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 fel 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 stil 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).
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 conditional y 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 conditional y 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…counsel ing [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 trol ing 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 al egation (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 matters. This includes an
expectation that HR matters personal to them wil 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 wil
result in employees being less psychological y safe. A failure to provide a psychological y 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 conditional y 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 conditional y
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 conditional y 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 al owed 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 wil 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 substantial y effect the proper and efficient operation of the ABC.
Document 4 - I am satisfied that the determination in the Original Decision that information in
Document 4 is conditional y 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 conditional y 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 conditional y exempt under s47E(c) and
(d) of the FOI Act.
link to page 4
Under the FOI Act conditional y 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 fol owing 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 al ow 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 fol owing 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. 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 conditional y exempt under s47(C) and agree that
the relevant sections refused are deliberative in that they general y 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:
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.
link to page 5
...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.
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 conditional y 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:
2 LK’ and Department of the Treasury (Freedom of Information) [2017] AICmr47 (23 May 2017)
link to page 6
‘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 al 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 wel 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; and
(c) the availability of the information from publicly accessible sources.
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 trol ing and abuse as a result of release of
personal information is a real and significant likelihood. 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 wil 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 conditional y 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
3 [1984] AATA 437 at 259
and/or determined is affirmed.
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
Document Outline
