OFFICIAL: Sensitive
FOI-2023-10088
7 June 2024
Sarveshcika Yuvaraj FOI Branch
Office of the Australian Information Commissioner
Dear Sarveshcika,
MR23/01358 - Submissions
Thank you for the opportunity to provide information in this matter. I have enclosed the
material requested in [10.100] of the Information Commissioner’s Guidelines. Our view is
that the information requested by the applicant in this matter was appropriately
refused.
We rely on the reasons for decision provided to the complainant in the initial
decision, and subsequent internal review. We would also like to add a few short
submissions in on the application of the s 47E(d)
Freedom of Information Act 1982. (
FOI
Act) exemption and in response to two issues raised by the applicant.
Application of Section 47E(d)
1. The six relevant documents are correspondence in relation to the investigation of
a Public Interest Disclosure (
PID) under the
Public Interest Disclosure Act 2013.
Our view is that it is conditionally exempt pursuant to s 47E(d) of the FOI Act.
2. The Guidelines state at [6.122] in relation to s 47E(d):
"The exemption may also apply to documents that relate to a complaint
made to an investigative body. The disclosure of this type of information
could reasonably affect the wil ingness of people to make complaints to
the investigative body, which would have a substantial adverse effect on
the proper and efficient conduct of the investigative body’s operations."
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OFFICIAL: Sensitive
3. Members of the public approaching the Ombudsman have an expectation that
their complaints wil be held in confidence and investigated in private. These
expectations are set by the
Ombudsman Act 1976 (Ombudsman Act). Which
requires that investigations should be conducted in private, and that information
gathered in the course of our investigations be held in confidence.
4. The Information Commissioner has recognised in several published decisions
that the disclosure of information obtained during our investigations could
adversely affect the proper conduct of the operations of the Ombudsman. See
for example:
Australian Broadcasting Corporation and Commonwealth
Ombudsman [2012] AICmr 11 at [28]; and
Australian Skeptics Inc and
Commonwealth Ombudsman [2021] AICmr 61. These decisions recognise that
there would be a substantial adverse effect on the wil ingness of the public to
approach our Office with complaints, if there is concern investigations may be
disclosed through FOI.
5. This concern is even stronger considering this complaint concerned the handling
of a disclosure under the PID scheme. The protection of those who make
disclosures is central to that scheme. The importance of protecting information
col ected during a PID investigation has been recognised by the Information
Commissioner in
‘YU’ and Bureau of Meteorology [2021] AICmr 75 at [31]:
"The PID Act provides public officials who make a disclosure under that
Act with legislative protection from reprisals. I agree with BOM’s
submission that certain operations of the agency may be undermined if
the confidentiality established under the PID Act was circumvented by a
request for information under the FOI Act. I am also satisfied disclosure
may result in employees losing confidence in BOM’s ability to maintain
confidentiality during a PID or other investigation into allegations of
misconduct, which may have a substantial adverse effect on the Bureau's
ability to manage its staff."
6. In the current case, the Office was exercising powers under the Ombudsman Act,
not the PID Act. However, the information sought by the applicant is related to a
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disclosure under the PID scheme, and the same adverse effects would flow from
disclosure.
7. The release of any information concerning a PID reduces the likelihood that
public officials wil use the PID scheme in the future. Significant public detriment
would result if our ability to obtain confidential information in future PID or
Ombudsman Act investigations is compromised.
Response to applicant’s submissions
8. We acknowledge the applicant’s submission that there is publicly available
information about related events. However, we submit that the publicly
available information is general in nature, and that a release of specific
documents from the investigation would include a large amount of detail that is
not in the public record. This is relevant to both conditional exemptions claimed
by the Office.
9. In our view the source of the information is also relevant: the release of
information by the Office itself would cause a more serious loss of public faith in
the integrity of the PID scheme, in a way that similar information circulated from
other sources would not.
10. The applicant has also submitted that s47E(d) is not applicable to documents
that ‘reveal inefficiencies’. Paragraph [6.115] of the Guidelines states that s47E(d)
can only be used to protect the proper and efficient operations of an agency.
That is, the provision cannot be used to support an argument that disclosing
some maladministration would cause an ‘adverse effect’ to an agency.
11. Respectfully, the concerns raised by our Office are not inconsistent with this part
of the Guidelines. The substantial adverse effect which caused us to apply the
s47E(d) conditional exemption is that the PID scheme cannot operate as
intended unless disclosers have confidence that information shared with us wil
be held in strict confidence. This position does not seek to protect inefficiency or
maladministration, and so [6.115] has no application. For the avoidance of any
doubt, we also do not agree that the documents within scope show any lack of
procedural fairness or other inefficiency.
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OFFICIAL: Sensitive
We hope these submissions assist you. Please don’t hesitate to contact me if you have
any other questions.
Kind regards,
Matt Jackson
a/g Director - Legal
Office of the Commonwealth Ombudsman
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