17 January 2025
FOI ref: 2024/0327
Archibald Andrews
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Andrews,
Notice of Decision for Freedom of Information Request no. 2024/0327
The purpose of this letter is to give you a decision about access to documents that you have
requested under the Freedom of Information Act 1982 (FOI Act).
Summary
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to
FOI requests.
You lodged an FOI request on 18 December 2024 for access to:
‘I request under the Freedom of Information Act copies of any written communications,
including emails, between the President of the Administrative Review Tribunal and
Deputy President Clare Thompson in relation to:
(a) her use of social media general y and in relation the her posts on social media
platform X – then known as Twitter – between 2020 to 2022 and tabled during Senate
Estimates in November 2024;
(b) the types of cases and the jurisdictional areas within which she would be, or would
not be, assigned cases.’
To locate documents relevant to your FOI request, I have consulted with the President’s
Chambers and Deputy President Clare Thompson. As a result, I have identified one (1)
document which fal s within the scope of your request:
Email chain between President Kyrou and Deputy President Clare Thompson between
6 November 2024 to 7 November 2024
Decision
I have decided to:
grant partial access to part (a) of your request
refuse access to part (b) of your request
In making my decision, I have taken the fol owing into account:
the content of the documents that fal within the scope of your request;
the FOI Act, specifical y sections 11, 21(1)(c), 22, 24A, 47E(c), 47E(d) and 47F; and
the guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act (FOI Guidelines).
Reasons for my decision
Section 47E(c) – Public interest conditional exemption – certain operations of agencies
Ful names of Tribunal staff members
Section 47E(c) provides that a document is conditional y exempt if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the management of
personnel by an agency.
In part of the email chain is the ful name of a Tribunal staff member. Release of this information
could reasonably be expected to identify those persons and create a risk that the persons
could become a potential target from aggrieved applicants dissatisfied with the outcome of a
review application. In the interest of promoting workplace health and safety, the Tribunal has
developed a human resources policy to not release ful names of staff members in any external
outgoing correspondence. For this reason, I find that ful names of Tribunal staff members are
conditional y exempt under section 47E(c) as disclosure would have a substantial adverse
effect on the management of Tribunal personnel.
Public interest – Section 11A(5) of the FOI Act
As the information is conditional y exempt, I have considered whether access to the information
would, on balance, be contrary to the public interest having regard to the FOI Guidelines. While
the objects of the FOI Act include ful transparency and accountability, I do not consider that
this object is diminished with the exempting of staff members’ last names. Staff members are
easily identifiable by first names and titles should this be required. I do not consider that
releasing staff members’ last names to the world at large wil inform any public debate nor
promote increased effective oversight of public expenditure.
Conversely, a significant factor against disclosure is that disclosure could reasonably be
expected to prejudice staff members’ right to privacy and safety and interfere with a human
resources policy to maintain workplace health and safety by not publicly disclosing the ful
names of staff members. On balance, I consider that the workplace health and safety of
Tribunal personnel must be given greater weight. Therefore, I find that disclosure of the
information would be contrary to the public interest under section 11A(5) of the FOI Act.
Section 47E(d) – Public interest conditional exemption – certain operations of agencies
Contact details of Tribunal staff members
Section 47E(d) provides that a document is conditional y exempt 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.
In various parts of the email chain are the direct telephone numbers and email addresses of
Tribunal staff members. The Tribunal has public access contact arrangements including email
addresses and telephone numbers to ensure the efficient and responsive handling of public
contacts. The release of direct telephone numbers and email addresses of individual staff
members may result in public contact being made through channels that are not consistently
monitored, causing delays in responses. Owing to the timeframes applicable to certain Tribunal
cases, this could result in hardship to members of the public and have a substantial adverse
effect on the Tribunal’s capacity to efficiently deliver its services if contacts do not reach the
officers responsible for handling them. For this reason, I find that the information is conditional y
exempt under section 47E(d).
Public interest – Section 11A(5) of the FOI Act
As the information is conditional y exempt, I have considered whether access to the information
would, on balance, be contrary to the public interest having regard to the FOI Guidelines. While
a relevant public interest factor which favours disclosure is the promotion of the objects of the
FOI Act, through facilitating and promoting public access to information held by Government,
release of the information does not add to the public scrutiny of government functions. A
relevant public interest factor against disclosure is that use of the information could critical y
delay the access of members of the public to the services of the Tribunal. On balance, I
consider that the benefit of efficient handling of public contact by the Tribunal must be given
greater weight. I therefore find that disclosure of the information would be contrary to the public
interest under section 11A(5) of the FOI Act.
Section 47F – personal privacy
Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure
would involve the unreasonable disclosure of personal information about any person. The FOI
Act shares the same definition of ‘personal information’ as the Privacy Act 1988, which
regulates the handling of personal information about individuals (section 4(1) of the FOI Act;
section 6 of the Privacy Act).
Personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable. This may include a person’s name, address,
telephone number, date of birth, medical records, bank account details, taxation information
and signatures [FOI Guidelines at 6.124-6.125].
I have reviewed the email chain within scope of your request and have determined that within
the chain is sensitive and personal information of an unrelated individual. I have determined
that information about this individual is outside the scope of your request as it does not (a)
refer to Deputy President Clare Thompson’s use of social media or her posts on social media
platforms and (b) does not relate to the types of cases and jurisdictional areas within which
she would or would not be assigned cases.
