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AEC results from 2016 APS Staff Census

Sarah McAndrew made this Freedom of Information request to Australian Electoral Commission

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From: Sarah McAndrew

Delivered

Dear Australian Electoral Commission,

Under the FOI Act, could you please provide me with the reports provided by the APSC to AEC with the results, both departmentally and by branch of the 2016 APS Staff Census Survey.

Yours faithfully,
Sarah McAndrew

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Australian Electoral Commission

Thank you for contacting us.

This is an automatic response from the Australian Electoral Commission to confirm we have received your email.

For more information on enrolling to vote, federal elections or the AEC, visit www.aec.gov.au.

Please do not respond to this email.

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From: Owen Jones
Australian Electoral Commission


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Sarah McAndrew
Right to Know Organisation

Dear Ms McAndrew

I refer to your email dated 21 June 2017 8:35 AM in which you request
(‘your FOI Request’) to the Australian Electoral Commission (‘AEC’) under
the [1]Freedom of Information Act 1982 for access to documents relating to
2016 APS Staff Census Survey.

I have taken your request to be for:

the reports provided by the APSC to AEC with the results, both
departmentally and by branch of the 2016 APS Staff Census Survey

We received your request on 21 June 2017 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 21 July 2017. The period of
30 days may be extended if we need to consult third parties, impose a
charge or for other reasons. We will advise you if this happens.

You will be notified of any charges in relation to your request as soon as
possible, before we process any requested documents or impose a final
charge.

Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [2]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)

We will contact you using the email address that you provided. Please
advise if you would prefer us to use an alternative means of contact. If
you have any questions, please contact me at:

email:                             [email address]

fax:                                02 6293 7657

post:                              Locked bag 4007, Canberra ACT 2601

telephone:                      02 6271 4528

Yours sincerely

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[3]Australian Electoral Commission logo [4]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Owen Jones
Australian Electoral Commission


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Ms Sarah McAndrew
Right to Know

Dear Ms McAndrew

I refer to your request (‘FOI Request’) to the Australian Electoral
Commission (‘AEC’) for access to documents relating to the 2016 APS Staff
Census Survey about the AEC under the Freedom of Information Act 1982 (FOI
Act).

Obligation to consult

As your request covers documents that contain information concerning the
business, commercial or financial affairs of an organisation, or a
person’s business or professional affairs the AEC is required to consult
with the person or organisation concerned (under section 27 of the FOI
Act) before making a decision on the release of those documents.

Extension of the processing period

For this reason the period for processing your request has been extended
by 30 days in order to allow our agency time to consult with that person
or organisation (section 15(6) of the FOI Act). The processing period for
your request will now end on 21 August 2017 (allowing for the weekend).

The consultation mechanism under section 27 applies when we believe the
person or organisation concerned may wish to contend that the requested
documents are exempt because their release would disclose trade secrets or
commercially valuable information or may adversely affect their business
or financial affairs. We will take into account any comments we receive
from the person or organisation but the final decision about whether to
grant you access to the documents you requested rests with the AEC.

More information

More information about exemptions under the FOI Act is available in Fact
Sheet 8 on the Office of the Australian Information Commissioner’s
website:
[1]www.oaic.gov.au/freedom-of-information/foi-resources/freedom-of-information-fact-sheets/.

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[2]Australian Electoral Commission logo [3]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Owen Jones
Sent: Wednesday, June 21, 2017 11:05 AM
To: [FOI #3649 email]
Cc: INFO <[AEC request email]>; Legal Services - NO
<[email address]>
Subject: RE: Freedom of Information request - AEC results from 2016 APS
Staff Census [SEC=UNCLASSIFIED]

 

Sarah McAndrew
Right to Know Organisation

Dear Ms McAndrew

I refer to your email dated 21 June 2017 8:35 AM in which you request
(‘your FOI Request’) to the Australian Electoral Commission (‘AEC’) under
the [4]Freedom of Information Act 1982 for access to documents relating to
2016 APS Staff Census Survey.

I have taken your request to be for:

the reports provided by the APSC to AEC with the results, both
departmentally and by branch of the 2016 APS Staff Census Survey

We received your request on 21 June 2017 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 21 July 2017. The period of
30 days may be extended if we need to consult third parties, impose a
charge or for other reasons. We will advise you if this happens.

