19 January 2023
CONFIDENTIAL
Mr Alex Pentland
By email to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
REVIEW OF FOI DECISION – REFERENCE NO. 202223-016 – Deleted tweet
I refer to your correspondence dated 20 December 2022 requesting an internal review
of the decision in respect to your information request, Reference No. 2022223-016.
Background
Your information request seeks access to:
documents and correspondence regarding the publication, and subsequent
deletion of a Tweet from ABC Reporter David Taylor on l October 2022.
A decision in relation to your information request was made by the ABC’s Head of
Rights Management & FOI Decision Maker, Ali Edwards, who has authority to make
decisions in respect of requests made under the Freedom of Information Act 1982 (Cth)
(FOI Act).
In correspondence to you dated 16 December 2022, Ms Edwards stated that she had
identified five documents (the Documents) that fell within the scope of your request.
Ms Edwards granted access to Documents 2 to 5 in part and refused access to
Document 1
. The ABC consulted with affected 3rd parties in relation to release of parts
of Documents 2, 3 and 4. Neither 3rd party consented to the release of the parts of
documents in question and still have time to exercise their rights of review and I have
taken this into account as part of this process.
I am authorised by the Managing Director under s23 of the FOI Act to make decisions
on requests for internal review.
I have reviewed your request in accordance with s54C of the FOI Act.
In undertaking my review, I have reviewed the Documents, relevant sections of the FOI
Act, relevant case law and the FOI Guidelines published by the Office of the Australian
Information Commissioner (FOI Guidelines).
1
Decision
Having reviewed your request, I have decided to affirm the Original Decision that the
ABC is not required to take any further action in relation to the Documents.
I have made this decision having regard firstly to the general right of access set out
s11(1) of the FOI Act which states:
(1)
Subject to this Act, every person has a legally enforceable right to obtain
access in accordance with this Act to:
(a)
a document of an agency, other than an exempt document…
Reasons
Management of Personnel
I confirm that Document 1 is conditionally exempt under the provisions of s 47E(c) of
the FOI Act which deals with the substantial adverse effect on an agency’s ability to
manage personnel created by the release of documents.
As cited by Ms Edwards Section 47E(c) of the FOI Act conditionally exempts documents
containing information, the disclosure of which would, or could reasonably be
expected to, have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth or by an agency.
Ms Edwards also references Paragraph 6.114 of the FOI Guidelines which provides that
for the exemption to apply the documents must relate to the management of
personnel. This has been defined to include the broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and
occupational health and safety.
If the above limb of s47E(c) is not satisfied, and for the avoidance of doubt I believe that
it is, the exemption also applies if the documents relate to the assessment of personal
including the broader performance management policies and activities concerning
competency, in-house training requirements…counselling [and] feedback. I am of the
view that Document 1 involves the assessment of personnel in that it goes the heart of
in-house on the job training, feedback, development, and coaching of personnel.
In my capacity as the Head of Employee Relations for the ABC I am acutely aware of the
increase of incidents of online abuse and trolling of ABC journalists and the impacts
on their well-being. The ABC has put in place significant measures in recent years to
ensure the psychological safety of its employee in relation to social media activity and
I believe release of Document 1 that includes the names and contact details of ABC
employees would undermine these measures. In other words, the substantial adverse
effect of release of Document 1 could reasonably be expected to occur and is not
merely an assumption or allegation (see 6.101 of the FOI Guidelines) in circumstances
where the FOI Act does not restrict dissemination of information once it is released.
Employees in organisations across Australia, including the ABC, hold reasonable
expectations of privacy and confidentiality with respect to individual staffing
2
matters. This includes an expectation that HR matters personal to them will be kept
confidential in the same way that other entitlements and employment information is
kept confidential between employer and employee.
If ABC employees are exposed to risks to their well-being and health and safety
because of the actions of the ABC in releasing documents relating to personal
HR matters, I believe this will result in employees being less psychologically
safe. A failure to provide a psychologically safe workplace not only risks the
health and safety of an individual employee but makes the ABC a less desirable
place to work and hinders its ability to attract and retain talent. This would, in
a competitive media market, have a substantial and adverse impact on the
proper and efficient operations of the ABC and is therefore also conditionally
exempt under s47E(d) of the FOI Act.
The Original Decision provided partial release of Documents 3, 4 and 5 with
release refused on various grounds under the FOI Act (I note that for ease of
reference the relevant sections of the FOI Act relied upon by the ABC to refuse
release is referenced in the documents).
I deal now with the sections of Documents 3, 4 and 5 that have been found to be
conditionally exempt under s 47E(c) of the FOI Act:
Document 3 – I am satisfied that the determination in the Original
Decision that information in Document 3 is conditionally exempt because
it relates to management of personnel, is correct. I do so on the basis that
the effect of release could reasonably be expected to create a
substantial adverse impact on the relationship of trust and confidence
between the employee and the ABC and hinder the ability of the ABC to
manage personnel.
