Documents relating to the selection of Emma Rees as the Chief of Staff at the APSC

The request was partially successful.

Dear Australian Public Service Commission,

I refer to an FOI decision that Charmaine Sims of the Australian Public Service Commission made on 1 July 2022. The decision is capable of access here:

https://www.righttoknow.org.au/request/p...

In the record of her FOI decision, Ms Sims stated that:

a) a position description document; and

b) a classification evaluation document,

do not exist / could not be located for the Chief of Staff position that Emma Rees of the Australian Public Service Commission currently occupies. Ms Sims added that the "Chief of Staff was transferred to the Commission from another agency." That may be the case, but it is no reason as to why a position description for the Chief of Staff role, or a classification evaluation for that role, could not be produced. It is somewhat disturbing that the documents have not been produced. Somebody must have decided that there was a need for a Chief of Staff at the APSC. Somebody must have determined the scope of the Chief of Staff's duties by reference to objective standards. Somebody must have allocated a classification to the groups of duties to be performed under section 9 of the Public Service Classification Rules 2000. It cannot be the case that Ms Rees was just handed a job without there being some objective assessment of what she was to in that role.

I assume that the "transfer" that Ms Sims is referring to is a transfer under either sections 26 or 27 of the Public Service Act 1999.

Section 26 of the Public Service Act provides:

(1) An Agency Head may enter into an agreement in writing with an APS employee for the employee to move to the Agency Head’s Agency from another Agency.
(2) Subject to Commissioner’s Directions issued under subsection 11A(1), the agreement has effect according to its terms, by force of this section.

Section 27 of the Public Service Act provides:

(1) The Commissioner may, by direction in writing, move an excess APS employee to another Agency, without anyone’s consent.
(2) For the purposes of this section, an APS employee is an excess APS employee if, and only if, the Agency Head has notified the Commissioner in writing that the employee is excess to the requirements of the Agency.

Under the FOI Act, I request:

a) assuming that Ms Rees' transfer to the Australian Public Service Commission was effected under section 26 of the Public Service Act, the written agreement entered into by Ms Rees and the Australian Public Service Commissioner (or his delegate) to transfer Ms Rees to the Australian Public Service Commission;
b) assuming that Ms Rees' transfer to the APSC was effected under section 27 of the Public Service Act, the written direction issued by the Australian Public Service Commissioner effecting that transfer;
c) the position description for the Chief of Staff role that Emma Rees has come to fill;
d) any and all classification evaluation documentation for the Chief of Staff role that Emma Rees has come to fill;
e) the record of the analysis leading to the task and job design of the Chief of Staff role that Emma Rees has come to fill;
f) the record of the supporting reasons for the classification decision, including reference to the comparisons made with formal standards (e.g. the Australian Public Service Commissioner's work level standards) for the Chief of Staff role that Emma Rees has come to fill;
g) the assessment of the resource impact of the creation or reclassification of the Chief of Staff role that Emma Rees has come to fill;
h) the evidence that there was a need for the Chief of Staff role in the Australian Public Service Commission that Emma Rees has come to fill;
i) any job application Emma Rees submitted for the Chief of Staff role that she has come to fill;
j) any and all documents that show, or tend to show, the Australian Public Service Commissioner's role in authorising the creation of the Chief of Staff role that Emma Rees has come to fill;
k) any and all documents that show, or tend to show, the Australian Public Service Commissioner's role in selecting Emma Rees for the Chief of Staff role that she has come to fill;
l) any and all documents that show, or tend to show, that Emma Rees was selected on her merits to fill the Chief of Staff role in the APSC; and
m) any and all documents that show, or tend to show, that members of the Australian community were given a fair chance to apply to be selected on their merits for the Chief of Staff role that Emma Rees has come to fill.

Please respond to each paragraph discretely.

You may provide the document to me by return email.