You will be notified of any charges in relation to your request as soon as
possible, before we process any requested documents or impose a final
charge.

Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [5]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)

We will contact you using the email address that you provided. Please
advise if you would prefer us to use an alternative means of contact. If
you have any questions, please contact me at:

email:                             [6][email address]

fax:                                02 6293 7657

post:                              Locked bag 4007, Canberra ACT 2601

telephone:                      02 6271 4528

Yours sincerely

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[7]Australian Electoral Commission logo [8]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Owen Jones
Australian Electoral Commission


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Sarah McAndrew
Right to Know Organisation

Dear Ms McAndrew

I refer to your email dated 21 June 2017 8:35 AM to the Australian
Electoral Commission (‘AEC’) in which you request (your ‘FOI Request’)
access under the [1]Freedom of Information Act 1982 (the ‘FOI Act’)
access to information about the outcomes for the AEC from the 2016 APS
employee census.

2                    I am writing today to give you a decision about
access to documents that you requested in your FOI Request.

Summary

3                    I, Owen Jones, Senior Lawyer of the AEC, am an
officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests.

4                    Specifically you sought access to:

Reports provided by the APSC to the AEC with the results, both
departmentally and by branch of the 2016 APS Staff Census Survey.

5                    I identified 30 documents that fell within the scope
of your request (the ‘Relevant Documents’’).

6                    I did this by directing inquiries to the AEC’s People
Services Branch which is the business owner for procuring the outcome for
the AEC from the 2016 APS employee census. The AEC did not receive an
individual report for about the results for each group within the AEC that
had less than 10 respondents.

7                    The schedule of relevant documents in the attached
Acrobat file LS6084 Decision Attachment A.pdf (‘Attachment A’) provides a
description of each document that falls within the scope of your request
and the access decision for each of those documents.

8                    With regard to the documents that you requested (set
out in Attachment A), I have decided to refuse access to 30 documents.

9                    More information, including my reasons for my
decision, is set out below.

10                 You will recall that in my email to you dated

Decision and reasons for decision

Decision

11                 With regard to the documents identified in Attachment
A, I have decided to refuse access to the Relevant Documents:

(a)        under section 47E (Public interest conditional
exemptions—certain operations of agencies) of the FOI Act; and, in the
alternative,

(b)        under section 47F (Public interest conditional
exemptions—personal privacy) of the FOI Act, as providing access would be
contrary to the public interest; and, in the alternative,

(c)        under section 47G (Public interest conditional
exemptions—business) of the FOI Act, as providing access would be contrary
to the public interest.

Material taken into account

12                 I have taken the following material into account in
making my decision:

(a)        the content of the Relevant Documents;

(b)        the FOI Act, specifically sections 22, 27, 47, 47E, 47F and
47G;

(c)        the guidelines (‘[2]FOI Guidelines’] issued by the Australian
Information Commissioner under section 93A of the FOI Act, specifically
paragraphs 5.194 – 5.206, 6.1 – 6.28 and 6.95 – 6.123, 6.124 – 6.213;

(d)        the principles of law in [3]Attorney-General v Honourable Mark
Dreyfus [2016] FCAFC 119;

(e)        the 2016 State of the Service Report; and

(f)         the views of a third party consulted by the AEC under section
27 of the FOI Act.

Reasons

13                 Attachment A indicates each document to which access is
refused. My reasons for refusing access are given below.

Documents disclosing trade secrets or commercially valuable information

14                 I consulted the Australian Public Service Commission
(APSC) about the FOI Request to ascertain the views of the APSC about
whether section 47 of the FOI Act applies the Requested Documents.

15                 The outcome of that consultation was that the APSC made
no contention about the application of section 74 of the FOI Act to
Document No. 5.

Other possible consultations

16                 The Requested Documents contain:

(a)        personal information about certain individuals to which section
47F of the FOI Act applies; and

(b)        about the professional affairs of certain individuals to which
section 47G of the FOI Act applies,

namely the Senior Executives heading the relevant parts of the AEC.

