Dear FOI Contact Officer
OAIC ref: MR24/00901 | APSC ref: LEX 1155
We refer to your notice of Information Commission Review (
IC Review) received on 20 August
2024 seeking information outlined in paragraph 3.14 of the
Direction as to certain procedures
to be followed by agencies and ministers in Information Commissioner reviews (
Directions)
.
Please find our submissions in this matter below.
Scope of IC Review
1. This IC Review application concerns an internal review decision made by Ms Melanie
McIntyre of the Australian Public Service Commission (
Commission) on 15 May 2024.
2. The Commission understands from the Notice of IC Review that the Applicant has
sought a review of the Commission’s decision to refuse access to parts of the
document and contends that a substantially less redacted version of the document had
been released under the
Freedom of Information Act 1982 (
FOI Act). The Commission
provides these submissions to assist the Information Commission to deal with the IC
Review.
3. As an overarching submission that informs all the Commission’s actions with respect
to this request, this request relates to a document produced in the course of PID
investigation under the
Public Interest Disclosure Act 2013 (
PID Act), prior to 1 July
2023.
4. The Commission submits that, prior to 1 July 2023, section 65 of the PID Act operated
to apply an offence to disclosure of protected information obtained in the course of
conducting an investigation. This means that it would, in the view of the Commission,
possibly be an offence to release this particular document in full or significantly
redacted, revealing confidential, protected information, to the Applicant. There do not
appear to be any relevant exemptions under subsection 65(2) that apply to an FOI Act
request. An excerpt of the provision as at 30 June 2023 is Document 12 in the
document bundle. For the benefit of the Applicant, who will not have access to the
bundle, we also extract it here:
65 Secrecy—general
(1) A person commits an offence if:
(a) the person has information (protected information) that the person
obtained:
(i) in the course of conducting a disclosure investigation; or
(ii) in connection with the performance of a function, or the exercise of
a power, by the person under this Act; and
(b) the person:
(i) discloses the information to another person; or
(ii) uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the disclosure or use is for the purposes of this Act; or
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(b) the disclosure or use is for the purposes of, or in connection with, the
performance of a function, or the exercise of a power, of the person under this
Act; or
(c) the disclosure or use is for the purposes of, or in connection with, taking
action in response to a disclosure investigation; or
(e) the protected information has previously been lawfully published, and is not
intelligence information; or
(f) the protected information is intelligence information that has previously been
lawfully published, and the disclosure or use occurs with the consent of the
principal officer of the agency referred to in section 66 as the source agency
for the intelligence information.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see
subsection 13.3(3) of the Criminal Code).
(3) Except where it is necessary to do so for the purposes of giving effect to this Act
or another law of the Commonwealth, a person is not to be required:
(a) to produce to a court or tribunal a document containing protected
information; or
(b) to disclose protected information to a court or tribunal.
Background
5. On 17 March 2024, BZ (
Applicant), submitted a FOI request (LEX 876) seeking an
unredacted copy of a Public Interest Disclosure (
PID) report made by the Commission
regarding the recruitment of registrars of the Federal Court of Australia. A copy of the
FOI request is Document 1 of the attached document bundle.
6. On 9 April 2024, the Commission had released a partially redacted version of the
Document in response. A copy of this Document is Document 2 of the document
bundle. The accompanying decision notice, dated 9 April 2024, is at Document 3 of
the document bundle.
7. On 15 April 2024, BZ (
Applicant), made an internal review application of the primary
decision (LEX 954). On 15 May 2024, the Commission affirmed its original decision to
partially release the documents. The internal review decision notice is Document 4 in
the document bundle.
Further engagement with applicant
8. On 4 September 2024, the Commission wrote to the Applicant initiating engagement
in line with the Directions, suggesting further discussion to be held via telephone
conversation to resolve or narrow the issues in dispute. A copy of the letter sent to the
Applicant arranging contact is at pages 31 and 32, Document 5 in the document
bundle.
9. On the same day, the Applicant indicated their preferred mode of communication is
email, see page 31 of Document 5.
10. On 11 September 2024, the Commission proceeded to engage with the Applicant via
email, seeking further information on the substantially redacted version of the relevant
document the Applicant refers to.
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11. On the same day, the Applicant provided details of the document, that is, the date of
release, agency that released the document and the FOI reference number. The
Applicant also provided a link to the substantially unredacted document that the
Applicant asserts was released by the Commonwealth Ombudsman.
12. On 17 September, the Commission wrote back to the Applicant notifying them that the
link provided could not be opened. The Commission requested the Applicant to provide
a working link, or the document itself as an attachment to enable the Commission to
assist further. Correspondence in relation to further engagement is Document 6 in the
document bundle.