I find that disclosure of this personal information would be unreasonable because this
information is that of other persons. The Tribunal has obligations to maintain the confidentiality
of this information and because the information is not wel - known or readily available from
publicly accessible sources. The individual[s] who own this information would have a
reasonable expectation that their right to privacy be respected and that their personal
information is not disseminated to other parties. Therefore, I find that the information is
conditional y exempt under section 47F of the FOI Act.
Public interest – Section 11A(5) of the FOI Act
Having considered the relevance of the public interest factors, including those in section 11B
and the guidelines issued by the Information Commissioner, I find that disclosure of this
information would, on balance, be contrary to the public interest because it is information of a
kind which a person would reasonably wish to have withheld.
Whilst disclosure of information promotes the objects of the FOI Act through facilitating public
access to information held by government agencies, this would not include information which
could reasonably be expected to prejudice the protection of the individual’s right to privacy. On
balance, I consider that the benefit of protecting the individual’s right to privacy must be given
greater weight than any factor for disclosure. Therefore, I find that disclosure of personal
information would be contrary to the public interest under section 11A(5) of the FOI Act.
Section 24A – Access to documents refused
Access to part (b) of the request is refused under section 24A of the FOI Act. Section 24A
provides that, after al reasonable steps have been taken to find the documents, access to
documents may be refused if the documents do not exist or cannot be found.
In making my decision I have consulted with the President’s Chambers and Deputy President
Clare Thompson. I am satisfied that al reasonable steps have been taken and I draw the
conclusion that this document does not exist and cannot be produced under section 17 of the
FOI Act. I refuse access to this part of the request under section 24A of the FOI Act.
As permitted under section 22 of the FOI Act, redactions to the documents have been made
and edited copies have been provided. I have removed any irrelevant or exempt material from
the released document.
Deferred access to the document
The Administrative Review Tribunal (ART) has prepared a response to the Senate estimates
hearing held in late November 2024 in relation to the tweets taken on notice. While the Tribunal
has prepared its response to the notice, this has yet to be tabled to the Senate. As such, I have
had to consider whether to release the document at this stage or defer access to it until the
document has been tabled. I have given careful consideration to section 21(1)(c) of the FOI
Act and the public interest favouring disclosure of the document. Section 21(1)(c) of the FOI
Act states that where an agency decides to grant access to a document, access to the
document may be deferred where the premature release of the document would be contrary
to the public interest until an event occurs or the period of time expires after which the release
of the document would not be contrary to the public interest. In this circumstance, I consider
that it would be against the public interest to release the document because it is yet to be
tabled before the Senate. To release the document prior to this event would undermine the
Tribunal’s response to the question taken on notice and would undermine the functions of the
Senate and the ministers and agencies responding to such notices. Accordingly, I have
decided not to give access to the document until after the tabling of the document to the Senate
and its publication to the questions on notice database.
Your review rights
Information about how you can apply for a review of this decision or complain about how we
have dealt with this matter is set out in the attached fact sheet, FOI 2.
If you have any questions about this decision, please contact me at xxx@xxx.xxx.xx.
Yours sincerely,
April W
Authorised FOI Officer (APS 6)
Attachments
FOI 2 – Information about reviews and complaints under the Freedom of Information Act
Level 6, 83 Clarence Street
T 1800 228 333
Sydney NSW 2000
E xxx@xxx.xxx.xx
www.art.gov.au
GPO Box 9955 Sydney NSW 2001
Information about reviews and complaints under the
Freedom of Information Act
What should I do prior to applying for internal review or contacting the Office of
the Australian Information Commissioner?
Before you apply for an internal review or contact the Office of the Australian Information
Commissioner, we recommend that you telephone the officer who made the FOI decision. It is
often possible to resolve concerns or answer your questions using this approach and, if not,
the officer wil be able to assist you in applying for review.
How do I apply for internal review to the AAT?
You can apply to us for an internal review of the FOI decision. The application for internal
review must be made within 30 days or such further period as we al ow, after the day the
decision is notified to you. To apply for an internal review you must do so in writing. You may
also wish to explain why you are not satisfied with the decision. A different and more senior
officer authorised under the Freedom of Information Act 1982 (the FOI Act) wil conduct the
internal review and make a new decision within 30 days after receipt of your application.
If you have already applied for internal review and want to seek a further review of that
decision, you wil need to apply to the Australian Information Commissioner.
How do I apply for review to the Australian Information Commissioner?
You may also apply directly to the Australian Information Commissioner for review of the FOI
decision. The application for review must be made within 60 days after the day notice of the
decision was given. An application for review must be in writing, include details of how notices
in relation to the review are to be sent to you and include a copy of the decision. You may also
wish to explain why you are not satisfied with the decision. An online application form is
available on the Office of the Australian Information Commissioner’s website found here:
Information Commissioner Review Application form.
What if I want to make a complaint about the handling of a Freedom of
Information request?
If you have a complaint about the way in which we have processed your request for access
under the FOI Act you can ask the Australian Information Commissioner to investigate. An
online complaint form is available on the Office of the Australian Information Commissioner’s
website, found here FOI Complaint Form.
Where can I find further information or contact details for the Office of the
Australian Information Commissioner?
Further information is available on the Office of the Australian Information Commissioner’s
website at www.oaic.gov.au and you can contact the office on 1300 363 992 or by email at
xxxxxxxxx@xxxx.xxx.xx..
FOI 2 (April 2024)