17                 The identity of each individual referred to in
paragraph 17 is ascertainable from the Organisation chart and leadership
structure published in the AEC Annual Report 2015-16.

18                 Having regard to the decision in [4]Attorney-General v
Honourable Mark Dreyfus [2016] FCAFC 119, I determined for the purposes
of  that my consideration about the reasonableness of giving access to
that information in each of the Requested Documents did not justify
consulting each relevant individual because the objections to giving
access to it were patently obvious. I deal with those objections below.

Finding on uses of Document

19                 I found that the AEC uses the Requested Documents to
provide confidential feedback to senior staff in relation to matters
reported that fall within their responsibilities.

Public interest conditional exemptions—certain operations of agencies

20                 The Requested Documents contain information to which
paragraph 47E(c) and (d) of the FOI Act applies, namely key results from
the 2016 APS employee census.

21                 The Australian Public Service Commissioner (the ‘APSC’)
is required by section 44 of the Public Service Act 1999 to give a report
each year on the state of the APS for presentation to the parliament (the
‘State of the Service Report’).

22                 The APSC publishes the annual State of the Service
Reports at
[5]https://stateoftheservice.apsc.gov.au/st....

23                 The 2016 APS employee census is a significant input to
the 2016 State of the Service Report that explores how the capability and
capacity of the APS contributes to meeting strategic goals and addressing
the Government’s priorities.

24                 The outcomes of the APS employee census serve as a
management tool that enable APS managers to put in place appropriate
measures to enable their respective agencies to respond well to current
challenges, including reducing red tape, improving efficiency, and
engaging with innovation and digital transformation and developing an
inclusive and diverse workforce by improving their agency’s gender
equality practices, Indigenous employment participation rates, and
employment of people with disability.

25                 The APS employee census is conducted on a confidential
basis by the participating agencies and APS staff that respond to the
survey.

Paragraph 47E(c) findings

26                 I found also that publication of each of the Requested
Documents would discourage the AEC from participating in APS employee
census because such publication would inhibit candid discussion of the
outcome of the APS employee census with relevant AEC managers with a view
to developing appropriate human resources policies and practices,
recruitment processes, disciplinary processes and measures directed to
preventing and remediating harassment and promoting work health and safety
about the matters disclosed by the Requested Documents.

27                 I further found that the inhibition identified in
paragraph 27 would have a substantial adverse effect on the management or
assessment of personnel by the AEC by depriving it of an opportunity to
achieve a better response to the matters narrated in item 4.10 that fall
within each such manager’s responsibilities.

Paragraph 47E(d) findings

28                 I found that publication of each of the Relevant
Documents would discourage participating APS employees from providing
candid responses on the matters surveyed.

29                 I further found that this would have a substantial
adverse effect on the proper and efficient conduct of the operations of
the AEC by depriving the AEC of the candid feedback necessary to drive
change in the management and assessment of personnel.

Public interest conditional exemptions—personal privacy

30                 The personal information about an individual contained
in each of the Relevant documents relates to the aggregation of responses
by APS Staff in the relevant part of the AEC headed by that the relevant
individual as a Senior Executive being opinions about various aspects of
leadership collected in the APS employee census.

31                 The information was collected in confidence and the
relevant individual has a reasonable expectation that the opinions about
her or him expressed by the staff that they manage will remain
confidential.

Subsection 47F(1) findings

32                 I found that the response rate in respect of the
Relevant Documents indicated that the aggregate views did not reflect the
views of a significant proportion of the relevant AEC staff who did not
respond.

33                 I found that there was insufficient information in each
of the Relevant Documents to form a reliable assessment of the leadership
of the relevant individual in respect of the matters canvassed in the APS
employee census in respect of the relevant part of the AEC.

34                 I concluded that it would be unreasonable to give
access to each of the Relevant Documents.

Public interest conditional exemptions—business

35                 The information about the professional affairs of an
individual contained in each of the Relevant Documents relates to the
aggregation of responses by APS Staff in the relevant part of the AEC
headed by that the relevant individual as a Senior Executive being
opinions about various aspects of leadership collected in the APS employee
census.

