V Champion
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 450
Dear V Champion
Freedom of Information request
1. I am writing about your Freedom of Information (FOI) request under the
Freedom of
Information Act 1982 (FOI Act) made on 30 January 2023 for access to documents held
by the Australian Public Service Commission (Commission).
2. On 1 February 2023, the Commission advised you that the timeframe for responding to
your request was extended by 30 days under subsection 15(6) of the FOI Act to
31 March 2023.
3. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available f
rom www.legislation.gov.au.
Documents relevant to your request
4. You requested access to documents on the following terms:
“I refer to the survey currently being conducted by the APSC in relation APS Bargaining.
That survey was notified to members of the APS by way of an email sent by APSC Deputy
Commissioner, Workplace Relations Bargaining Taskforce, Peter Riordan. The platform
used to conduct the survey appears to be provided by Qualtrics.
Under the FOI Act, I request a copy of the contract entered into between the APSC (obo
the Commonwealth) with the survey platform provide.”
5. As part of your request, you consented to the exclusion of any fees and charges, and
personal information of any person who was not, at the relevant time, a member of the
APS or a statutory officer. This information has been excluded under section 22 of the
FOI Act.
6. I have identified two (2) document in scope of your request.
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
7. Please be advised the Commission’s contract with Qualtrics was made under the Cloud
Services Panel arrangement which is managed by the Digital Transformation Agency
(DTA). The Commission does not hold a copy of the Panel Head Agreement between
DTA and Qualtrics.
Decision
8. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
9. I have decided to grant partial access to both documents because I consider parts of the
documents are exempt under sections 47F and 47G of the FOI Act.
10.
Attachment A sets out the grounds on which the documents are exempt.
11. My reasons are set out in
Attachment B.
Contacts
12. If you require clarification on matters in this letter please contact the Commission’s FOI
Officer by telephone on (02) 6202 3720 or by email a
t xxx@xxxx.xxx.xx.
Review rights
13. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
Mitchell Little
Authorised FOI decision maker
31 March 2023
ATTACHMENT A
SCHEDULE OF DOCUMENTS
D
ocument Description
Exemptions
1
Qualtrics Contract
Section 47F (personal privacy) and section 47G
(business information) of the FOI Act applies.
2
Variation of Contract
Section 47F (personal privacy) of the FOI Act
applies.
ATTACHMENT B
Reasons for decision
1. The following paragraphs outline my reasons for determining the specified exemptions set
out in
Attachment A.
2. In making my decision, I have had regard to:
the terms of your request;
the nature and content of the documents that fall within scope of your request;
the relevant provisions of the FOI Act and case law concerning those provisions;
submissions by Qualtrics received following formal third party consultation; and
FOI Guidelines issued by the Australian Information Commissioner.
Section 47F of the FOI Act – personal information
3. Section 47F of the FOI Act provides that a document is conditionally exempt if it would
involve the unreasonable disclosure of personal information about any person.
4. Personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable whether:
the information or opinion is true or not; and
the information or opinion is recorded in a material form or not.
5. I consider both documents contain personal information of public servants. Document 1
contains the name and phone number of a non-SES level officer. Document 2 contains the
name of a non-SES level officer and digital signatures of both a non-SES and SES level
officer.
6. Relevant to personal information of public servants, under the FOI Act there is no
presumption that agencies and ministers should start from the position that the inclusion of
the full names of staff in documents increases transparency and the objects of the FOI Act:
Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020]
AATA 4557 at [83].
7. With the substantial increase in electronic requests and related correspondence, a rise in
anonymous applications as well as requests affecting the safety and wellbeing of
employees, the Commission now assesses whether a disclosure of public servants’ personal
information in requests is unreasonable under section 47F of the FOI Act.
8. In considering what is unreasonable, the Administrative Appeals Tribunal in
Re Chandra
and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51] stated that:
“
whether a disclosure is ‘unreasonable’ requires … a consideration of all the
circumstances, including the nature of the information that would be disclosed, the
circumstances in which the information was obtained, the likelihood of the information
being information that the person concerned would not wish to have disclosed without
consent, and whether the information has any current relevance… it is also necessary in
my view to take into consideration the public interest recognised by the Act in the
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disclosure of information… and to weigh that interest in the balance against the public
interest in protecting the personal privacy of a third party.”
9. The FOI Guidelines further provide, at paragraph 6.143:
“
As discussed in the leading s 47F IC review decision of ‘FG’ and National Archives of
Australia [2015] AICmr 26, other factors considered to be relevant 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 collection 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 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 public interest in government
transparency and integrity.”
10. I have had regard to relevant case law and the matters in subsection 47F(2) of the FOI Act
and consider the release of certain personal information of public servants would be
unreasonable because:
the individuals’ personal information, in particular their names, will identify them;
the individuals’ names, phone numbers and signatures are generally not well known or
publicly available;
the disclosure of this information will not advance scrutiny of any government
decisions falling within the scope of your FOI request, particularly regarding non-SES
staff who are not relevant decision-makers and act under the direction of senior staff
within relevant agencies in the course of their ordinary duties;
the release of some of the individuals’ personal information may cause stress for them
or other detriment; and
the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
11. Considering the above factors, I have decided that to the extent the documents include
personal information of non-SES staff members and digital signatures of SES staff
members, those parts of the documents are conditionally exempt from disclosure under
section 47F of the FOI Act.
