Reasons for Decision
Material taken into account
In making my decision, I have had regard to the following:
• your freedom of information request dated 4 December 2022,
• your previous request FOIREQ22/00317
• the document at issue,
• the FOI Act, in particular sections 11A(5), 17, 22, 24A, 47E(c) and 47F
• the guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act (the FOI Guidelines), and
• relevant case law.
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
1 document within the scope of your request, created under s 17 of
the FOI Act. I have decided to release this document to you in part.
Whether reasonable steps taken to find documents – s 24A
Section 24A of the FOI Act requires the OAIC to 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.
Section 24A provides as follows:
(1) An agency or Minister may refuse a request for access to a document if:
(a) al reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(i ) does not exist
The FOI Guidelines state:
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Agencies and ministers should undertake a reasonable search on a flexible and
commonsense interpretation of the terms of the request. What constitutes a
reasonable search will depend on the circumstances of each request and will be
influenced by the normal business practices in the agency’s operating environment or
the minister’s office. 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 system and the practice of destruction
or removal of documents
• the record management system in place
• the individuals within the agency who may be able to assist with the location
of documents, and
• the age of the documents.1
Searches undertaken
In processing your FOI request, the following line areas of the OAIC conducted
reasonable searches for documents relevant to your request:
• People and Culture
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s case management system - Resolve
• the OAIC’s document holding system – Content Manager
• OAIC’s email system
• general computer files
Having consulted with the relevant line area and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request, and that no documents were able to
be found within the scope of your request.
Document created under s 17 of the FOI Act
As I am satisfied that the documents you have requested do not exist or cannot be
found, I have considered whether the OAIC may produce a document under s 17 of
the FOI Act containing the information that you have requested.
1 Office of the Australian Information Commissioner,
Guidelines issued by the Australian Information
Commissioner under s 93A
of the Freedom of Information Act 1982 (
FOI Guidelines) [3.89], footnotes
omitted.
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Under s 17 of the FOI Act, if an FOI request is made for a document that could be
produced by using a computer ordinarily available to the agency for retrieving or
collating stored information, an agency is required to deal with the request as if it
was a request for written documents to which the FOI Act applies.
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 substantial y and unreasonably divert the
resources of the agency from its other operations (s 17(2))
If those conditions are met, the FOI Act applies as if the applicant had requested
access to the written document and it was already in the agency’s possession.
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 …”
You have requested a “
copy of the documents released in FOIREQ22/00317 updated as
at 1 November, but with the first name field for al staff unreacted and the first initial of
the second name unredacted”. This information is not available in discrete form but
was able to be produced in a written documents through the use of a computer.
Accordingly, a document has been created under s 17 in response to your request. I
have decided to grant partial access to that document.
Management and assessment of personnel (s 47E(c))
I have found material in the document created pursuant to s17 to be conditionally
exempt in part under section 47E(c) of the FOI Act. Based on my examination of the
relevant document, the exempt material can be described as the first names, first
initial of the surnames, and full names of all non-SES OAIC staff members.
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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 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
• 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 document, 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 is 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.
You note the fol owing in your request: ‘
in correspondence OAIC staff identify themselves
by their ful name most of the time or by their first name and initial in some occasions.’
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I note that although OAIC non-SES staff members general y do provide their full name
in correspondence with yourself and other members of the public, I would distinguish
this scenario with this request, in that you are not seeking access to 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. 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 with aggression towards staff. I consider
both first names, and the first initial of surnames, as well as ful names of all non-SES
OAIC staff members conditionally exempt under s47E(c) of the FOI Act.
Personal privacy (s 47F)
I have found material in the 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:
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• 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
‘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 wel 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
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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 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.2 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.
2 Disclosure of public servants’ name and contact details in response to FOI requests - Home (oaic.gov.au)
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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.
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. I have
decided to release the full names of SES level staff, given that these have previously
been released to you and are within scope.
Conclusion
Please see the following page for information about your review rights and
information about the OAIC’s disclosure log.
Yours sincerely
Alessia Mercuri
Lawyer
3 January 2023
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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_
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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 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.
I have made a decision to publish the documents subject to your request on the OAIC’s
disclosure log.
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