Dear Department of Communications and the Arts,

This request is an application for the purposes of the Freedom of Information Act 1982 (the FOI Act).

I am conducting research, across a range of Government agencies, into the Government's enterprise bargaining framework for the Commonwealth Public Service. Specifically, in the interests of equity and transparency, whether the Government's policy to reduce the living standards of rank and file public servants (that is, public servants who are not considered senior executive staff ('SES')) public servants also extends to Commonwealth SES staff.

The total remuneration paid to senior public officers is a matter of public concern and public debate. The public is indisputably entitled to know precisely how much of its money is received in salary and entitlements by senior public servants for performing functions on behalf of the public [see, for example, Asher and Department of State and Regional Development [2002] VCAT 609; Re Stewart and Department of Transport (1993) 1 QAR 227, Ricketson and Royal Women's Hospital (1989) 4 VAR 10 and Re Forbes and Department of the Premier and Cabinet (1993) 6 VAR 53].

I request documents which detail the precise remuneration paid to each of the Department's SES officers in the following financial years - FY2013/14, FY 2014/15 and FY2015/16. The group certificates/end-of-year PAYG payments summaries issued by the Department, to each of its SES staff in those years, can be quickly and easily identified and retrieved, and will efficiently and accurately provide the information the subject of my request.

I am willing to agree to the decision maker redacting information relating to the tax file numbers and home addresses of the relevant SES officers that may be contained in the relevant documents. I note, however, that the names position titles of the Department's SES officers are in the public domain, and that, to the extent that the relevant SES officers' names are included in the relevant documents, that is a direct result of their public duties and responsibilities.

In processing my request, I draw the decision maker's attention to the potential application of paras 11B(3)(c) and 11B(4)(a) through (d) of the FOI Act. I also remind the decision maker of the application of the APS Code of Conduct in his or her processing of my request, including the obligation to behave honestly and with integrity.

Yours faithfully,

[name not required to be provided under the FOI Act]

Thank you for the opportunity to provide comment in respect of your intention to refuse access to the documents the subject of my application. My submissions are as follows.

[1] Leaving to one side, for the moment, the issue of whether your decision has been properly made, I think it relevant to reiterate that the precise remuneration paid to public servants for performing public duties is a matter of wide and countervailing public interest. That is established by authority, including that set out in Re Ricketson and Royal Women’s Hospital (1989) 4 VAR 10; Re Forbes and Department of Premier & Cabinet (1993) 6 VAR 53; Re Stewart and Department of Transport (1993) 1 QAR 227; Re Thwaites and Metropolitan Ambulance Service (unreported, 13 June 1997); Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105; Re Stewart and Department of Transport (1993) 1 QAR 227; Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 and Asher and Department of State and Regional Development [2002] VCAT 609.

In Re Forbes, Deputy President Ball said (at page 60):

"Mr Baxter is a senior public servant performing very significant public functions and being paid wholly from money provided by the public. The public is entitled to know precisely how much of its money is received in salary and entitlements by senior public servants for performing functions on behalf of the public."

In Re Stewart, at pp.257-258, the Information Commissioner observed:

"It has been held […] that there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office. […] see [Re Ricketson and Royal Women's Hospital (1989) 4 VAR 10, and Re Forbes and Department of the Premier and Cabinet (1993) 6 VAR 53]."

In Re National Tertiary Education Industry Union, the Commissioner observed (at [68]):

"I recognise that there is a public interest in the public receiving value for its money spent on public education, especially in the present climate of financial restrictions. I agree with the Tribunal in Re Ricketson and Re Forbes that the public is entitled to know how much of its money is received in salary and entitlements by senior public officers for performing functions on behalf of the public and that such information is the subject of legitimate public interest and discussion."

In Asher, Deputy President McNamara stated:

"The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in this matter, even although it is one that it is clearly a matter relative to the personal affairs to the officers themselves. As Mr Edwards notes, his actions as Secretary must ultimately be regulated by the law which must take precedence over any government policy, or one might say any private assurance that he might give to a particular officer. The existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation."

[2] There is an additional wide public interest aspect that relates to my application, being that employment relations (including the regulation of pay and conditions) in the public sector, are widely considered to serve as a role model for industrial relations in the private sector (see, for example, Creighton B and Forsyth R [Eds.] Rediscovering Collective Bargaining, 2012 at pp.184-18). That is, the way in which a Government treats its staff (public servants) can be considered emblematic of the way in which a Government considers employees across the broader Australian workforce should be treated by their employers. The current Commonwealth Government has an employment relations policy in place (known as the ‘Australian Public Service Bargaining Framework’) which necessarily involves reducing the living standards for rank and file (non-SES) public servants. Senior management at the Department of Communications and the Arts (the ‘Department’) has decided, at its discretion, to adopt and enforce, against its rank and file staff, the Government’s employment relations policy. Part of the purpose of my application is to determine whether the Government’s policy to reduce the living standards of rank and file public servants also extends to SES public servants. The documents the subject of my request will shed some light on that issue. It is immutably in the public interest of not only Departmental employees and employees across the wider public service, but also Australian taxpayers and working Australians more generally, to know whether it is the current Government’s view that rank and file employees who are not categorised as senior executives (or equivalent) are generally overpaid, and should therefore have their living standards reduced by their employers, while senior executives (or their equivalents) are generally underpaid and should have their living standards increased.