36                 The information contained in each of the Relevant
Documents was collected in confidence and the relevant individual has a
reasonable expectation that the opinions about her or him expressed by the
staff that they manage will remain confidential.

37                 The information contained in each of the Relevant
Documents was collected in confidence and the relevant individuals
responding to the APS employee census have a reasonable expectation that
the opinions each expressed will remain confidential.

Paragraph 47G(1)(a) findings

38                 I found that the management by a senior executive of a
part of the AEC is a professional activity.

39                 I also found the response rate in respect of each of
the Relevant Documents indicated that the aggregate views did not reflect
the views of a significant proportion of the relevant AEC staff who did
not respond.

40                 I further found that there was insufficient information
in each of the Relevant Documents to form a reliable assessment of the
management skills of the relevant individual in respect of the matters
canvassed in the APS employee census in respect of the relevant part of
the AEC.

41                 I concluded that giving access to each of the Relevant
Documents would, or could reasonably be expected to, unreasonably affect
that person adversely in respect of his or her lawful business or
professional affairs in as much as it was not a reliable foundation for
any assessment of the persons proficiency in conducting their professional
activities.

Paragraph 47G(1)(b) findings

42                 I found that the information contained in each of the
Relevant Documents was collected in confidence.

43                 I further found that the relevant individuals
responding to the APS employee census have a reasonable expectation that
the opinions each expressed will remain confidential.

44                 I concluded that giving access to the Relevant
Documents could reasonably be expected to prejudice the future supply of
information to the APSC.

Subsection 11A findings

45                 I found that each of the Relevant Documents is
conditionally exempt for the purposes of subsection 11A of the FOI Act as
a consequence of my findings for the purposes of paragraphs 47E(c) and (d)
and subsection 47F(1) and paragraphs 47G(1)(a) and (b) of the FOI Act.

46                 I further found that the public interest in giving
access to each of the Relevant Documents had less weight than the public
interest against giving that access for the reasons that follow.

47                 In having regard to:

(a)        the factors favouring access to each of the Relevant Documents
specified in subsection 11B(3) of the FOI Act, I:

(i)          considered that the promotion of the objects of the Act had
to be balanced against the public interest in ensuring that the AEC
received candid feedback from its staff and provided that feedback to its
senior managers on a confidential basis so that they could initiate
measures to address issues identified in that feedback;

(ii)         considered that informing debate on a matter of public
importance in relation to the subject matter of each of the Relevant
Documents was served by the Public Service Commissioner publishing the
State of the Service Report;

(iii)       considered that promoting the effective oversight of public
expenditure was not a consideration that was engaged by to the subject
matter of each of the Relevant Documents; and

(iv)       considered that to the subject matter of each of the Relevant
Documents did not involve the applicant accessing her own personal
information;

(a)        the FOI Guidelines, specifically paragraphs 1.13 1.14, 6.1-
6.31 and

and having excluded from my consideration the irrelevant factors specified
in subsection 11B(4) of the FOI Act, I found that the factors favouring
giving access to each of the Relevant Documents had less weight than:

(b)        the detriments to on the management or assessment of personnel
by the AEC identified in paragraphs 27 to 28 above; and, in the
alternative

(c)        the detriments to on the management or assessment of personnel
by the AEC identified in paragraphs 29 to 30 above; and, in the
alternative

(d)        the unreasonableness of giving access to the personal
information of the relevant individuals identified in paragraph 31; and in
the alternative

(e)        the adverse effect on the professional affairs of the relevant
individuals identified in paragraph 36; and, in the alternative

(f)         the prejudice to the future supply of information to the APSC
identified in paragraph 44,

and thus I concluded that it would be contrary to the public interest to
give access to the Requested Documents.

Section 22 findings

48                 As a consequence of my conclusion in paragraph 48 it
followed that it was appropriate to treat each of the Requested Documents
as an exempt document for the purposes of paragraph 22(1)(a)(i) of the FOI
Act to which access is refused.

49                 I then considered whether it is possible to prepare an
edited copy of each of the Requested Documents appropriately modified by
deletions that ensured that access to the edited copy would be required to
be given under section 11A of the FOI Act.

