Our Ref
LEX 1306
Jenny Bree
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Bree
Your Freedom of Information request - decision
I refer to your request, received by the Department of Employment and Workplace Relations
(department) on 4 December 2024, for access under the
Freedom of Information Act 1982 (FOI Act) to the following document:
“I request unredacted pages 23 - 29 of the documents published on your disclosure
log on 10 September 2024 re bullying and harassment by Workforce Australia
providers.”
My decision
The department holds 1 document (totalling 7 pages) that falls within the scope of your
request.
I have decided to grant you
access in part to the document on the basis that the remaining
parts of the document contain deliberative material, certain operations of an agency and
personal privacy.
A schedule of the document and the reasons for my decision are set out at
Attachment A.
How we will send your document
The document being released is attached to my email to you.
You can ask for a review of my decision
If you disagree with any part of the decision, you can ask for a review. There are 2 ways you
can do this. You can ask for an internal review by the department or an external review by
the Australian Information Commissioner.
GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
You can find information about your rights of review under the FOI Act, as well as
information about how to make a complaint at
Attachment B.
Further assistance
An extract of relevant legislation is available at
Attachment C.
If you have any questions, please email xxx@xxxx.xxx.xx.
Yours sincerely
Chris
Authorised decision maker
Department of Employment and Workplace Relations
20 December 2024
Attachment A
SCHEDULE OF DOCUMENTS – JENNY BREE
Number
Pages
Date
Description
Decision
Exemptions and Comments
1.
1-7
5 July 2024
Email providing options re providers Grant access in
Deliberative material deleted under
requesting payslips to Ministers
part
subsection 47C(1).
Office
Operations of agencies material deleted
under subsection 47E(d).
Personal information deleted under
subsection 47F(1).
REASONS FOR DECISION
What you requested
1. On 4 December 2024 the department received your request, seeking access under the FOI
Act to:
“I request unredacted pages 23 - 29 of the documents published on your disclosure
log on 10 September 2024 re bullying and harassment by Workforce Australia
providers.”
What I took into account
2. In reaching my decision, I took into account:
• your request dated 4 December 2024
• the document that falls within the scope of your request
• consultations with departmental officers about the nature of the document and the
operating environment and functions of the department
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
• the FOI Act.
Reasons for my decision
3. I am authorised to make decisions under subsection 23(1) of the FOI Act.
4. I have decided that parts of the document that you requested are conditionally exempt
under the FOI Act. My findings of fact and reasons for deciding that exemptions apply to
that document are discussed below.
Section 47C of the FOI Act – deliberative processes
5. I have applied the conditional exemption in section 47C of the FOI Act to parts of the
document.
6. Subsection 47C(1) of the FOI Act conditionally exempts documents containing
deliberative processes. Deliberative process is content that is in the nature of, or relating
to, either:
a. an opinion, advice or recommendation that has been obtained, prepared or
recorded, or
b. a consultation or deliberation that has taken place, in the course of, or for the
purposes of, the deliberative processes of the government, an agency, or
minister.
7. The FOI Guidelines provide at paragraph 6.54, that:
GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
‘… a deliberative process involves the exercise of judgement in developing and
making a selection from different options… [The term] ‘deliberative process’
generally refers to the process of weighing up or evaluating competing
arguments or considerations or to thinking processes – the process of reflection,
for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.’
8. I have reviewed the document and I have consulted with the Funds and Payments
Branch and the Workforce Australia for Individuals Division. I am satisfied that the
document contains material in the nature of advice and recommendations recorded.
The recommendations relate to the department’s proposed policy response to
Workforce Australia Service Providers requiring participants to provide payslips.
9. I am satisfied that the recommendations were compiled with the purpose of being
reviewed and deliberated by the Minister. The recommendations had been created for
this discrete purpose.
10. This deliberative process relates to the functions of the department in respect to the
department’s responsibility over delivery of the Workforce Australia program. A
component of this delivery is the development and implementation of compliance and
assurance measures for parties within the program.
11. For completeness, I am satisfied that the exceptions in subsections 47C(2) and 47C(3) of
the FOI Act do not apply.
12. Accordingly, I have decided that parts of the document contain deliberative process
which is conditionally exempt under subsection 47C(1) of the FOI Act.
13. I have discussed the public interest considerations below.
Public interest
14. Section 11A(5) provides that the agency or Minister must give the person access to the
document if it is conditionally exempt at a particular time unless (in the circumstances)
access to the document at that time would, on balance, be contrary to the public
interest.