Yours faithfully,

Ray B1

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

I am writing to acknowledge receipt of your request under the Freedom of
Information Act 1982 for access to documents held by the Commission.

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

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FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant

 

A decision notice is attached.

 

Kind regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

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This email and any attachments may contain confidential or legally
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Dear Ms Strangio,

Thank you for your decision letter.

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review, on each ground of your decision, of Australian Public Service Commission's handling of my FOI request 'Documents relating to the selection of Emma Rees as the Chief of Staff at the APSC'.

In your FOI decision, you state that Document 1 and Document 2 “correspond with Parts A and B of [my FOI] request.” It is not entirely clear if you are stating that Document 1 and Document 2 apply to both Parts A and B, or if one of each document applies to on of each of Part A and B of my request.

In any case, sections 26 and 27 of the Public Service Act are mutually exclusive. One or the other applies. Both cannot apply at the same time in respect of the same APS employee. Therefore, as a matter of logic, your response in respect of Document 1 and Document 2 and their correspondence with both paragraphs (a) and (b) of the FOI request cannot be correct. I request that the internal reviewer reconsider that claim.

I also challenge your s 47F claim.

You claim that disclosure of the document would identify the person’s name. That is a silly thing to say given that I have identified the person as Emma Rees in my FOI request, and you have acknowledged that those documents are transfer documents relating to Emma Rees.

You claim that disclosure of the document would prejudice Ms Rees’ right to privacy. There is no general right to privacy in Australia, and thus there is no general right to privacy. You must identify the relevant right (usually a right to privacy in respect of something or some attribute) in a statutory source. You have done nothing of the sort.

You claim that the disclosure of the document would not advance of any decisions falling within the scope of the FOI request. Au contraire. The disclosure of the document would identify how it is that Ms Rees was transferred into the APSC when there is, by your own admission, no record of the existence of any documents:

a) that show, or tend to show, that members of the Australian community were given a fair chance to apply to be selected on their merits for the Chief of Staff role that Emma Rees has come to fill;

b) that show, or tend to show, that Emma Rees was selected on her
merits to fill the Chief of Staff role in the APSC; or

c) the evidence that there was a need for the Chief of Staff role in the Australian Public Service Commission that Emma Rees has come to fill.

The document in (c) must exist in order to prove that there was actually a vacancy. If there was no vacancy to fill, then Ms Rees’ transfer would have been superfluous. Worse, it would be gratuitous. That would tend to lead to the conclusion that the transfer was for reasons other than need and not on the basis of merit. That, in turn, could give rise to a need for review – whether by way of a PID or a Code of Conduct complaint or a tip-off to participating members of the Senate Finance and Public Administration Committee.

So clearly, that claim is baseless.

You claim that “the release of some of the individuals’ personal information may cause stress for them or other detriment”. But what about the detriment to the Australian community? What about the fact that members of the Australian community were not given a fair chance to apply for a role in the public service on their merits? What about the fact that the best person for the job may not have been selected? What about the fact that public money is underwriting a transfer that cannot be justified (at the SES Band 1 level to boot)?

You claim that “no public purpose or interest in increasing transparency of government would be achieved through the release of the information”. For the reasons set out above, that is plainly false.

You claim not to have taken those factors set out in s 11B(4) into account but in reality you have.

You are worried that the disclosure of the documents may embarrass the Commonwealth (the APSC is the Commonwealth – it does not have a corporate legal identity independent of the Commonwealth).

Aside from the fact that your reasons in support of the s 47F conditional exemption do not hold, your public interest assessment also fails.

In respect of paragraph (c) to (m) of my FOI request, please make an effort to find those documents. Without them, the reason to release the documents associated with paragraphs (a) and (b) becomes overwhelming.

