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Your reference: MR24/00487
Our reference: FOI-2024-10017
26 June 2024
Sarveshcika Yuvaraj
Office of the Australian Information Commissioner
Intake and Early Resolution Team
By email only:
xxxxx@xxxx.xxx.xx
Dear Ms Yuvaraj
Submissions - IC Review MR24/00487
Thank you for the opportunity to provide submissions in this matter.
1. Based on Mr Baker's email of 20 May 2024 to the applicant, we under the scope
of the IC review is limited to our decision to exempt Document 4. Accordingly, I
have focused on this document in the submissions below. Please let us know if
you would like any submissions on other aspects of the decision under review.
2. I have enclosed the documents requested in paragraph 3.14 of the
Commissioner's Direction on IC reviews.
1:
•
Attachment A is the original FOI request
1 I have not included the attachments in the version of this correspondence sent to the applicant, as outlined in the
direction.
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•
Attachment B is a folio of correspondence with the applicant, including
evidence of attempts to engage informally to resolve the matter before
the IC
•
Attachment C is an unredacted copy of the document at issue. I note
that the copy attached includes some deletions, however these appear in
the version of the document requested by applicant (noting the applicant
sought documents from the Office's disclosure log), no redactions have
been added as part of the decision-making process in the current matter.
If you believe it would assist you to see a completely unredacted copy of
the transcript, please let us know.
Background on Document 4
3. The document at issue in the review is an automatically generated transcript of
an 'all staff' meeting on 12 July 2023. This meeting was called after the Royal
Commission into the Robodebt Scheme released its final report on 7 July 2023, to
allow the Ombudsman to explain the findings of the Commission to staff and
discuss the findings in relation to the Office.
4. The purpose of the meeting was to al ow a candid discussion of a contentious
issue. The automatic transcript functionality in Microsoft Teams was turned on
so that staff who could not attend the meeting could read about it later.
Errors in Document 4
5. The transcript is of a very low quality and materially misrepresents the
discussion in the meeting. Many words are incorrectly captured, often in ways
that distort or even reverse the meaning of the sentences in which they appear.
6. By way of example, the first line of the transcript begins:
"Across the country here in Canberra, that's in particular, the nanny wil people"
This should have captured the Ombudsman's Acknowledgement of Country
paying respects to the Ngunnawal people, but the topic is barely discernible,
even to an audience familiar with the content.
Submissions
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7. Disclosure of the transcript in these circumstances would have a substantial
adverse effect on operations of the Office and is against the public interest. The
Office maintains the document is therefore conditional y exempt under s 47E of
the FOI Act.
8. Firstly, the purpose of the meeting was to al ow a candid discussion of the
outcomes of the Royal Commission among staff, and for staff to freely ask
questions of the executive about the topic. It is necessary for the proper
management of personnel to offer an opportunity for staff to discuss and debrief
after a significant event, such as the Royal Commission and release of
associated findings, that directly impacts on staff and their work. Forums of such
nature are designed to al ow staff to debrief in a safe environment and explore
issues that may be causing concern or anxiety freely, and away from the public
eye.
9. The Office has a primary duty of care to ensure, so far as reasonably practicable,
the health and safety of workers and other who may be affected by their
business or undertaking. Among other things, this duty requires the office to take
steps to eliminate, or if elimination is not possible, manage risks to health and
safety of personnel while at work. Undertaking meetings such as this, after a
significant event, is an important aspect of meeting such duties. To ensure that
such duties are being appropriately met, it is crucial meetings occur in a private
and safe manner, so that staff can freely provide information, raise concerns,
obtain information they require to manage the impact of the significant event on
themselves and their staff and can explore issues of concern openly.
10. The knowledge that a transcript of such discussions might be publicly disclosed
would be reasonably likely to inhibit the wil ingness of the executive to speak with
full candour to an internal audience, as well as inhibiting the willingness of staff
to participate in such discussions in the future. This would have a substantial
adverse effect on the agency's management of staff and could have a
significant effect on the wel being and morale of staff. This would pose a risk of
harm to staff, and undermines the Offices ability to manage the health and
safety of staff in future.
11. The adverse impact of release would likely be amplified in this case, noting the
nature of the application would see the document published publicly on a
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website. The Office considers the nature of the release in this instance, noting the
above concerns is relevant, indicating disclosure may be unreasonable.
2
12. Secondly, the automatically generated transcript materially misrepresents what
occurred at the meeting. These errors are more than merely typographical, and
at some points impact the meaning of what was said during the meeting. This is
a nuanced and complex topic, and in these circumstances, disclosing the
transcript would amount to publishing incorrect information about the views of
the Ombudsman and staff.
13. As outlined in the decision - we understand that s 11B(4) of the FOI Act expressly
states that certain factors must not be taken into account in deciding whether
access to a document would be contrary to the public interest. Our concern is
not that providing access to the document could result in a person
misinterpreting or misunderstanding
the document.
14. Rather, the document is not a true record of what was said in the meeting.
Providing access would amount to publishing an inaccurate record of the
Ombudsman's views on a sensitive topic. This would cause confusion and could
compromise confidence in the Office far beyond merely misunderstanding the
document itself. This would be reasonably likely to inhibit the wil ingness to share
complaints with our Office and the persuasiveness of our conclusions. This
would be a substantial adverse effect on the operations of the Office, and
contrary to the public interest.
15. In assessing the public interest test, we ful y accept that the Office's position on
the findings of the Royal Commission is an important topic of significant public
interest. However, this does not mean there is a public interest in releasing a
document which material y misrepresents the Office's position on this sensitive
topic.
2 FG’ and National Archives of Australia [2015] AICmr 26 [44]
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16. Disclosure of an incorrect record about what was said in an internal meeting
does not serve to increase transparency about a matter of public importance.
The Ombudsman has published a statement in response to the findings of the
royal commission, which provides far better public visibility of his views on the
outcome.
17. In considering the public interest test, we consider that there are a number of
factors against disclosure that are relevant, and would outweigh the public
interest factors favouring disclosure. These include:
a. prejudice to the welfare and wel being of staff in future;
b. prejudice to the Office's ability to comply with work health and safety
obligations;
c. release may have a substantial adverse effect on the management and
assessment of personnel in future;
d. prejudice to trust and confidence in the Office, there therefore the Office's
ability to complete core functions; and
e. prejudice to candour and frankness during staff meetings on key issues.
Thank you for the opportunity to provide submissions on this matter. Please contact
me if we can be of any further assistance.
Yours Sincerely
Matt Jackson
Assistant Director
Legal Team
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