[3] Turning to the question of whether the decisions that underlie your intention to refuse my request have been properly made, I refer you to the decision of the Administrative Appeals Tribunal in Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 (Dreyfus). The circumstances of Dreyfus bear considerable similarity to that of my application and the Department’s treatment of it thus far. In Dreyfus it was decided that the Attorney-General’s decision that a practical refusal reason exists because of the work involved in processing a FOI Act request was improperly made.

[4] I note that you have decided that a practical refusal reason exists pursuant to subsection 24AA(1) of the FOI Act. In Dreyfus, Jagot J, at paragraphs [14]-[16] relevantly summarised the operation of section 24AA as follows:

"[…] on receipt of a request for access to documents under the FOI Act, the […] agency must decide by way of a process of hypothetical reasoning (that is, if the request is to be processed) whether the processing of the request […] would substantially and unreasonably divert the resources of the agency from its other operations […], having regard to the matters set out in s 24AA(2). As set out above, s 24AA(2) focuses on the resources that would have to be used, in effect, to process the request.

Because the process of reasoning involves a hypothetical situation the […] agency’s assessment will necessarily be based on estimates about which, I accept, reasonable minds might differ. It is fundamental, however, that the process of estimation reflects the requirements of the FOI Act. If, for example, the resources that would have to be used are estimated on the basis of requirements for consultation when the FOI Act does not require consultation, then the capacity to decide if a practical refusal reason exists would be able to be used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. The same thwarting of the statutory objects and the intention of Parliament would result if, for example, the estimate was based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged.

In the present case neither party suggested that the reference in s 24AA(2) to “without limiting the matters to which the agency or Minister may have regard” enabled an agency or Minister to estimate the resources that would have to be used for the processing of the request by reference to tasks not required by the FOI Act or to criteria not set out in the Act or, for example, to criteria which the provisions of the Act make clear are irrelevant (see ss 11(2), 11B(4) and 24AA(3)). Nor, in my view, would such an approach to s 24AA(2) be legitimate; the risk of undermining the express statutory objects and Parliamentary intention would be too great. The kind of other matters which might be able to be considered under s 24AA(2) are those which, for example, the Guidelines identify, including the resources actually available to the agency or the Minister, whether the documents have otherwise been made publicly available, and the like. As noted, if it were otherwise ss 24 and 24AA would be able to be used to undermine the entire purpose of the FOI Act."

[5] Pursuant to the reasoning of Jagot J set out above, I now turn to questions of: a) whether the FOI Act requires that consultation with any person be undertaken in relation to my request; and b) even if it does, whether your estimate of 2 hours per consultation with at least 30 individuals has been “based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged”.

[6] As far as I can tell, you have determined that section 27A of the FOI Act applies to my request. Section 27A applies in circumstances where, in an agency’s view, the person (or their legal representative) to whom personal information contained in a requested document relates, might reasonably wish to make a contention that the relevant document is conditionally exempt document (under s.47F) and access to the document would, on balance, be contrary to the public interest.

[7] Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about a person. Pursuant to subsection 47F(2), in determining whether the disclosure is unreasonable, the Department must have regard to the extent to which the information is well known (s.47F(2)(a)); whether the person to whom the information relates is known to be associated with the matters dealt with in the document (s.47F(2)(b)); and the availability of the information from publicly accessible sources (s.47F(2)(c)).

[8] Applying paragraphs 47F(2)(a) and (c) together, I note that the information to which I seek access is well known, not least because the Department (among others) has chosen to publish, to the world at large (through its website), information pertaining to the names of its SES officers and their indicative salaries. I note that you contend that the salary of an SES officer of the Department constitutes personal information. A logical consequence of that contention is that the indicative salary rage of a Departmental SES officer is also personal information – personal information that the Department has chosen to publicly disclose, by the inclusion of that information in its annual reports (in recognition of the established wide and countervailing public interest in such information, because it considered that it was not be unreasonable to do so, and also in compliance or otherwise with the obligations imposed on the Department by the operation of Part 1 of Schedule 1 to the Privacy Act 1988).

[9] Applying paragraph 47F(2)(b) of the FOI Act, because information pertaining to the identities of the Department’s SES officers and their indicative salaries is publicly known (including because the Department has chosen to publish that information to the world at large), the information contained in the payment summaries/group certificates is (publicly) known to be associated with the SES officers to whom those summaries/group certificates relate. The information relating to SES public servants included in their annual payment summaries/group certificates is included because that information relates to those public servants’ usual public duties and responsibilities. However, please let me know as soon as possible if taxpayer funded payments have been made to Departmental SES officers in respect of things other than their public duties and responsibilities.

