Documents relating to the APS Code of Conduct
Dear Australian Building and Construction Commission,
In a Notice on completion under s 86 of the FOI Act provided to the ABCC by OAIC the following paragraph appears:
“ In response to this complaint, the ABCC submitted:
a. The ABCC initially identified two documents that it considered came within the scope of the request. The documents contained the personal information of a number of individuals. As a consequence, the ABCC determined it would consult with those persons pursuant to s 27A of the Freedom of Information Act 1982 (Cth) (FOI Act). “
Under FOI I seek access to the two documents referred to in the paragraph above. i.e The ABCC initially identified two documents that it considered came within the scope of the request.
PS: Further info on s86 can be obtained here
https://oaic.gov.au/assets/about-us/acce...
https://www.oaic.gov.au/__data/assets/pd...
Yours faithfully,
JS
OFFICIAL
Dear JS
We refer to your email dated 1 March 2022 to the Australian Building and
Construction Commission (ABCC) in which you sought access to documents
under the Freedom of Information Act 1982 (Cth) (FOI Act) (the FOI
Request).
We confirm receipt of the FOI Request pursuant to subsection 15(5) of the
FOI Act.
We note that section 15 of the FOI Act sets out applicable timeframes for
the processing of requests made under the FOI Act.
Should you have any questions regarding the FOI Request, please contact us
by reply email.
Regards
FOI Section Australian Building and Construction Commission
Email: [1][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [2]1800 003 338 | Web: [3]abcc.gov.au
[4]Logo
OFFICIAL
Dear JS
We refer to your email dated 1 March 2022 to the Australian Building and
Construction Commission (ABCC) seeking access to the following documents
under the Freedom of Information Act 1982 (Cth) (FOI Act):
“In a Notice on completion under s 86 of the FOI Act provided to the ABCC
by OAIC the following paragraph appears:
“ In response to this complaint, the ABCC submitted:
a. The ABCC initially identified two documents that it considered came
within the scope of the request. The documents contained the personal
information of a number of individuals. As a consequence, the ABCC
determined it would consult with those persons pursuant to s 27A of the
Freedom of Information Act 1982 (Cth) (FOI Act). “
Under FOI I seek access to the two documents referred to in the paragraph
above. i.e The ABCC initially identified two documents that it considered
came within the scope of the request.”
The documents you seek access to contain personal information of a number
of third parties.
Section 27A of the FOI Act requires a decision maker to consult third
parties where it appears that the persons might reasonably wish to make a
contention that the documents are conditionally exempt under s 47F on the
basis that disclosure would involve the unreasonable disclosure of their
personal information and should be exempt as access would, on balance, be
contrary to the public interest in accordance with s 11A(5) of the FOI
Act.
I have formed the view that the third parties might reasonably wish to
make contentions in accordance with s 27A of the FOI Act.
As I have determined that a consultation requirement applies, the time to
provide you with a decision on your request is extended by 30 days
pursuant to s 15(6) of the FOI Act.
Accordingly, a decision on your request is due on 2 May 2022.
Regards
FOI Section Australian Building and Construction Commission
Email: [1][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [2]1800 003 338 | Web: [3]abcc.gov.au
[4]Logo
From: ABCC - FOI <[email address]>
Sent: Friday, 4 March 2022 7:14 AM
To: JS <[FOI #8535 email]>
Subject: RE: Freedom of Information request - Documents relating to the
APS Code of Conduct [SEC=OFFICIAL]
OFFICIAL
Dear JS
We refer to your email dated 1 March 2022 to the Australian Building and
Construction Commission (ABCC) in which you sought access to documents
under the Freedom of Information Act 1982 (Cth) (FOI Act) (the FOI
Request).
We confirm receipt of the FOI Request pursuant to subsection 15(5) of the
FOI Act.
We note that section 15 of the FOI Act sets out applicable timeframes for
the processing of requests made under the FOI Act.
Should you have any questions regarding the FOI Request, please contact us
by reply email.
Regards
FOI Section Australian Building and Construction Commission
Email: [5][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [6]1800 003 338 | Web: [7]abcc.gov.au
[8]Logo
OFFICIAL: Sensitive
Dear JS,
Please see attached decision.
Regards,
FOI Section Australian Building and Construction Commission
Email: [1][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [2]1800 003 338 | Web: [3]abcc.gov.au
[4]Logo
OFFICIAL: Sensitive
From: ABCC - FOI <[email address]>
Sent: Friday, 18 March 2022 3:08 PM
To: JS <[FOI #8535 email]>
Subject: RE: Freedom of Information request - Documents relating to the
APS Code of Conduct [SEC=OFFICIAL]
OFFICIAL
Dear JS
We refer to your email dated 1 March 2022 to the Australian Building and
Construction Commission (ABCC) seeking access to the following documents
under the Freedom of Information Act 1982 (Cth) (FOI Act):
“In a Notice on completion under s 86 of the FOI Act provided to the ABCC
by OAIC the following paragraph appears:
“ In response to this complaint, the ABCC submitted:
a. The ABCC initially identified two documents that it considered came
within the scope of the request. The documents contained the personal
information of a number of individuals. As a consequence, the ABCC
determined it would consult with those persons pursuant to s 27A of the
Freedom of Information Act 1982 (Cth) (FOI Act). “
Under FOI I seek access to the two documents referred to in the paragraph
above. i.e The ABCC initially identified two documents that it considered
came within the scope of the request.”
The documents you seek access to contain personal information of a number
of third parties.
