverse effect which is sufficiently serious or significant to cause
concern to a properly concerned reasonable person’.
Commonwealth Ombudsman staff contact details and surnames
I have decided that 1 document within the scope of your request is exempt in part as
it contains the direct email addresses, phone numbers, and surnames of
Commonwealth Ombudsman staff members.
In order to determine whether disclosure of the outlined material would, or could
reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the operations of the Commonwealth Ombudsman, I have taken
into consideration the functions and activities of the Commonwealth Ombudsman.
The office of the Commonwealth Ombudsman is created by the Ombudsman Act
1976 (Cth). Under this act, the Commonwealth Ombudsman functions to investigate
complaints regarding the administrative actions of Federal Government
departments, as well as certain private sector organisations.
In order to manage its complaint workload efficiently, the Commonwealth
Ombudsman has procedures in place to manage complaints, which includes an
online complaint form and a general line for the public to call. The direct contact
details of Commonwealth Ombudsman employees are not publicly available and are
not listed on the Commonwealth Ombudsman website. I consider that, were the
contact details or full names of Commonwealth staff members made available to the
public, this would have a significant adverse effect on the Commonwealth
Ombudsman’s ability to appropriately manage its complaints and investigation
processes, through allowing members of the public to directly contact individual
staff members, undermining the ability of the Ombudsman to appropriately receive
and manage enquiries centrally in accordance with its established procedures.
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Relevantly, in the Information Commissioner review (IC review) case of ‘PX’ and
Australian Federal Police (Freedom of information) [2019] AICmr 8 at [64], it was
found that as the Commonwealth Ombudsman has in place “…procedures in place to
manage their contact with members of the public and investigate complaints”, the
release of direct contact details of staff “…would have a substantial adverse effect on
the proper and efficient conduct of the Ombudsman’s operations.”
Considering my findings above, and in line with the above IC review decision ‘PX’ and
Australian Federal Police, I am satisfied that the release of the direct contact details
and surnames of Commonwealth Ombudsman staff members would have a
substantial adverse effect on the proper and efficient conduct of the Ombudsman’s
operations. I therefore find that the relevant material is conditionally exempt under
section 47E(d) of the FOI Act.
OAIC staff mobile number
The OAIC material that I have held to be exempt under section 47E(d) of the FOI Act
in 1 document is the direct mobile contact details of an OAIC staff member.
In order to determine whether disclosure of this material would, or could reasonably
be expected to, have a substantial adverse effect on the proper and efficient conduct
of the operations of the OAIC, I have taken into consideration the functions and
activities of the OAIC.
In particular, I have had regard to the Australian Information Commissioner’s Privacy
Act powers and regulatory powers under the Australian Information Commissioner
Act 2010 (Cth) (AIC Act) and the Privacy Act 1988 (Privacy Act).
The OAIC is an independent statutory agency within the Attorney-General’s portfolio,
established under the AIC Act. The OAIC comprises the Australian Information
Commissioner and the Privacy Commissioner (both offices currently held by
Angelene Falk), the FOI Commissioner (Leo Hardiman KC), and the staff of the OAIC.
The OAIC is established under section 5 of the AIC Act. Section 5 also provides that
the Information Commissioner is the Head of the OAIC for the purposes of the Public
Service Act 1999 (Cth). Section 5 further provides that for the purposes of the Public
Governance, Performance and Accountability Act 2019 (Cth), the Information
Commissioner is the accountable authority of the OAIC. Under the Privacy Act, the
OAIC has a range functions and powers, including assessing and managing privacy
complaints.
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In ‘WN’ and Inspector General of Taxation [2020] AICmr 70 at [34] the Information
Commissioner accepted that:
“…unsolicited calls to IGT employees’ direct telephone numbers and
work mobile telephone numbers will fall outside the integrated service
platform and would not be electronically recorded, adversely affecting
accountability, transparency, quality assurance and the provision of
support to employees in relation to those calls. While I have taken into
account the applicant’s submissions in this regard, on balance I find that
this circumstance could reasonably be expected to have a substantial
adverse effect on the proper and efficient conduct of the IGT’s
operations.”
In this case, I am satisfied that the direct mobile telephone numbers of OAIC staff
members are not public information and is not known to be associated with the
OAIC’s complaint handling and communication processes. The OAIC has established
processes of communication in processing privacy complaints. A review officer is
allocated to each privacy complaint and will be the main contact with the
complainant and the respondent during the course of investigating the complaint. If
these mobile phone numbers are made publicly available, unsolicited calls to that
individual will impede the proper and efficient conduct of the OAIC’s functions in
conducting privacy complaints and performing its statutory functions. The effect of
that disclosure is likely to be both substantial and adverse in that such
communication will need to be redirected to the appropriate review officer handling
the specific privacy complaint, causing some delay in addressing any relevant
queries regarding the privacy complaint.
Further releasing individual mobile numbers of OAIC staff could expose the staff
member to unsolicited and unwarranted text, calls or harassment, and impede their
ability to perform their OAIC functions effectively, leading to a substantial adverse
effect on the proper and efficient conduct of the OAIC’s operations.
Therefore, I am satisfied that the direct mobile number of an OAIC staff members is
conditionally exempt material under s 47E(d) of the FOI Act.

Personal privacy conditional exemption – section 47F
I have decided that the direct mobile number of the OAIC staff member is also
conditionally exempt 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.
Personal Information
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 am satisfied that for the purposes of the FOI Act, a mobile telephone number of an
individual is personal information.
Consideration
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.
I consider that the release of the mobile telephone numbers of OAIC staff would be
an unreasonable disclosure of personal information. The relevant mobile telephone
number is not well-known nor available on publicly accessible sources. Noting that
the FOI Act does not control or restrict any subsequent use of information, the
release of this personal information has the potential to cause stress to these
individuals and expose them to harassment, while being only incidental to the
subject matter of this FOI request.
As per the recent Administrative Appeal Tribunal decision of Chief Executive Officer,
Services Australia and Justin Warren (Freedom of information) [2020] AATA 4557, it
may be unreasonable to release personal contact details of agency staff when such
information is only of limited connection to the subject matter of the relevant FOI
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request, such that release would not “make any positive contribution to increasing
public participation in Government processes or in increasing scrutiny, discussion,
comment and review of the Government’s activities.” [130]. I am satisfied that this is
the case here and am therefore satisfied that the mobile telephone numbers of OAIC
staff is conditionally exempt under section 47F of the FOI Act.

Public interest (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) FOI Act). 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. I must consider whether disclosure of the documents at this time
would be contrary to the public interest.
The FOI Guidelines provide a non-exhaustive list of factors favouring disclosure (see
[6.19]). I consider the relevant public interest factor in favour of disclosure in this
case is that the disclosure would promote the objects of the FOI Act. Other factors
are not relevant.
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 as follows:
•  disclosure of the direct contact details and surnames of OAIC and
Commonwealth Ombudsman staff is likely to prejudice the proper and
efficient conduct of these agencies, and
•  disclosure of the details of the direct mobile number of an OAIC staff
member can be reasonably expected to prejudice the protection of this
individual’s right to privacy, as well as potentially exposing the individual to
unnecessary stress, and increasing their risk of experiencing harassment.
I have decided that at this time, giving you full access to the documents, which I have
found to be conditionally exempt under ss 47E(d) and 47F of the FOI Act, would, on
balance, be contrary to the public interest.
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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 it would be unreasonable to publish.
The documents I have decided to release to you contains exempt material. As a
result, an edited version of the documents will be published on our disclosure log
within 10 days of providing you access.

Yours sincerely

Jian Liu

Acting Director, Legal
10 October 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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