Scott P
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 457
Dear Scott P,
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 1 February 2023 for access to documents held by
the Australian Public Service Commission (Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available fr
om www.legislation.gov.au.
Documents relevant to your request
3. You requested access to documents in the following terms:
Can I please request any documents or email correspondence from September 2022
related to the following?
Has Senator Gallagher or any other government member tasked the APSC to instruct
APS agencies and departments to review their reliance and spending on Consultants
and contractors? Or has the senator issued instructions to the APSC to develop
policies to review contractor hiring processes within the APS?
4. Your request was accompanied by the following context:
Regarding the speech ALBANESE GOVERNMENT'S APS REFORM AGENDA
delivered on the 13th of October 2022 at the Institute of Public Administration Australia
by Senator the Hon. Katy Gallagher. In the speech, Senator Gallagher referred to the
shift from the APS's reliance on consultants and contractors within the APS.
“Too many resources flowed away from the APS and towards contractors, consultants
and labour-hire firms, decimating functions that should sit at the heart of a strong
public service – like critical and creative thinking.
In some departments, the public service became more like an administrative service to
ministers, with core work like policy development being shipped out to consultants.
B Block, Treasury Building
Parkes Place West PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2600
There was the public downplaying of policy development.
The devaluing or disposal of years of experience and knowledge.
And a casualisation of the workforce.
A lack of interest in investing, nurturing, planning of the public service as an institution
in itself.
This changes under the Albanese Government”
Gallagher, K. (2022). ALBANESE GOVERNMENT'S APS REFORM AGENDA.
Decision on your FOI request
5. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
6. I have identified three (3) documents within scope of your request.
7. These documents are:
Document 1: Ministerial Submission signed by the Minister for Finance re: The
Audit of Employment.
Document 2: Attachment A to the Ministerial Submission – Milestones and
Timeframes for the Audit of Employment; and
Document 3:
Attachment B to the Ministerial Submission – Government Sector
agencies in scope of the Audit of Employment.
8. I have decided to:
grant partial access to Documents 1 and 2; and
grant full access to Document 3.
9.
Attachment A sets out the grounds on which Documents 1 and 2 are partially exempt.
10. My reasons are set out in
Attachment B.
Deletion of exempt matter or irrelevant material
11. Section 22 of the FOI Act requires an agency to provide access to an edited version of a
document where it is reasonably practicable to edit the document to remove exempt
material or material that is irrelevant to the scope of the request.
12. Relevant to deleting exempt or irrelevant content from a document, the Guidelines
provide:
3.98 Applying those considerations, an agency or minister should take a common sense
approach in considering whether the number of deletions would be so many that the
remaining document would be of little or no value to the applicant. Similarly, the
purpose of providing access to government information under the FOI Act may not be
served if extensive editing is required that leaves only a skeleton of the former document
that conveys little of its content or substance.
13. I consider the objects of the FOI Act will not be served by providing access to edited
versions of the documents because extensive editing is required that would leave only a
skeleton of the former documents, conveying little content or substance.
14. I also consider it is not reasonably practicable to prepare edited versions of the
documents, having regard to the nature and extent of the modification required, and the
resources available to modify the documents.
Contacts
15. If you require clarification on matters in this letter please contact the Commission’s FOI
Officer by telephone on (02) 6202 3500 or by email a
t xxx@xxxx.xxx.xx.
Review rights
16. 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
3 March 2023
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document Description
Exemptions
1
Ministerial Submission signed by Sections 47C (deliberative process)
the Minister for Finance re: The and 47F (personal privacy) of the FOI
Audit of Employment.
Act apply.
2
Attachment A to the Ministerial Section 47C (deliberative process) of
Submission – Milestones and the FOI Act applies.
Timeframes for the Audit of
Employment.
3
Attachment B to the Ministerial No exemptions apply.
Submission – Government Sector
agencies in scope of the Audit of
Employment.
ATTACHMENT B
Reasons for decision
1. In making my decision on your request, I have had regard to:
the terms of your request;
the contents of the documents;
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner.
Section 47C – Documents subject to deliberative processes
2. Section 47C of the FOI Act conditionally exempts documents containing deliberative
matter. Deliberative matter generally consists of:
an opinion, advice or recommendation that has been obtained, prepared or recorded; or
a consultation or deliberation that has taken place
in the course of, or for the purposes of, the deliberative purposes involved in the functions
of an agency, Minister or the Commonwealth Government.
3. A deliberative process includes the recording or exchange of opinions, advice,
recommendations, a collection of facts or opinions and interim decisions and deliberations.