15. When weighing the public interest for and against disclosure under subsection 11A(5) of
the FOI Act, I have taken into account relevant factors in favour of disclosure. In
particular, I have considered the extent to which disclosure would promote the objects
of the FOI Act, specifically by informing public debate on the department’s response to
the matter of Workforce Australia providers requesting participants to provide payslips.
16. I have also considered the factors against disclosure. Specifically, the material relates to
policy recommendations and options for managing non-compliance or mitigating risk of
non-compliance with contracted services providers. Release of this information would
detrimentally affect the department’s ability to manage or mitigate risk of non-
compliance in relation to employment services providers which, in turn, would harm the
interests of members of the public that use employment services. Such an outcome
would be contrary to the public interest.
17. In balancing the factors for and against disclosure of the deliberative matter, I consider
that the factors against disclosure outweigh those in favour of disclosure at this time.
18. I am therefore satisfied that parts of the document are conditionally exempt under
subsection 47C(1) the FOI Act.
19. I have not taken into account any of the irrelevant factors set out in subsection 11B(4) of
the FOI Act in making this decision.
Section 47E of the FOI Act – certain operations of agency
20. I have applied the conditional exemption in subsection 47E(d) of the FOI Act to parts of
the document.
21. Section 47E of the FOI Act provides that:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
22. The document contains internal positional email addresses which are not publicly
available. The department administers services to a significant number of members of
the public. It also receives a significant volume of correspondence from members of the
public each day.
23. To ensure the department can respond to and manage correspondence with the public
effectively, it has established designated contact points for members of the public to use
when communicating with the department. These established channels are monitored
to ensure quality of service, and that the department is able to respond to increased
demand in a particular service as required.
24. Noting that the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act, in my view, disclosure of the above-
mentioned email addresses could reasonably be expected to result in additional or
misdirected communications with those positional internal mailboxes. This would result
in correspondence being mishandled, misdirected, lost, duplicated or double-handled on
account of it not being directed to the most appropriate teams through the established
channels of communication.
25. Moreover, with the view of attempting to obtain a faster or preferential service,
members of the public may contact specific internal positional mailboxes rather than
directing their query to the dedicated channel for contacting the department. This
practice would unfairly prejudice other members of the public who use the appropriate
channels.
26. I consider that disclosure would have a substantial adverse effect on the proper and
efficient conduct of the operations of the department within the meaning of subsection
47E(d) of the FOI Act, as I am satisfied disclosure would impede the department’s ability
to direct and respond to incoming correspondence. I have considered the public interest
test below.
27. The document also contains dissemination limiting markers, which are not publicly
available. These markers are designed for internal use by the agency to indicate the level
of information security required for a particular document or communication. Over time
these markers may become less relevant or incorrect as information increases or
decreases in sensitivity.
28. As discussed above, the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act. Release of department
documents with incorrect or out of date markers interfere with the ability of the
department to operate its information management procedures.
29. Accordingly, I consider that parts of the document are conditionally exempt under
subsection 47E(d) of the FOI Act.
30. I have discussed the public interest considerations below.
Public Interest
31. When weighing the public interest factors for and against disclosure under subsection
11A(5) of the FOI Act, I have taken into account relevant factors in favour of disclosure.
In particular, I have considered the extent to which disclosure would promote the
objects of the FOI Act, increase scrutiny of the Government’s activities and, to a limited
degree, inform public debate on a matter of public importance.
32. I have considered the factors that weigh against disclosure by considering the extent to
which disclosure could reasonably be expected to harm the interests of an individual or
a group of individuals.
33. As discussed above, I consider that disclosure of this material could reasonably be
expected to result in harm to the interests of individuals who receive services from the
department, and the broader public, given the adverse operational impact of disclosure
which could be reasonably expected.
34. In assessing the factors for and against disclosure of the relevant information, I consider
that the factors against disclosure outweigh those in favour of disclosure at this time. I
have not taken into account any of the irrelevant factors pursuant to subsection 11B(4)
of the FOI Act in making this decision.
35. Accordingly, I am satisfied that parts of the document are conditionally exempt from
release under subsection 47E(d) of the FOI Act.
Section 47F of the FOI Act - personal privacy
36. I have applied the conditional exemption in subsection 47F(1) of the FOI Act to the
document.