Section 11A – public interest test
12. Subsection 11A(5) of the FOI Act provides that an agency must give access to a document
if it is conditionally exempt unless access to the document would, on balance, be contrary
to the public interest.
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13. I have considered the public interest exemption factors in favour of disclosure at
subsection 11B(3) of the FOI Act, including the extent to which access to the document
would promote the objects of the FOI Act and inform debate on a matter of public
importance.
14. I acknowledge that there are factors that favour disclosure. Disclosure would:
increase scrutiny, discussion, comment and review of the Government’s activities; and
inform debate on a matter of public importance.
15. However, the public interest factors favouring disclosure must be balanced against any
public interest factors against disclosure:
‘ACF’ and Australian Public Service Commission
(Freedom of information) [2022] AlCmr 73 (31 October 2022) at [69].
16. I have identified the following factors as weighing against disclosure:
disclosure of individuals’ personal information will not advance any scrutiny of any
decisions falling within the scope of your FOI request;
disclosure would prejudice individuals’ right to privacy;
disclosure could lead to unwarranted approaches to the non-SES staff member which
would adversely impact their ability to perform their role and functions, noting that
general enquiry phone numbers and email addresses are available; and
there is a public interest in APS employers fulfilling their obligations under the
Work
Health and Safety Act 2011, in particular by preventing the exposure of staff members
from potential harassment or threats in a public forum.
17. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining whether
access would be in the public interest. I have not considered these factors.
18. On balance, I find disclosure of parts of the documents would be contrary to the public
interest. To the extent the material contained in the documents is conditionally exempt
under section 47F of the FOI Act, those parts are exempt from disclosure.
Section 47G of the FOI Act – business information
19. Section 47G of the FOI Act provides that a document is conditionally exempt if
disclosure of information concerning a person in respect of his or her business or
professional affairs or concerning the business, commercial or financial affairs of an
organisation or undertaking would, or could reasonably be expected to:
affect that person adversely in respect of his or her lawful business or professional
affairs or that organisation or undertaking in respect of its lawful business,
commercial or financial affairs; or
prejudice the future supply of information to the Commonwealth or an agency for the
purpose of the administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency.
20. I have decided that disclosure of the relevant material in Document 1 would have an
unreasonable adverse effect on the commercial or financial affairs of Qualtrics. The test of
reasonableness applies not to the claim of harm but to the objective assessment of the
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expected adverse effect. Notably, the operation of this business information exemption
depends on the effect of disclosure, rather than the precise nature of the information itself.
21. The relevant material in Document 1 contains information that is confidential and
commercially sensitive in nature. Specifically, it is information about how Qualtrics deliver
their software and services. Qualtrics is currently known for providing experience
management software and services, and the disclosure of this material would damage their
competitiveness.
22. Disclosure of the relevant material would have an unreasonable adverse effect on the
commercial or financial affairs of Qualtrics as it will expose this information to
competitors. Competitors could leverage the information to mirror, or improve on the
service-offering Qualtrics currently provides, thereby diminishing Qualtrics’ competitive
capabilities.
23. Considering the above factors, I have decided that to the extent Document 1 includes
business information about Qualtrics, and processing this request would involve an
unreasonable disclosure of business information about Qualtrics, those relevant parts of the
documents are conditionally exempt from disclosure under section 47G of the FOI Act.
Section 11A – public interest test
24. Subsection 11A(5) of the FOI Act provides that an agency must give access to a document
if it is conditionally exempt unless access to the document would, on balance, be contrary
to the public interest.
25. I have considered the public interest exemption factors in favour of disclosure at
subsection 11B(3) of the FOI Act, including the extent to which access to the document
would promote the objects of the FOI Act and inform debate on a matter of public
importance.
26. I acknowledge that there are factors that favour disclosure. Disclosure would:
increase scrutiny, discussion, comment and review of the Government’s activities; and
inform debate on a matter of public importance.
27. However, the public interest factors favouring disclosure must be balanced against any
public interest factors against disclosure:
‘ACF’ and Australian Public Service Commission
(Freedom of information) [2022] AlCmr 73 (31 October 2022) at [69].
28. I have identified the following factors as weighing against disclosure:
disclosure of the relevant material will reveal confidential and commercially sensitive
information of Qualtrics and could reasonably be expected to prejudice the competitive
commercial activities of Qualtrics; and
disclosure of this information could set a dangerous precedent for disclosure of
confidential and commercially sensitive information contained in contracts between
government and suppliers, and could impact the willingness of potential suppliers to
apply for tenders in future.
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29. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining whether
access would be in the public interest. I have not considered these factors.
30. On balance, I find disclosure of parts of the documents would be contrary to the public
interest. To the extent the material contained in the documents is conditionally exempt
under section 47G of the FOI Act, those parts are exempt from disclosure.
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Seeking review of a Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (the FOI Act)
you may be able to apply for a review of the decision. Under sections 54 and 54L of the FOI
Act, you can apply for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service
Commission; and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will
consider all aspects of the original decision and decide whether it should change. An
application for internal review must be made in writing within 30 days of receiving this letter
to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
in writing for a review by the Office of the Australian Information Commissioner (the OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website:
www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