4. On review, Documents 1 and 2 contain deliberative material. Both Documents 1 and 2
contain material that includes opinions expressed by government staff on the options
available for how the Minister for Finance could progress the Audit of Employment.
5. For the reasons outlined above, I am of the view that both documents contain deliberative
matter and those parts are therefore conditionally exempt under section 47C of the FOI Act.
Section 47F – personal information
6. 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.
7. 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.
8. I consider that Document 1 contains such personal information. Specifically, the name,
position title, and direct phone number of a non-SES level staff member.
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9. I have had regard to the matters I must consider under subsection 47F(2) of the FOI Act in
determining whether the disclosure of the personal information would involve the
unreasonable disclosure of personal information.
10. 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:
…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…
and to weigh that interest in the balance against the public interest in protecting the
personal privacy of a third party…
11. Other factors to be considered include the nature, age and current relevance of the
information, any opposition to disclosure held by the person that the personal information
relates to, and the circumstances of an agency’s collection and use of the information
(‘
FG’ and
National Archives of Australia [2015] AICmr 26 at [47]).
12. I note that in
Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 (9 November 2020), Deputy President S A Forgie found
(at [130]):
An individual may include his or her direct telephone number in correspondence
directed to other persons. Unless published on an agency’s website or made public in
some other way, such as on a pamphlet or report available to the public, I consider
that disclosure of an individual’s telephone number in his or her place of employment
is unreasonable. Its disclosure will provide an avenue by which others may choose to
express their displeasure with the individual or with that for which he or she is
responsible but its disclosure does 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.
13. In relation to the question of whether disclosure would be unreasonable, the FOI
Guidelines provide, at paragraph 6.144:
For example, in Colakovski v Australian Telecommunications Corp, Heerey J
considered that ‘... if the information disclosure were of no demonstrable relevance to
the affairs of government and was likely to do no more than excite or satisfy the
curiosity of people about the person whose personal affairs were disclosed ...
disclosure would be unreasonable’. This illustrates how the object of the FOI Act of
promoting transparency in government processes and activities needs to be balanced
with the purpose of s 47F to protect personal privacy, although care is needed to
ensure that an FOI applicant is not expected to explain their reason for access to
contrary to s 11(2).
14. Relevant to personal information of certain 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
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Act:
Warren; Chief Executive Officer, Services Australia and (Freedom of information)
[2020] AATA 4557 at [83].
15. I have identified the following factors that, in my view, do not support the release of this
personal information under section 47F of the FOI Act:
the individual’s personal information, in particular their name, will identify them;
the personal information is unique and relates specifically to the individual, and is
generally not well known or publicly available; the FOI Act does not control or restrict
the subsequent use or dissemination of information released under the FOI Act;
the disclosure of this information will not advance scrutiny of any decisions falling
within scope of your FOI request;
the disclosure of this information could expose the individual to unsolicited and
inappropriate approaches by external parties, despite the existence of more appropriate
channels designed specifically for receiving and actioning general calls and enquiries;
release of the individual’s personal information may cause stress for them or other
detriment; and
disclosure would prejudice the individual’s right to privacy.
16. I have therefore decided to the extent that the documents include personal information of
the non-SES level staff member, those parts are conditionally exempt from disclosure under
section 47F of the FOI Act because disclosure would involve the unreasonable disclosure
of their personal information.
Section 11A – public interest test
17. 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.
18. 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.
19. I have identified the following factors as weighing against disclosure:
disclosure of the individual’s personal information will not advance any scrutiny of any
decisions falling within the scope of your FOI request;
disclosure would prejudice the individual’s right to privacy;
disclosure could lead to unwarranted approaches to the individual which would
adversely impact their ability to perform their role and functions, noting that general
enquiry phone numbers and email addresses are available;
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;
disclosure could reasonably interfere with the cooperation between agencies;
- 8 -
a precedent of public disclosure of advice given as part of a Ministerial Submission
would result in concerns existing in the open and honest nature of advice being
provided, which may then hinder future deliberations and decision making processes
for agencies and the minister’s office as a whole, and future Ministerial Submissions
being prepared with a different audience in mind, which would compromise the quality
of the advice being prepared for the minister; and
endangering the proper working relationship that an agency has with its minister and
its ability to provide the minister with honest advice confidentially would be contrary
to the public interest.
20. 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.
21. On balance, I find disclosure of some parts of Documents 1 and 2 would be contrary to
the public interest. To the extent that the material contained in Documents 1 and 2 are
conditionally exempt under sections 47C and 47F of the FOI Act, those parts are exempt
from disclosure.
ATTACHMENT C
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)
may give you the right 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
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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