37. Subsection 47F(1) of the FOI Act relevantly provides that a document is conditionally
exempt if disclosure would involve the unreasonable disclosure of personal information
about any person (including a deceased person). In determining whether disclosure
involves the ‘unreasonable disclosure of personal information’, I must have regard to the
matters under subsection 47F(2).
38. I am satisfied the document contains ‘personal information’ noting ‘personal
information’ under the FOI Act has the same meaning as in the
Privacy Act 1988. This is
because the document contains the names and contact details of identified individuals
and individuals who are reasonably identifiable.
39. In addition to the factors specified in subsection 47F(2) of the FOI Act, paragraph 6.133
of the FOI Guidelines provides:
The personal privacy conditional exemption is designed to prevent the unreasonable
invasion of third parties’ privacy. The test of ‘unreasonableness’ implies a need to
balance the public interest in disclosure of government-held information and the
private interest in the privacy of individuals.
40. I am satisfied that the disclosure of the personal information would be unreasonable for
the following reasons:
• the information is not well known
• the person/s to whom the information relates is not known to be (or to have
been) associated with the matters dealt with in the document
• the information is not available from publicly accessible sources
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
• the individuals concerned have not consented to the release of their personal
information.
41. On this basis, I have decided that parts of the document contain personal information
which is conditionally exempt under subsection 47F(1) of the FOI Act.
42. I have discussed the public interest considerations below.
Public interest
43. When weighing the public interest for and against disclosure under subsection 11A(5) of
the FOI Act, I have taken into account relevant factors in favour of disclosure. In
particular, I have considered that the disclosure would, to an extent, promote the
objects of the FOI Act
44. I have also considered the relevant factors weighing against disclosure, indicating that
access would be contrary to the public interest. In particular, I have considered the
prejudice to the right of an individual to privacy.
45. Based on these factors, I have decided that, in this instance, the public interest in
disclosing the information in the abovementioned document is outweighed by the public
interest against disclosure. I have not taken into account any of the irrelevant factors set
out in subsection 11B(4) of the FOI Act in making this decision.
46. For the reasons set out above, I am satisfied that parts of document are conditionally
exempt under subsection 47F(1) of the FOI Act.
Attachment B
YOUR RIGHTS OF REVIEW
Asking for an explanation of an FOI decision
Before you ask for a formal review of an FOI decision, you can contact us and we will explain
the decision to you.
Asking for a formal review of an FOI decision
If you still believe the decision is incorrect, the FOI Act gives you the right to apply for a
review of the decision. Under sections 54 and 54L of the FOI Act, you can apply for a review
of an FOI decision by:
• an internal review officer in the department and/or
• the Australian Information Commissioner.
Applying for an internal review by an internal review officer
If you apply for internal review, a different decision maker to the one who made the original
decision will review your request. The internal review decision maker will consider all
aspects of the original decision afresh and decide whether the decision should change.
An application for internal review must be made in writing within 30 days of receiving this
letter. You can lodge your application by either:
Post:
Information Law Team
Legal and Assurance Division
Department of Employment and Workplace Relations
Location Code: C50MA1
GPO BOX 9880
CANBERRA ACT 2601
or
Email:
xxx@xxxx.xxx.xx
Applying for external review by the Australian Information Commissioner
If you do not agree with this decision, you can ask the Australian Information Commissioner
to review the decision.
You have 60 days to apply in writing for a review by the Australian Information
Commissioner
You can lodge your application in one of the following ways:
Online:
https://webform.oaic.gov.au/prod?entitytype=ICReview&layoutcode=ICReviewWF
Email:
xxxxx@xxxx.xxx.xx
Post:
Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Complaints to the Australian Information Commissioner
Australian Information Commissioner
You may complain to the Australian Information Commissioner about action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act.
A complaint to the Australian Information Commissioner must be made in writing and can be
lodged in one of the following ways:
Online:
https://webform.oaic.gov.au/prod?entitytype=Complaint&layoutcode=FOIComplaintWF
Email:
xxxxx@xxxx.xxx.xx
Post:
Australian Information Commissioner
GPO Box 5288
SYDNEY NSW 2001
Attachment C
RELEVANT LEGISLATION
47C Public interest conditional exemptions—deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in
the course of, or for the purposes of, the deliberative processes involved in the functions
of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note: An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or tests) of
scientific or technical experts, whether employed within an agency or not, including
reports expressing the opinions of such experts on scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is established
within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision given in the
exercise of a power or of an adjudicative function.
Note: Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the
following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by
a person for access to a document by reason only of the inclusion in the document of
matter relating to that person.
