Group Certificates/PAYG payment summaries of the ATO’s SES staff - FY2013/14, FY2014/15 and FY2015/16

Name withheld made this Freedom of Information request to Australian Taxation Office

The request was refused by Australian Taxation Office.

From: Name withheld

Delivered

Dear Australian Taxation Office,

I note recent advice given by the Australian Information Commissioner to the Australian Taxation Office ‘s (ATO’s) General Counsel. That advice is available here: https://archive.org/details/OAICDecision....

The effect of that advice is that the ATO’s policy of refusing to process valid applications made under the Freedom of Information Act 1982 (the FOI Act) and lodged by way of the righttoknow.org.au website runs contrary to the requirements of the FOI Act.

That being the case, the following is an application the purposes of the FOI Act. Any failure on the part of the ATO to process the following request in accordance with the requirements of the FOI Act will be met with a complaint being made to the Commissioner of Taxation by reference to the Public Service Act 1999 and the Public Interest Disclosure Act 2013.

I am conducting research, across a range of Government agencies, into the Government's enterprise bargaining framework for the Commonwealth Public Service. Specifically, in the interests of equity and transparency, whether the Government's policy to reduce the living standards of rank and file public servants (that is, public servants who are not considered senior executive service staff ('SES')) also extends to SES public servants.

Accordingly, I request documents which detail the precise monies paid to each of the ATO’s SES officers in the following financial years - FY2013/14, FY 2014/15 and FY2015/16. The group certificates/end-of-year PAYG payments summaries issued by the ATO to each of its SES staff in those years can be quickly and easily identified and retrieved, and will efficiently and accurately provide the information the subject of my request.

I am willing to agree to the decision maker redacting information relating to the tax file numbers, the home addresses and information relating to the amount of tax withheld for each of the relevant SES officers that may be contained in the relevant documents. I am willing to further narrow the scope of my request by limiting it to officers employed by the ATO who, at the time of my application, were categorised as SES officers, meaning that:
- ATO staff who were once SES officers at the ATO, but weren’t categorised as such at the time of this application; and
- the documents the subject of my request that pertain to SES officers who are no longer employed by the ATO;
are discounted from the scope of my application.

I make the following submissions in support of my application.

The precise remuneration paid to public servants for performing public duties is a matter of wide and countervailing public interest. That is established by authority including that set out in Re Ricketson and Royal Women’s Hospital (1989) 4 VAR 10; Re Forbes and Department of Premier & Cabinet (1993) 6 VAR 53; Re Stewart and Department of Transport (1993) 1 QAR 227; Re Thwaites and Metropolitan Ambulance Service (unreported, 13 June 1997); Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105; Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 and Asher and Department of State and Regional Development [2002] VCAT 609.

In Re Forbes, Deputy President Ball said (at page 60):
"Mr Baxter is a senior public servant performing very significant public functions and being paid wholly from money provided by the public. The public is entitled to know precisely how much of its money is received in salary and entitlements by senior public servants for performing functions on behalf of the public."

In Re Stewart, at pp.257-258, the Information Commissioner observed:
"It has been held […] that there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office. […] see [Re Ricketson and Royal Women's Hospital (1989) 4 VAR 10, and Re Forbes and Department of the Premier and Cabinet (1993) 6 VAR 53]."

In Re National Tertiary Education Industry Union, the Commissioner observed (at [68]):
"I recognise that there is a public interest in the public receiving value for its money spent on public education, especially in the present climate of financial restrictions. I agree with the Tribunal in Re Ricketson and Re Forbes that the public is entitled to know how much of its money is received in salary and entitlements by senior public officers for performing functions on behalf of the public and that such information is the subject of legitimate public interest and discussion."

In Asher, Deputy President McNamara stated:
"The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in this matter, even although it is one that it is clearly a matter relative to the personal affairs to the officers themselves. As Mr Edwards notes, his actions as Secretary must ultimately be regulated by the law which must take precedence over any government policy, or one might say any private assurance that he might give to a particular officer. The existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation."

An additional wide public interest aspect that relates to my application is that employment relations (including the regulation of pay and conditions) in the public sector are widely considered to serve as a role model for industrial relations in the private sector (see, for example, Creighton B and Forsyth R [Eds.] Rediscovering Collective Bargaining, 2012 at pp.184-185). That is, the way in which a government treats its staff (public servants) can be considered emblematic of the way in which a government considers employees across the broader workforce should be treated by their employers. The current Commonwealth Government has an employment relations policy in place (known as the ‘Australian Public Service Bargaining Framework’) which necessarily involves reducing the living standards of rank and file (non-SES) public servants. Senior management at the ATO has decided, at its discretion, to adopt and enforce, against its rank and file staff, the Government’s employment relations policy. Part of the purpose of my application is to determine whether the Government’s policy to reduce the living standards of rank and file public servants also extends to SES public servants. The documents the subject of my request will shed some light on that issue. It is immutably in the public interest of APS rank and file employees and their families, but also Australian taxpayers and working Australians more generally, to know whether it is the current Government’s view that rank and file employees who are not categorised as senior executives (or equivalent) are generally overpaid, and should therefore have their living standards reduced by their employers, while senior executives (or their equivalents) are generally underpaid and should have their living standards increased. Such an insight will augment the public’s knowledge of the Government’s existing policies concerning the distribution of wealth among Australian society including the Government’s policy to reduce the level of penalty rates paid to some of the lowest paid members of the Australian workforce while simultaneously reducing company taxation rates.