Section 27A of the FOI Act requires a decision maker to consult third
parties where it appears that the persons might reasonably wish to make a
contention that the documents are conditionally exempt under s 47F on the
basis that disclosure would involve the unreasonable disclosure of their
personal information and should be exempt as access would, on balance, be
contrary to the public interest in accordance with s 11A(5) of the FOI
Act.
I have formed the view that the third parties might reasonably wish to
make contentions in accordance with s 27A of the FOI Act.
As I have determined that a consultation requirement applies, the time to
provide you with a decision on your request is extended by 30 days
pursuant to s 15(6) of the FOI Act.
Accordingly, a decision on your request is due on 2 May 2022.
Regards
FOI Section Australian Building and Construction Commission
Email: [5][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [6]1800 003 338 | Web: [7]abcc.gov.au
[8]Logo
From: ABCC - FOI <[9][email address]>
Sent: Friday, 4 March 2022 7:14 AM
To: JS <[10][FOI #8535 email]>
Subject: RE: Freedom of Information request - Documents relating to the
APS Code of Conduct [SEC=OFFICIAL]
OFFICIAL
Dear JS
We refer to your email dated 1 March 2022 to the Australian Building and
Construction Commission (ABCC) in which you sought access to documents
under the Freedom of Information Act 1982 (Cth) (FOI Act) (the FOI
Request).
We confirm receipt of the FOI Request pursuant to subsection 15(5) of the
FOI Act.
We note that section 15 of the FOI Act sets out applicable timeframes for
the processing of requests made under the FOI Act.
Should you have any questions regarding the FOI Request, please contact us
by reply email.
Regards
FOI Section Australian Building and Construction Commission
Email: [11][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [12]1800 003 338 | Web: [13]abcc.gov.au
[14]Logo
Dear ABCC - FOI,
A brief recap:
The FOI application dated 7 Oct 2017 read:
I seek access under FOI to documents in the possession of the Agency relating to any assessment or consideration - conducted in the period 1 December 2013 to 12 September 2017 – that the behaviour of the Director of the Fair Work Building Industry Inspectorate involved a potential breach of the Australian Public Service Code of Conduct.
The ABCC extended the time period to respond by 30 days to enable the ABCC consult with third parties. On or about the 60th day the ABCC decided that it held no documents within scope.
See full details https://www.righttoknow.org.au/request/e...
The OAIC reviewed the matter. The Notice on completion under s 86 of the FOI Act provided to the ABCC by OAIC is available here (Page 49 to 62 (Doc 5)). https://www.oaic.gov.au/__data/assets/pd...
Flowing from that review the current FOI application read:
In response to this complaint, the ABCC submitted:
a. The ABCC initially identified two documents that it considered came within the scope of the request. The documents contained the personal information of a number of individuals. As a consequence, the ABCC determined it would consult with those persons pursuant to s 27A of the Freedom of Information Act 1982 (Cth) (FOI Act). “
An authorised officer has now decided that the two documents are exempt. Section 45 exempts documents containing material obtained in confidence, where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.
The ABCC decision indicates that the ABCC did not properly assess the two documents within scope of the 2017 FOI Application. Had the ABCC properly considered the two documents the matter could have been finished within 30 days of the application by virtue of section 45. There would have been no need for consultation with third parties and no necessity for the OAIC and ABCC to expend further resources as both Agencies have.
Thank you for your decision.
Yours sincerely,
JS
OFFICIAL: Sensitive
Dear JS
We refer to your email of 23 May 2022.
There are a number of assertions you make in your email that are not
correct.
First, the 2 May 2022 decision in relation to the 1 March 2022 FOI request
in no way indicates that the two documents described in the 2017 decision
were not properly assessed at the time of the 2017 decision.
In the OAIC’s s86 notice on completion, the OAIC referred to two documents
the ABCC had initially identified as potentially within scope of your 2017
request and requiring third party consultation, which were later found by
the decision maker not to be within scope. The OAIC concluded it was open
to the ABCC to extend time and to consult a third party even where
subsequent consideration of the documents found the documents were outside
scope. Your assertion that the ABCC did not properly assess the two
documents at the time of the 2017 request is not correct.
Second, the 2 May 2022 decision does not state, or indicate, that the two
documents found to be within the scope of 2022 request were within the
scope of the 2017 request. The two requests are different and had a
different scope. The two documents were relevant to the 2022 request
only, noting that you specifically sought access to the two documents that
were referred to in OAIC’s s86 notice on completion.
Your assertion that there has been waste of the ABCC's and OAIC's
resources is misplaced and is rejected.
Regards
FOI Section Australian Building and Construction Commission
Email: [1][email address]
Postal address: GPO Box 9927, Melbourne VIC 3001
Hotline: [2]1800 003 338 | Web: [3]abcc.gov.au
[4]Logo
Dear ABCC - FOI,
Thank you for your email. My observations related to the two documents found to be exempt.
in 2017 the ABCC received a request for access. The ABCC identified two documents within scope.
At that point in 2017 (within the 30 day period) it seems the ABCC could have decided:
Section 45 – breach of confidence
The information in the two documents was exchanged on the understanding of confidentiality. The information is specifically identified. The information has not been shared more broadly within the ABCC and remains confidential. I am satisfied from my consideration of the content of the documents that disclosure would result in detriment to the individuals concerned.
Accordingly, I find the documents are exempt on the basis that disclosure would found an action, by a person for breach of confidence.
Yours sincerely,
JS