13. On Sunday 22 September 2024, the Applicant provided the substantially redacted
version of the document in question, via personal email address, as Right to Know
does not have capabilities to share/upload documents. The correspondence and
attached document from the Applicant are Document 7 and Document 8, respectively.
14. On 24 September, the Commission consulted again with the Commonwealth
Ombudsman, seeking confirmation whether they had released the relevant document
under the FOI Act, correspondence at Document 9. We note that we had engaged with
the Ombudsman in 2023 seeking confirmation on the release of this document, in
relation to a request from another applicant under the FOI Act, correspondence at
Document 10. This matter is now at the IC Review stage (
Ref: MR24/00108, Our ref:
LEX 964).
As a result of this matter, the Commission will now seek to make
submissions on that matter, given the further information obtained.
15. On 26 September 2024, the Commonwealth Ombudsman clarified that the documents
the Applicant had provided to the Ombudsman, which captured the Document in
question, were provided back to the Applicant under the FOI Act, referred to in
Document 11.
16. That is:
a. the Ombudsman received a request under the FOI Act on 10 November 2021
that included the document that was substantially un-redacted;
b. and so in the FOI Act decision the Ombudsman made on 14 January 2022
(FOI-2020-10120), provided the same document back as part of the FOI Act
decision at that time.
17. This is a different understanding of the facts than the Commission had at the time of
making its decisions at first instance and on review, given the correspondence from
the Ombudsman at Document 10.
Commission’s submissions
Conditional exemptions and public interest test
18. The Commission relies on the reasoning outlined in the original FOI decision dated 9
April 2024 (Attachment A, paragraphs 4 – 23), and internal review decision notice
dated 15 May 2024 (Attachment A, paragraphs 2 – 23), in relation to the application of
section 47E(c), section 47E(d) and section 47F conditional exemptions to the
document, see Document 4 and 5, respectively.
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19. The Commission refers to the decision dated 21 November 2023, by acting Freedom
of Information Commissioner, Elizabeth Hampton, in
‘YU and Bureau of Meteorology
(Freedom of information) [2021] AICmr 75 (
YU and BOM), which involves, amongst
other documents, an investigation report made under section 51 of the PID Act. This
decision upheld the importance of protecting information collected during a PID
investigation process, and accepted 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, see Paragraph 31 of the
YU and BOM decision.
20. In the decision of
YU and BOM, the Information Commissioner was in favour of the
submitted public factors against disclosure, and was satisfied that disclosure could
reasonably be expected to:
1. Prejudice an agency’s ability to obtain confidential information.
2. Impede the integrity of the confidential investigation process under the PID
Act.
3. Impede an agency’s ability to effectively and efficiently manage its employees.
21. The Commission submits that these factors also formed part of its public interest test
under section 11A(5), when making its own primary decision (dated 9 April 2024) in
this matter, which can be found at Attachment A, paragraphs 24 - 29, page 18 of
Document 3 in the document bundle, as well as its internal review decision (dated 15
May 2024), Attachment A, paragraphs 24 – 29, page 28 of Document 4.
22. We acknowledge that there had been a miscommunication between the Commission
and the Ombudsman, and we had provided a partial release decision on the basis that
the Ombudsman had not previously released the document under the FOI Act to the
Applicant.
23. Paragraph 3.18 of the FOI Guidelines provide the following:
An FOI decision maker must approach each decision with an open mind…and is not
prevented from making a decision by reason of having dealt previously with a similar
issue or applicant, or having expressed a view about FOI Act principles or
requirements.
24. The Commission submits that it is not bound by FOI decisions made by other agencies,
and as the author of the Document, the Commission maintains its position that the
exemptions applied on the Document, should remain. It also maintains the reasoning
as stated in the decisions at first instance, and on review.
25. To re-iterate, the release of an unredacted version of this document by the
Commission, would undermine the Commission’s obligation to carry out its functions
under the PID Act, including its ability to maintain confidentiality and protect information
obtained during an investigation.
26. At Paragraph 44 of the decision in
YU and BOM, the Information Commission was
satisfied that there is strong public interest in ensuring the confidentiality protections
under the PID Act are maintained, and by operation of section 65 of the PID Act. We
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also, again, refer to section 65 of the PID Act relating to disclosures made prior to
1 July 2023, as is the case for this request.
Applicant already has access to the documents
27. In the present matter, the correspondence with the Applicant indicates that the
Applicant is seeking documents which they already have access to, see Document 6.
28. The Commission does not propose to make a decision under section 55G to again
‘release under the FOI Act’ a document provided by the Applicant that they already
have access to. The Commission maintains that the conditional exemptions apply to
protect the information.
29. In light of the above reasons, the Commission respectfully submits that the Information
Commissioner should exercise discretion under section 55K of the FOI Act affirming
the IC reviewable decision.
Please feel free to contact the Commission should you require further information.
The Commission has provided a copy of these submissions to the Applicant.
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