Cynthia T
By Email: <xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
Our Reference: LEX 864 (761)
Dear Applicant
Freedom of Information request
1. The purpose of this correspondence is to advise you of a revised decision the
Australian Public Service Commission (Commission) has made under section 55G of
the
Freedom of Information Act 1982 (FOI Act) in relation to LEX 864.
2. My decision applies in relation to the release of one (1) document in part.
3. The FOI Act and all other Commonwealth legislation referred to in this letter are
publicly available from www.legislation.gov.au.
Revised Decision
4. I have made a decision to vary the internal review decision made by Sam
Montenegro, FOI decision maker, on 29 January 2024.
5. In varying this decision, I have decided to release a single document to you in part.
Authority to make decision
6. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
7. On 19 October 2023, you requested access to the following:
“Under the Freedom of Information Act 1982 (Cth), I request any reports on the
operations of the Australian Public Service Commission given during the 2022-
2023 financial year by the Commonwealth Ombudsman.
8. On 19 November 2023, I as Authorised Decision Maker refused access to any
documents. In providing that decision I noted that no documents falling under the
parameters of “report AND operations” were located.
9. On 16 December 2023, you sought an internal review of the original decision.
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10. On 29 January 2024, you were provided with a decision relating to your internal
review request which affirmed my earlier decision to refuse your request for access to
the documents under section 24A(1) of the FOI Act.
11. On 8 March 2024, the Office of the Australian Information Commissioner (OAIC)
sent the Commission a notice under section 54Z of the FOI Act advising that the
OAIC had commenced a review of the Commission’s internal review decision. In
your application you made reference to an investigation conducted by the Office of
the Commonwealth Ombudsman:
“According to the decision maker, the “document located and within the
scope of your request includes the Office’s findings, comments and
suggestions relating to an investigation, communicated to an agency under s
12(4) of the Ombudsman Act 1976.”
12. I have reviewed this matter and consider I am in a position to grant access in part to
the document communicated to the Commission under section 12(4) of the
Ombudsman Act 1976 and identified at
Attachment A. Accordingly, I have decided
to make a revised decision under section 55G of the FOI Act.
13. The Commission will provide the OAIC with a copy of this revised decision.
Reasons for Decision
14. In making my revised decision on your request, I have had regard to:
the terms of your request;
the primary and internal review decisions;
the terms of your application for IC review through the OAIC;
the further primary and internal review decisions, and application for IC
review through the OAIC for MR24/00880;
the FOI Act; and
the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (FOI Guidelines).
15. The section 12(4) document did not fall within the original scope of your request as
the document is not a report.
16. I have reviewed all of the material available to me, as outlined at paragraph 14 of this
letter, and I have decided to grant access to the document identified in Attachment A
in part.
17. I consider that it would be contrary to the public interest to release the personal
information contained within the document at this time or that disclosure could
reasonably be expected to have a substantial adverse effect on the proper and efficient
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conduct of the operations of the Commission, for the purposes of sections 47F, 47E(d)
and 11A(5) of the FOI Act.
18. Accordingly, I have decided to release the document to you in part.
19. My reasons are at
Attachment B.
Application for Information Commissioner Review – Review Rights
20. The OAIC is currently conducting an IC review of the Commission’s internal review
decision. Under section 55G(2)(b) of the FOI Act, the Information Commissioner (IC)
must deal with your IC review application as if it were an IC review application of
this revised decision.
21. The scope of your IC review emphasised that you are seeking access to the section
12(4) document. This revised decision has provided you with access to part of the
document. I therefore kindly ask you to consider withdrawing your application for IC
review on the basis that your concerns have been addressed.
22. You can contact the OAIC by email at xxxxx@xxxx.xxx.xx or by phone on 1300 363
992 to advise whether you wish to proceed with your application.
Contacts
23. If you require clarification on matters in this letter please contact the Commission’s
FOI Officer by email at xxx@xxxx.xxx.xx.
Yours sincerely,
Melanie McIntyre
Authorised FOI decision maker
12 July 2024
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ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document Pages
Description
Exemptions
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1 - 8
Section 12(4) of the Ombudsman Act letter
Released in part
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ATTACHMENT B
REASONS
Exemptions
1. In finding the document is exempt, I have applied the following exemptions:
a) paragraph 47E(d) – Certain operations of agencies; and
b) section 47F – Personal privacy.
Subsection 47E(d) – Certain operations of agencies – substantial adverse effect on the
proper and efficient conduct of the operations of an agency
2. Paragraph 47E(d) of the FOI Act provides that a document is conditionally exempt
from disclosure if its disclosure would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
3. For this exemption to apply, it is necessary that the predicted effect ‘would, or could
reasonably be expected to’ occur.
