- documents held which discuss the proposed salary or salary range of IFA'S for
principal directors -documents that outline how the OAIC has ensured principal
director duties align to the EL2 duties in the ILS published by the APSC, or
alternatively how their duties sit above or outside of the EL2 ILS and how EL2
classification is stil appropriate in that circumstance
- documents that outline how it is good use of public money to pay an EL2 more
than other EL2's if their duties meet the description of an EL2 in the ILS
- documents which describe which other agencies "commonly" place EL2's on
IFA'S, the previous document release indicates there are no documents held by
the agency that actual y recorded which agencies have these arrangements, so
it does not appear that OAIC actual y sought advice or undertook consultation
before drawing this conclusion.
-the remainder of the contents of the document partial y released to me in my
previous request.
Request timeframe
Your request was made on 24 October 2024. Consultation with third parties was
required and as such the time frame for processing your request was extended by 30
days.
This means that a decision on your request is due by 24 December 2024.
Decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to FOI requests on behalf of the OAIC.
Subject to the following provisions of the FOI Act, I have made a decision to:
• grant access in part to 4 documents
Searches Undertaken
The FOI Act requires that all reasonable steps have been taken to locate documents
within scope of an FOI request.
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The following line areas of the OAIC conducted reasonable searches for documents
relevant to you request:
• Transformation team
• Executive
Searches were conducted across the OAIC’s various document storage systems
including:
• the OAIC’s document holding system – Content Manager
• OAIC’s email system
• general computer files
Having consulted with the relevant line areas and undertaken a review of the records
of the various search and retrieval efforts, I am satisfied that a reasonable search has
been undertaken in response to your request.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the following:
• your FOI request dated 24 October 2024
• the FOI Act, in particular sections 3, 11, 11A, 15, 26, 24A and 47E of the FOI Act
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act to which regard must be had in performing a
function or exercising a power under the FOI Act (FOI Guidelines)
• third party submissions in relation to the release of the documents
• consultation with AGD, PM&C and relevant areas of the OAIC.
Access to edited copies with irrelevant and exempt matter deleted (section 22)
In accordance with section 22 of the FOI Act, an agency must consider whether it
would be reasonably practicable to prepare an edited copy of documents subject to
an FOI request where material has been identified as exempt or irrelevant to the
request.
I have determined that FOI Act exemptions apply to this material.
I have also identified the following material within the documents to be irrelevant or
out of scope of your request:
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• information that does not relate to the creation of the Principal Director role,
the Principal Director role duties and the use of an Individual Flexibility
Arrangement (IFA).
Accordingly, I have made an edited copy of the documents which removes this
irrelevant material and otherwise grants you access to the material in scope of your
request.
Documents cannot be found, do not exist or have not been received – Section 24A
of the FOI Act
Section 24A(1) of the FOI Act provides that an agency may refuse a request for access
to a document requested under the FOI Act if all reasonable steps have been taken to
find the document and the agency is satisfied that the document cannot be found or
do not exist. You request documents containing
documents which describe which
other agencies "commonly" place EL2's on IFA'S.
Details of searched undertaken are set out above, and having consulted with the
relevant line areas and undertaken a review of the records of the various search and
retrieval efforts, I am satisfied that a reasonable search has been undertaken in
response to your request. No documents containing information relating to the
arrangements of other agencies regarding IFA’s.
As such, I have made the decision to refuse this part of your request under section
24A of the FOI Act on the basis that all reasonable steps have been taken to find the
documents you have requested and no documents could be found.
Section 47E(c) – Management or assessment of personnel
In accordance with section 47E(c) of the FOI Act, I have made a decision to exempt
material on the basis that disclosure would or could reasonably be expected to have
a substantial adverse effect on the management or assessment of personnel.
Paragraph 6.14-6.16 of the FOI Guidelines explains that the test “would or could
reasonably be expected to”:
6.14 The test requires the decision maker to assess the likelihood of the
predicted or forecast event, effect or damage occurring after disclosure of a
document.