As you know, there must be a classification evaluation for the SES Band 1 role that Emma Rees has filled. Someone must have determined that the role would be classified at the SES Band 1 level. Please don’t give me any garbage about the role being an established one and that, accordingly, no review was conducted for a fresh classification. That doesn’t address the terms of my FOI request. Fresh or otherwise, there must a record of the classification evaluation. The APS Classification Guide requires it. Part 4 of the guide provides:

Thorough information and documentation procedures relating to classification decisions are necessary elements in safeguarding the integrity of the process. A decision to allocate a new or revised classification level to a job is made under delegated authority under the Public Service Act 1999 and the Public Service Classification Rules 2000. This means a record of the decision must be made, including the reasons for the decision.

There must also be documents recording the task and job design of the Chief of Staff role. How else would she know what to do? How would others in the organisation know what her role was? How could an assessment of her role relative to the work level standards have been conducted?

I need not set out reasons for each paragraph. It is enough to state that records of those documents must, as a matter of policy and law, exist. Without them, it looks like someone in the APSC was doing Ms Rees a favour. The best way to assuage the concerns of the public is to provide the documents that ultimate guarantee the integrity of the public service classification system (i.e. the documents that I requested, which, according to the APS Classification Guide issued by the Australian Public Service Commission, every Commonwealth agency must maintain in respect of roles and vacancies).

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...

Yours faithfully,

Ray B1

FOI, Australian Public Service Commission

OFFICIAL
Dear Applicant

The Australian Public Service Commission (APSC) is writing to acknowledge receipt of your request for internal review under the Freedom of Information Act 1982 (FOI Act).

The timeframe for responding to your internal review request is 30 days from the date of receipt. This timeframe for internal review may be extended in very limited circumstances. You will be notified if these circumstances arise and the timeframe is extended.

Regards,

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3500 w: www.apsc.gov.au

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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FOI, Australian Public Service Commission

3 Attachments

OFFICIAL
See attached.

Regards

FOI OFFICER
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3720 w: www.apsc.gov.au

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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Ray B1 left an annotation ()

Reasons for IC review

I seek IC review of the internal review decision in respect of the following paragraphs of my FOI request.

Paragraph a

The internal review decision maker, Ms Sita Jackson, has provided a heavily redacted document in response to paragraph a of my FOI request. The document is a redacted transfer document. The document has been redacted on the basis that a conditional exemption applies and that it is not in the public interest to grant access to the exempted parts of the document. The conditional exemption claimed in under s 47F of the FOI Act.

I am not convinced that the all the claims are correct.

Emma Rees’ APS employee number has been redacted. That APS employee number is publicly available in the Public Service Gazette – see, for example, PS No 15 of 2017. On page 280 of 298 of the weekly gazette, there is a promotion notice with the promotion reference NN 10704376. That is a promotion notice relating to Emma Rees. Emma Rees was promoted from an Executive Level 1 position to an Executive Level 2 position. The Executive Level 2 position was for the a Digital Manager vacancy in the Department of Prime Minister and Cabinet. Importantly, Emma Rees’ APS number is recorded on the promotion notice. It is 799-46412.

As part of applying the s 47F exemption to the redacted APS number, Ms Jackson should have taken into account:

a) the extent to which the information is well known;
b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; or
c) the availability of the information from publicly accessible sources.

It is hard to justify redacting the APS employee number given that the information is publicly available for anybody to access and is associated with Ms Emma Rees. I do not think that the exemption can be claimed for the APS employee number.

Nor do I think that the classification can be redacted. The last promotion notice that appears to have been published in the Public Service Gazette for Ms Rees is the one identified earlier (i.e. PS No 15 of 2017). If Ms Rees was transferred pursuant to s 26, one would expect that she was transferred (to use the language employed by APSC staff, “at level”) into a role that bore an EL2 classification. If that is not the case, then there might be a problem. For example, if Ms Rees was transferred into an SES Band position, then she would have been promoted according to the terms of the Australian Public Service Commissioner’s Directions 2016. A promotion notice would have ordinarily been published. Moreover, there should have been a merit based selection process for the SES vacancy. In any case, there really is no public interest ground to be pressed for denying access to the classification that the “Chief of Staff” role bears in the APSC.