4. The term ‘could’ in this instance, as the FOI Guidelines state at 5.17, requires an
analysis of whether there exists a reasonable expectation that an event, effect or
damage could occur. This ‘reasonable expectation’ cannot be a mere risk, possibility
or chance of prejudice. It must be based on reasonable grounds, a real, significant or
material possibility of prejudice, as the FOI Guidelines at 5.18 state.
5. Paragraph 6.122 of FOI Guidelines also state that paragraph 47E(d) also applies to
documents that relate to a complaint made to an investigative body, noting that “the
disclosure of this type of information could reasonably affect the willingness of
people to make complaints to the investigative body, which would have a substantial
adverse effect on the efficient conduct of the investigative body’s operations.”
6. The document found in scope includes material containing findings, comments and
suggestions relating to an investigation by the Ombudsman under subsection 12(4) of
the
Ombudsman Act 1976.
7. The Ombudsman is an investigative agency, involved in administering and enforcing
the
Public Interest Disclosure Act 2013 (PID Act).
8. Pursuant to subsection 8(2) of the Ombudsman Act, Ombudsman investigations are
dealt with in private and the protection of those who make disclosures is central to the
Public Interests Disclosure (PID) Scheme.
9. In my view the release of this document is likely to have a larger effect of inhibiting
or discouraging staff from freely and effectively communicating with investigative
agencies on matters relating to PIDs.
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10. It is my view that public detriment could reasonably be expected if the Ombudsman is
compromised in its ability to obtain confidential information as part of future
investigations.
Section 47F – Personal privacy
11. Section 47F of the FOI Act conditionally exempts a document where “its disclosure
would involve the unreasonable disclosure of personal information about any person.”
Access must be provided unless access would, on the balance, be contrary to the
public interest. (subsection 11A(5) of the FOI Act).
12. Personal information means information or an opinion about an identified individual,
of an individual who is reasonably identifiable:
whether the information or opinion is true of not; and
whether the information or opinion is recorded in a material form or not.
13. It is my view that the document contains such matter.
14. 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…
15. 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]).
16. 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.
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17. 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).
18. 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 Act:
Warren; Chief Executive Officer, Services Australia and
(Freedom of information) [2020] AATA 4557 at [83].
19. In my view the following factors do not support the release of this personal
information under section 47F of the FOI Act:
the individuals’ personal information, in particular their name, will identify them;
the personal information is unique and relates specifically to the individuals, and
is generally not well known or publicly available as it relates to the findings of a
private Ombudsman investigation;
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;
the disclosure of this information could expose concerned individuals to
unsolicited and inappropriate approaches by external parties;
release of the individuals’ personal information may cause stress for them or other
detriment; and
disclosure would prejudice the individuals’ right to privacy.
20. In my view to the extent that the document includes personal information of
individuals, 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.
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Section 11A – Public interest test
21. 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.
22. I 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.
23. I identified the following factors as weighing against disclosure:
disclosure of individuals’ personal information will not advance scrutiny of any
decisions;
disclosure would prejudice individuals’ right to privacy;
disclosure could lead to unwarranted approaches to the individuals which would
adversely impact their ability to perform their role and functions.
disclosure would reasonably be expected to prejudice the Ombudsman’s ability to
obtain confidential information;
disclosure would reasonably be expected to prejudice the proper and efficient
conduct of the investigations by the Ombudsman; and
disclosure could be expected to undermine the confidentiality provisions which
are central to the PID Scheme.
24. 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.
25. On balance, the Commission submits that disclosure of the whole document would be
contrary to the public interest. To the extent that the material contained in the
document is conditionally exempt under paragraph 47E(d) and section 47F of the FOI
Act, those parts are exempt from disclosure.
26. In my view these factors outweigh disclosure of the whole document for the purposes
of promoting the objects of the FOI Act, including to inform the community of
Government operation and inform on a matter of public confidence.
27. Paragraph 6.19 of the FOI Guidelines provides further detail on the factors that favour
disclosure in the public interest. I have identified the following factors as weighing in
favour of disclosure of parts of the document:
The disclosure will promote the objects of the FOI Act.
o This includes information about the operations of Government and its
practices, polices, and guidelines when dealing with members of the
public.
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o The disclosure will reveal the reason for a government decision and
provide background and contextual information that informed the decision.
o The disclosure will enhance the scrutiny of government decision making.
The disclosure will contribute to the administration of justice, including
procedural fairness.
28. I am prepared to release content in the document that relates to feedback from the
Ombudsman that the Commission should take steps to improve its handling of similar
matters in future. For this reason the Commission has prepared a marked up version
of the document that releases this information in part.
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