6.15 The use of the word ‘could’ is less stringent than ‘would’ and requires
analysis of the reasonable expectation rather than the certainty of an event,
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effect or damage occurring. It may be a reasonable expectation that an effect
has occurred, is presently occurring, or could occur in the future.
6.16 The mere risk, al egation, possibility, or chance of prejudice does not
qualify as a reasonable expectation. There must be, based on reasonable
grounds, at least a real, significant or material possibility of prejudice, if they
can be included without disclosing exempt material (s 26, see Part 3).
The material that I have decided is subject to conditional exemption includes
meeting notes that consider and plan for the departure of staff at the OAIC.
The FOI Guidelines provide at 6.103 that:
For this conditional exemption to apply, the document must relate to either:
•
the management of personnel – including broader human resources policies
and activities, recruitment, promotion, compensation, discipline, harassment
and work health and safety
I note that the OAIC has undergone a restructure in 2024. As part of this restructure,
a number of staff have departed the OAIC. The APSC has publicly available
information about SES staff departing the public service Senior Executive Service -
ending employment | Australian Public Service Commission. However, its
application to SES staff in particular circumstances is a confidential process between
the agency head and the relevant staff. The documents include material that relates
to the management of personnel.
In my view, it would have a substantial and adverse impact on the management of
personnel if documents around these individual processes were disclosed. It would
undermine the confidential nature of these processes and both management and
individual SES would be less willing to engage with a process if these documents
were released. This would impact on the ability of the OAIC to make such offers when
appropriate and of staff to consider such offers.
For the reasons given above, I consider the relevant documents identified in the
schedule are conditionally exempt under section 47E(c) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test.
My consideration of the public interest test, in respect of all the material subject to
conditional exemption in this document is discussed below.
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Section 47E(d) – Operations of an agency
Litigation funding arrangements
As a Commonwealth agency, the OAIC is required to comply with the
Legal Services
Directions 2017 (the Directions). Part 5 of the Directions only allows the use of in-
house lawyers for litigation in certain circumstances with the approval of the
Attorney-General. In general, the OAIC engages external legal providers for litigation
in compliance with the Directions.
In my view, if the material about the litigation budget is made publicly available, of
the Commissioner to confidential y engage with Government and other relevant
stakeholders on matters relating to the ongoing funding. This would have a
substantial and adverse impact on the ability of the OAIC to determine the engage
most funding option for litigation.
Mobile phone number of an APS employee
In the IC review decision of
‘PX’ and Australian Federal Police (Freedom of information) [2019] AICmr 8 at [64], it was found that, since the agency in this matter had in place
“…procedures in place to manage their contact with members of the public”, the
release of direct contact details of staff
“…would have a substantial adverse effect on
the proper and efficient conduct…” of the relevant agency.
Similarly, in In
‘WN’ and Inspector General of Taxation [2020] AICmr 70 at [34] the
Information Commissioner accepted that:
…unsolicited cal s to IGT employees’ direct telephone numbers and work
mobile telephone numbers wil fal outside wil fal outside the integrated
service platform and would not be electronical y recorded, adversely affecting
accountability, transparency, quality assurance and the provision of support to
employees in relation to those cal s…on balance I find that this circumstance
could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the IGT’s operations.
Noting the above, the direct contact details, including the mobile phone number of
an employee of the Attorney General’s Department, is not publicly available. I
therefore consider that release of the direct contact details would, or could
reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the department’s operations. This is on the basis that the release
of this information is likely to result in a high volume of unsolicited communications
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to the staff, which would divert resources from the ordinary functions of the
department.
For the reasons given above, I consider the relevant documents identified in the
schedule are conditionally exempt under section 47E(d) of the FOI Act.
As section 47E is a conditional exemption, I am also required to consider the
application of a public interest test.
Application of the public interest test – (section 11A and 11B)
As provided above, I have considered that material within the documents is subject
to conditional exemption under section 47E of the FOI Act.