Nor do I think that the position number for the Chief of Staff role can be redacted on public interest grounds. The position number would ordinarily be publicly accessible. There is no reason why that information should be redacted.

Nor do I think that the “Moving from” details should be redacted. It is plain on the face of the transfer document that the “Home Agency” from which Ms Rees was transferred was the Department of Prime Minister and Cabinet. If that information has been redacted, then no justification can provided in support of the redaction given what is known.

Why Ms Rees’ “APS level” has been redacted is not clear. The “APS level”, which I take to mean the classificaiton allocated to Ms Rees pursuant to rule 6 of the Public Service Classification Rules 2000, would match the classification of the Chief of Staff role. Given that the classification for the role should be public, there is no point in redacting the APS level information.

The Team and Group information should also not be redacted given that the information may be gleaned and inferred from the APSC’s own information (see, for example, www.apsc.gov.au/about-us/working-commiss....

Nor should the location information be redacted. Ms Rees has disclosed, on her various social profiles, that she works as the Chief of Staff in Canberra.

Nor should the commencement date be redacted.

For these reasons, the redaction identified should not be permitted to remain on the transfer document.

Paragraph d

I do not accept that no classification evaluation document exists for the Chief of Staff role. Raphael has helpfully identified why such a document must exist in his comments on this website: https://www.righttoknow.org.au/request/p.... Given that the reasons for the existence of such a document are to be found in guidelines issued by the Australian Public Service Commission (issued on the basis of maintaining the integrity of the classification system in the Australian Public Service), it seems to me that the APSC should have the classification evaluation document and, if it does not, explain in its submission to the OAIC why it does not have that document.

Paragraph e

I do not accept that a task and job design document does not exist for the Chief of Staff role. Raphael has helpfully identified why such a document must exist in his comments on this website: https://www.righttoknow.org.au/request/p.... Given that the reasons for the existence of such a document are to be found in guidelines issued by the Australian Public Service Commission, it seems to me that the APSC should have the relevant document and, if it does not, explain in its submission to the OAIC why it does not have that document.

Paragraph f

I do not accept that a document setting out the reasons in support of the classification decision does not exist for the Chief of Staff role. Raphael has helpfully identified why such a document must exist in his comments on this website: https://www.righttoknow.org.au/request/p.... Given that the reasons for the existence of such a document are to be found in guidelines issued by the Australian Public Service Commission, it seems to me that the APSC should have the relevant document and, if it does not, explain in its submission to the OAIC why it does not have that document.

Paragraph h

I do not accept that documents evidencing the need for the Chief of Staff role do not exist. Raphael has helpfully identified why such a document must exist in his comments on this website: https://www.righttoknow.org.au/request/p.... Given that the reasons for the existence of such documents are to be found in guidelines issued by the Australian Public Service Commission, it seems to me that the APSC should have the relevant documents and, if it does not, explain in its submission to the OAIC why it does not have the documents.

Paragraph j

I find it hard to believe that there are no documents that show, or tend to show, the Australian Public Service Commissioner's role in authorising the creation of the Chief of Staff role, given that the role is for his Chief of Staff. I request that the APSC again searches for such documents and addresses the search according to the terms of the request (i.e. tendency to show).

Paragraph l

I find it hard to believe that there are no documents that show, or tend to show, that Emma Rees was selected for the Chief of Staff role on her merits. There must be something to demonstrate that Ms Rees was a meritorious candidate for the role. Merit is the primary criterion for selection into a vacancy. I request that the APSC again searches for such documents and addresses the search according to the terms of the request (i.e. tendency to show).

Australian Public Service Commission

 
 
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Australian Public Service Commission

1 Attachment

Our reference: MR22/01451

 

By email: [FOI #9089 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/01451.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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