50                 My consideration of the matter in paragraph 50 took
into account:

(a)        the content of each of the Requested Documents; and

(b)        paragraphs 3.85 – 3.90 of the FOI Guidelines.

51                 I found that extensive editing is required of each of
the Requested Documents that would leave only a skeleton of the former
document that would convey little of its substance.

52                 Accordingly, I concluded that it was inappropriate to
offer access to an edited copy of each of the Requested Documents in lieu
of access to each of the Requested Documents and that my decision to
refuse access to each of the Requested Documents should stand.

Your review rights

53                 If you are dissatisfied with my decision, you may apply
for internal review or Information Commissioner review of the decision. We
encourage you to seek internal review as a first step as it may provide a
more rapid resolution of your concerns.

Internal review

54                 Under section 54 of the FOI Act, you may apply in
writing to the AEC for an internal review of my decision. The internal
review application must be made within 30 days of the date of this email.

55                 Where possible please attach reasons why you believe
review of the decision is necessary. The internal review will be carried
out by another officer within 30 days.

Information Commissioner review

56                 Under section 54L of the FOI Act, you may apply to the
Australian Information Commissioner to review my decision. An application
for review by the Information Commissioner must be made in writing within
60 days of the date of this email, and be lodged in one of the following
ways:

online:                              
[6]https://forms.business.gov.au/aba/oaic/f...

email:                     [7][email address]

post:                      GPO Box 52189, Sydney NSW 2001

in person:               Level 3, 175 Pitt Street, Sydney NSW

57                 More information about Information Commissioner review
is available on the Office of the Australian Information Commissioner
website. Go to [8]www.oaic.gov.au/freedom-of-information/foi-reviews.

Questions about this decision

58                 If you wish to discuss this decision, please contact me
at:

email:                     [9][email address]

fax:                        02 6293 7657

post:                      Locked bag 4007, Canberra ACT 2601

Regards

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

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[10]Australian Electoral Commission logo [11]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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From: Owen Jones
Sent: Wednesday, June 21, 2017 11:05 AM
To: [12][FOI #3649 email]
Cc: INFO <[13][AEC request email]>; Legal Services - NO
<[14][email address]>
Subject: RE: Freedom of Information request - AEC results from 2016 APS
Staff Census [SEC=UNCLASSIFIED]

 

Sarah McAndrew
Right to Know Organisation

Dear Ms McAndrew

I refer to your email dated 21 June 2017 8:35 AM in which you request
(‘your FOI Request’) to the Australian Electoral Commission (‘AEC’) under
the [15]Freedom of Information Act 1982 for access to documents relating
to 2016 APS Staff Census Survey.

I have taken your request to be for:

the reports provided by the APSC to AEC with the results, both
departmentally and by branch of the 2016 APS Staff Census Survey

We received your request on 21 June 2017 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 21 July 2017. The period of
30 days may be extended if we need to consult third parties, impose a
charge or for other reasons. We will advise you if this happens.

You will be notified of any charges in relation to your request as soon as
possible, before we process any requested documents or impose a final
charge.

Please note that information released under the FOI Act may later be
published online on the AEC’s disclosure log [16]at
http://www.aec.gov.au/information-access..., subject to certain
exceptions. (For example, personal information will not be published where
this would be unreasonable.)

We will contact you using the email address that you provided. Please
advise if you would prefer us to use an alternative means of contact. If
you have any questions, please contact me at:

email:                             [17][email address]

fax:                                02 6293 7657

post:                              Locked bag 4007, Canberra ACT 2601

telephone:                      02 6271 4528

Yours sincerely

Owen Jones

Owen Jones | Senior Lawyer

Legal Services Section | Legal and Procurement Branch

Australian Electoral Commission

T: (02) 6271 4528 | F: (02) 6293 7657

--------------------------------------------------------------------------

[18]Australian Electoral Commission logo [19]Australian Electoral
Commission

This email may contain legal advice that is subject to legal professional
privilege. Care should be taken to avoid unintended waiver of that
privilege. The Australian Electoral Commission’s Chief Legal Officer
should be consulted prior to any decision to disclose the existence or
content of any advice contained in this email to a third party.

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