The relationship of trust and confidence is central to the employment
relationship and managers must be allowed to communicate freely in
order to coach and provide on the job training and feedback to
employees about their work. Employees are entitled to expect that in the
ordinary course, communication about these matters will be confidential
and private. The candour of employees in responding to these types of
communications is critical to the proper and efficient operations of an
agency (see 6.117 of the Guidelines) and release of information in
Document 3 would adversely and substantially effect the proper and
efficient operation of the ABC.
3
Document 4 - I am satisfied that the determination in the Original
Decision that information in Document 4 is conditionally exempt because
it relates to management of personnel, is correct for the reasons stated
above.
Document 5 - I am satisfied that the determination in the Original Decision that
information in Document 5 is conditionally exempt because it relates to
management of personnel, is correct for the reasons stated above.
The Public Interest
I turn now to consideration of the public interest test in relation to the information in
Documents 1,3,4 and 5 that were found to be conditionally exempt under s47E(c) and
(d) of the FOI Act.
Under the FOI Act conditionally exempt material must be released unless, in the
circumstances, access at this time would, on balance, be contrary to the public
interest (section 11 A (5) of the FOI Act).
I have considered the following factors relevant to this matter in favour of disclosure,
namely:
(a) promoting the objects of the Act; and
(b) informing debate on a matter of public importance, including to allow or assist
inquiry into possible deficiencies in the conduct or administration of an
agency or official and to reveal or substantiate that an agency or official has
engaged in misconduct or negligent, improper or unlawful conduct (see 6.19
FOI Guidelines).
and have considered the following factors against disclosure:
(c) protecting individuals from unreasonable interference with their privacy;
(d) protecting staff from occupational health and safety risks; and
(e) maintaining the relationship of trust and confidence in the employment
relationship.
The material in question relates solely to the personal use of social media by an ABC
employee. The social media activity occurred on their private social media account
and did not occur on an ABC official social media account and was not related to any
content published by the ABC on the subject matter. As such I see little or no
contribution to promoting the interests of the Act or informing debate on a matter of
public interest by releasing the information.
To the extent there is any public interest in disclosure, I do not believe that they
outweigh the adverse, significant, and real risks to the employee’s psychological
safety and warrant a breach of their reasonable expectation to privacy and confidence
4
link to page 5
Accordingly, I have concluded that disclosure would, on balance, be contrary to the
public interest and the information in Documents 1, 3, 4 and 5 is exempt in part or full
under s 47E (b) and (c) of the FOI Act.
Deliberative Processes
I confirm that parts of Documents 2 and 4 are conditionally exempt under s47(C) and
agree that the relevant sections refused are deliberative in that they generally refer
to the process of weighing up or evaluating, competing arguments or considerations
and involve the process of reflection, for example, upon the wisdom and expediency of
a proposal, a particular decision or course of action
1.
Section 6.58 of the Guidelines describes a 'deliberative process' as an action which:
. .involves the exercise of judgement in developing and making a selection from
different options: 'The action of deliberating, in common understanding, involves
the weighing up or evaluation of competing arguments or considerations that may
have a bearing upon one's course of action. In short, the deliberative process
involved in the functions of an agency are its thinking processes-the processes of
reflection, for example, upon the wisdom and expediency of a proposal, a
particular decision or a course of action.
The material in question is more than factual material or operational information and
falls squarely within the definition of a deliberative process.
Having determined that the material is conditionally exempt I now turn to consider the
public interest.
In doing I have considered the following factors in favour of disclosure, namely:
S47F(2)
(a) promoting the objects of the Act; and
(b) revealing the reason for government decision and any background that
informed that decision enhancing scrutiny of government decision making
(see 6.19 FOI Guidelines).
and have considered the following factors against disclosure:
(c) could reasonably be expected to prejudice an agency's ability to deliberate
on matters including management of its personnel; and
(d) could reasonably be expected to prejudice an agency's ability to document
and consider recommendations, opinions and options with decision-makers.
1 See
ReJE Waterford and Department of Treasury (No 2) [1984] AATA 67. See
British American Tobacco
Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19, [15}-[22]. See also
Carver and Fair Work Ombudsman [2011] AICmr 5 in relation to code of conduct investigations See also
6.58 FOI Guidelines.
5
link to page 6 link to page 6
Having regard to the above factors, the case law correctly cited in the Original
Decision defining deliberative matter
2 together with the circumstances of this matter,
I find that the public interest considerations favouring release do not outweigh those
weighing against release.
Release could reasonably be expected to prejudice the ABC’s ability to deliberate on
matters involving management of its personnel and could reasonably be expected to
prejudice its ability to document and consider recommendations, opinions and options
with communication personnel about how to respond to media enquiries.
I do not believe in light of the fact that this matter involves the personal use of social
media by an ABC employee that release furthers the objectives of FOI Act or increases
scrutiny of government decision making.
Personal Privacy
I concur with the Original Decision in relation to the redactions made to Documents 2,
3, 4 and 5 on the basis that they are conditionally exempt for reasons of personal
privacy (see s47F FOI Act). I agree that disclosure of the information would result in an
unreasonable disclosure of personal information.
Paragraph 6.138 of the FOI Guidelines considers the issue of ‘unreasonable disclosure’
and states:
‘the personal privacy exemption is designed to prevent the unreasonable invasion
of third parties' privacy. The test of 'unreasonableness' implies a need to balance
the public interest in disclosure of government-held information and the private
interest in the privacy of individuals.’