Thank you.

[name not required to be provided under the FOI Act]

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From: FOI
Australian Taxation Office


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Dear FOI Applicant,
 
Please see the attachment.
 
 
 
Yours faithfully,
 
FOI Team
 
 
 

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From: FOI
Australian Taxation Office


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Dear FOI Applicant,
 
Please see attachment.
 
 
 
Yours faithfully,
 
FOI Team
 
 
 
 

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Verity Pane left an annotation ()

For the benefit of those who don't want to wade through three screens to see the decision (shame on ATO for being deliberately obstructive to RtK), have reproduced below:

Decision
I have considered your request and have decided to refuse access to the information you have requested.

In reaching my decision I referred to the following:  the terms of your request;
 contents of the documents requested;
 the FOI Act
 FOI guidelines issued by the Australian Information Commissioner; and  publicly available information about SES salaries.

Reasons for Decision

General Information
The Remuneration Tribunal sets remuneration and conditions for the Commissioner, while the Commissioner determines the remuneration for Second Commissioners within a framework set by the Tribunal. The Commissioner determines conditions for SES based on advice from the ATO Remuneration Committee. Remuneration for these senior executives is aligned with the annual remuneration survey conducted by the Australian Public Service Commission.
Publicly available information about SES salaries can be located in the ATO Annual report at
https://annualreport.ato.gov.au/03-manag... management/remuneration/senior-executive-remuneration and the APS Remuneration report located on line at http://www.apsc.gov.au/publications-and-... publications/remuneration-surveys/aps-remuneration-report-2015

Section 47E – Certain Operations of Agencies
Subsection 47E(c) of the FOI Act provides that a document is conditionally exempt if its disclosure would, or could reasonably be expected to have a substantial effect on the management or assessment of personnel by an agency.

I am satisfied that disclosing the specific remuneration paid to each individual SES employee would have a substantial and adverse effect in negotiating the remuneration process. This would have a significant effect on the ATO’s position in managing and assessing personnel during this process.

As this is a conditional exemption, I also need to consider the public interest factors outlined in section 11B of the FOI Act to consider whether disclosure would, on balance, be contrary to the public interest. Factors favouring access in this case are:
 providing access to information held by a Commonwealth agency, which is a national resource managed for public purposes; and
 promoting the objects of the FOI Act, including increasing scrutiny and review of Government activities.

However, these factors are outweighed by the following factors:
 release of the information puts the negotiation of the SES remuneration process at risk; and
 release of the information may serve to undermine the bargaining position of the ATO which could result in increased expenditure at the expense of the ATO’s other functions.

I have given less weight to the factors in favour of release in view of the publicly available information on this topic. I am satisfied that on balance, disclosure of the requested documents would be contrary to the public interest.

Section 47F - Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person.

‘Personal information’ is defined in section 4 of the FOI Act to mean information or an opinion, whether true or not and whether recorded in material form or not, about an individual who has been identified or is reasonably identifiable from the information or opinion.

I am satisfied that the relevant documents contain information about individuals whose identity is apparent. Further, I am satisfied that the information is personal information as it conveys information beyond merely identifying the individuals.

I have considered the following matters set out in subsection 47F(2) of the FOI Act to which I must have regard when considering whether disclosure of personal information would be unreasonable:
 the extent to which the information is well known;
 whether the person to whom the information relates is known to be, or to have been, associated with matters dealt with in the document;
 the availability of the information from publicly accessible sources; and
 any other matters that the agency or Minister considers relevant

Upon consideration of these matters I am satisfied that the disclosure of personal information would be unreasonable.

As section 47F is a conditional exemption, I also need to consider the public interest factors outlined in section 11B of the FOI Act to consider whether disclosure of personal information would, on balance, be contrary to the public interest. Factors favouring access in this case are:
 providing access to information held by a Commonwealth agency, which is a national resource managed for public purposes;
 promoting the objects of the FOI Act, including facilitating public access to information generally; and
 promoting openness and general transparency.

However, these factors are outweighed by the following factors:
 the individuals’ right to privacy; and
 harming the interests of the individuals named in the documents by releasing their
personal details.

I have given less weight to the factors in favour of release in view of the publicly available information on this topic. In weighing up these factors I am satisfied that on balance, disclosure of personal information in the relevant documents would be contrary to the public interest.

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