Section 11A(5) provides that where a document is considered to be conditionally
exempt, an agency
must give the person access to that document unless the FOI
decision maker would, on balance, would be contrary to the public interest.
This means that I must balance factors for and against disclosure in light of the
public interest.
In Chapter 6, the FOI Guidelines provide the following guidance:
6.225 It is not necessary for an issue to be in the interest of the public as a whole. It
may be sufficient that the issue is in the interest of a section of the public
bounded by geography or another characteristic that depends on the
particular situation. An issue of particular interest or benefit to an individual
or smal group of people may also be a matter of general public interest.
In the AAT case of
Utopia Financial Services Pty Ltd and Australian Securities and
Investments Commission (Freedom of information) [2017] AATA 269, at paragraph 133
of the Decision Deputy President Forgie explained that:
… the time at which I make my decision for section 11A(5) requires access to be
given to a conditional y exempt document “at a particular time” unless doing so
is, on balance, contrary to the public interest. Where the balance lies may vary
from time to time for it is affected not only by factors peculiar to the particular
information in the documents but by factors external to them.
The FOI Act sets out four factors favouring access, which must be considered if
relevant. Of these factors, we consider the fol owing to be relevant:
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• promote the objects of the FOI Act, and
• promote effective oversight of public expenditure.
Section 11B(4) of the FOI Act provides factors which are not to be taken into account
in , which I have had regard to. Section 11B does not further prescribe the factors
against disclosure to be considered. In considering the documents subject to this
request, I consider that the follow factors do not favour disclosure:
• disclosure would have an adverse effect on the OAIC’s proper and efficient
operations relating to the management of litigation work.
• disclosure of the direct contact details of an APS information contained in the
documents would divert resources from the ordinary operations of the
department.
• disclosure could reasonably be expected to prejudice the management
function of the Agency
I have had regard to the recent decision in
Jonathan Sequeira and Australian
Broadcasting Corporation (No. 3) (Freedom of information) [2023] AICmr 30 which
stated that:
Access must be provided unless the degree of that harm is such that it
outweighs the public interests in disclosure that underpin the FOI Act and apply
in the particular case . The test is not whether disclosure would be positively in
the public interest. Rather it is whether, on balance, disclosure would be
contrary to the public interest, that is, that some harm or damage to the public
interest which outweighs the benefit to the public in disclosure would ensue
In balancing these factors for and against, I acknowledge the importance of
promoting the objects of the Act and the effective oversight of public expenditure.
However, I have balanced this with the need to manage the agencies litigation
funding and personnel matters. I consider that in relation to the material I have
found to be exempt, the disclosure would not significantly contribute to providing
you additional access to your own personal information or promoting effective
oversight of public expenditure but would significantly harm the operations of the
agency.
On balance, I consider the public interest factors against disclosure to be more
persuasive than the public interest factors favouring disclosure. I am satisfied that
the public interest is to withhold the exempt material.
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Disclosure log decision
Section 11C of the FOI Act requires agencies to publish online document released to
members of the public within 10 days of release, except if they contain personal or
business information that would be unreasonable to publish.
I have made a decision to publish the documents subject to your request on the
OAIC’s disclosure log.
Release of document
The documents are enclosed for release.
The documents are identified in the attached schedule of documents.
Please see the following page for information about your review rights.
Yours sincerely,
Sarah Forrester
A/g Director (FOI)
Governance, Risk and Compliance
24 December 2024
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If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Reviews Tribunal (ART).
You may apply to the Information Commissioner for a review of my decision (IC
review). If you wish to apply for IC review, you must do so in writing within 60 days.
Your application must provide an address (which can be an email address or fax
number) that we can send notices to, and include a copy of this letter. A request for
IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the ART, the Information
Commissioner may decide not to undertake an IC review.
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Section 57A of the FOI Act provides that, before you can apply to the ART for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxx@xxxx.xxx.xx. More information is available on the Access our information page
on our website.
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