In considering what is unreasonable, the AAT in Re Chandra and Minister for
Immigration
3 stated relevantly that decision maker must consider all the
circumstances including the nature of the information that would be disclosed, the
circumstances in which the information was obtained and the likelihood of the
information being information that the person concerned would not wish to have
disclosed without consent.
In considering whether it would be unreasonable to disclose personal information,
without the consent of the relevant individual, I have had regard to the factors listed
ins 47F(2), in particular:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or
have been) associated with the matters dealt with in the document; an
(c) the availability of the information from publicly accessible sources.
2 LK’ and Department of the Treasury (Freedom of Information) [2017] AICmr47 (23 May 2017)
3 [1984] AATA 437 at 259
6
The relevant employees to whom the personal information relates have not consented
to the release of their personal information. As stated previously in this review the
potential for the employees concerned to be exposed to online trolling and abuse as a
result of release of personal information is a real and significant liklihood. In light of
this and their refusal to grant consent, the release of this information would cause the
employee’s stress. Disclosure of the private information of the employees in these
circumstances will not advance the objectives of the FOI Act or the public interest in
government transparency and integrity sufficiently to outweigh the risk to the health
and safety of employees.
I am satisfied that granting access to the limited conditionally exempt material in the
Documents 2, 3, 4 and 5 would, on balance, be contrary to the public interest.
Third Parties – private information
Regarding the private information of third parties, I am of the view that that the image
of one party is exempt because it is different to the image that appears publicly with
her professional identity (in that regard it is similar to the use of a professional name
different to the one used in private dealings).
I am however of the view that the mobile phone numbers of both third parties is private
information and is exempt and should not be released. The mobile numbers do not
appear on their professional social media accounts or are provided online by their
employer. I do not believe that there are sufficient public interest considerations to
warrant disclosure of their mobile numbers. Their email addresses are however
publicly available on their professional social media accounts and therefore no
expectation to privacy arises.
The third parties have review rights that have not yet expired and as a result the
Original Decision to defer release of this private information until these rights have
been exercised and/or determined is affirmed.
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The third parties have also made submissions that their correspondence with the ABC
about the personal social media activity of the ABC employee concerned, is of a
personal nature. Given the correspondence relates to content published by their
employer about the subject matter of their correspondence, I do not believe that their
can be any reasonable expectation of privacy and the information should be disclosed.
Again, however I note their review rights are yet to expire and release of this
information remains deferred.
Right of review
If you are dissatisfied with this decision, you can apply for review by the Australian
Information Commissioner, whose contact details are:
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001
Tel: 1300 363 992 Fax 02 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
Website: www.oaic.gov.au
In making your application to the Information Commissioner, you need to provide an
address for notices to be sent (this can be an email address) and a copy of this
decision. You may also wish to inform the Information Commissioner of the reasons
for seeking review.
Yours sincerely
Vanessa MacBean
Head, Employee Relations
FOI Internal Reviewer, authorised pursuant to s 23 FOI Act
Australian Broadcasting Corporation
8
Document Outline
- CONFIDENTIAL
- Reasons
- Management of Personnel
- I confirm that Document 1 is conditionally exempt under the provisions of s 47E(c) of the FOI Act which deals with the substantial adverse effect on an agency’s ability to manage personnel created by the release of documents.
- As cited by Ms Edwards Section 47E(c) of the FOI Act conditionally exempts documents containing information, the disclosure of which would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of person...
- Ms Edwards also references Paragraph 6.114 of the FOI Guidelines which provides that for the exemption to apply the documents must relate to the management of personnel. This has been defined to include the broader human resources policies and activi...
- If the above limb of s47E(c) is not satisfied, and for the avoidance of doubt I believe that it is, the exemption also applies if the documents relate to the assessment of personal including the broader performance management policies and activities c...
- In my capacity as the Head of Employee Relations for the ABC I am acutely aware of the increase of incidents of online abuse and trolling of ABC journalists and the impacts on their well-being. The ABC has put in place significant measures in recent y...
- Document 5 - I am satisfied that the determination in the Original Decision that information in Document 5 is conditionally exempt because it relates to management of personnel, is correct for the reasons stated above.
- The Public Interest
- I turn now to consideration of the public interest test in relation to the information in Documents 1,3,4 and 5 that were found to be conditionally exempt under s47E(c) and (d) of the FOI Act.
- Under the FOI Act conditionally exempt material must be released unless, in the circumstances, access at this time would, on balance, be contrary to the public interest (section 11 A (5) of the FOI Act).
- I have considered the following factors relevant to this matter in favour of disclosure, namely:
- (a) promoting the objects of the Act; and
- (b) informing debate on a matter of public importance, including to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official and to reveal or substantiate that an agency or official has engaged in mi...
- and have considered the following factors against disclosure:
- (c) protecting individuals from unreasonable interference with their privacy;
- (d) protecting staff from occupational health and safety risks; and
- (e) maintaining the relationship of trust and confidence in the employment relationship.