[10] Subsection 11A(5) of the FOI Act provides that access must nevertheless be provided to a document that is conditionally exempt 'unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'. Subsection 11B(3) lists public interest factors that favour access being granted to a conditionally exempt document (which, in the case of my application, relevantly include: promotion of the objects of the FOI Act, informing debate on a matter of public importance (being the Government’s treatment of public servants and the Government’s attitude towards the pay and working conditions of rank and file employees Australia-wide), and the promotion of effective oversight of public expenditure). Subsection 11B(4) lists irrelevant factors that must not be taken into account (I consider all of those factors to be relevant to my application and therefore they should not be taken into account by the Department).

[11] As noted above, and as you have indicated in your letter to me, the Department (among others) has routinely published information which identifies its SES officers by name, as well as their indicative salaries. In taking this course, the Department must have determined that the disclosure of that personal information was a reasonable step to take. The only difference between the information in the documents the subject of my request (noting the narrowed scope of my request discussed below as well as the redaction of certain information from those documents that I have agreed to) is that the information the Department has chosen to publish allows the indicative range of a particular SES officer’s remuneration to be established while the documents the subject of my request allows that SES officer’s remuneration to be precisely established. That being the case, could you please explain your decision that section 27A of the FOI Act (in particular, paragraph 27(1)(b)) applies to the information the subject of my request, despite:

- your knowledge of the wide and countervailing public interest in the information contained in the documents the subject of my request (including that established by the authorities referred to in my application and above),
- that the information is broadly known, not least through its public availability; and
- that the SES officers to which the information relates are known to be associated with the matters dealt with in the information.

Further, could you please provide further explanation of your apparent view that while it’s reasonable for the Department to publicly disclose personal information relating to the names and indicative salary ranges of its SES officers, it may be unreasonable to release the same information (albeit with precise salary information) in response to my request?

[12] Assuming that you have properly applied section 27A of the FOI Act in relation to my request, there remains a question as to whether your estimate of the time taken to process my request pursuant to your decision that a practical refusal reason exists in relation to my request has been ‘based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged’. That is, your estimated 2 hours of consultation per individual appears to be based on an improperly formed assumption that each and every of the ‘at least 30 individuals to be consulted’ would reasonably wish to make a legitimate contention pursuant to paragraph 27A(1)(b). Given your knowledge:

- of the wide and countervailing public interest in the information contained in the documents the subject of my request (including that established by the authorities referred to in my application and above);
- that the information is broadly known, not least through its public availability; and
- that the SES officers to which the information relates are known to be associated with the matters dealt with in the information;

could you please explain your apparent decision that each and every of the ‘at least 30 individuals to be consulted’ would reasonably wish to make a legitimate contention pursuant to paragraph 27A(1)(b)?

[13] Be it because you have improperly applied section 27A of the FOI Act to my request and/or because you have improperly estimated the time taken to process my request, I contend that your decision that a practical refusal reason exists in respect of my application has been wrongly made and, as in Dreyfus, the effect of those decisions is that you have relied on section 24AA ‘to undermine the entire purpose of the FOI Act’. It’s as if you’ve decided upfront, upon receipt of my request, and irrespective of the proper operation and application of the FOI Act, that my request must be refused, and then sought to work backwards to justify that decision after making it.

[14] Notwithstanding that I consider that your decision has been made in error, I am, in good faith, willing to revise the scope of my application. Your decision letter makes numerous references to the inclusion of personal information such as the address details and tax file numbers of SES staff contained in the PAYG pay summary documents/group certificates the subject of my application. Had you had regard to my application, you would have noted that I indicated that I am “willing to agree to the decision maker redacting information relating to the tax file numbers and home addresses of the relevant SES officers that may be contained in the relevant documents”. In addition to this, I am willing to further agree to the decision maker redacting information that may be contained in the documents the subject of my request relating to the middle names of relevant SES staff, as well as the amount of tax withheld. Assuming that tax has been paid in accordance with relevant laws, then I do not consider the release of such information to be in the public interest (at least for the purposes of my particular request). In addition, I am willing to further reduce the scope of my request by limiting it to officers employed by the Department who, at the time of my application, were categorised as SES officers - meaning that the scope of my request has been narrowed such that:

- Departmental staff who were once SES officers at the Department, but weren’t categorised as such at the time of my request; and
- the documents the subject of my request that pertain to SES officers who are no longer employed by the Department;

are discounted from the scope of my application.

Yours sincerely

[name not required to be provided under the FOI Act]

Dear FOI,

Pursuant to subparagraph 29(1)(f)(ii) of the Freedom of Information Act 1982 (the FOI Act) I write to notify the Department of Communications and the Arts (the Department) of my contention that the preliminary charge of $1462.60 imposed by way of the Department’s letter of 29 November 2017 in respect of my request has been wrongly assessed and should be reduced or not imposed.

In support of my contention I refer the Department to the authoritative guidance given by the Information Commissioner (the IC) in 'MZ' and Department of Communications and the Arts (Freedom of information) [2017] AICmr 109 (the IC decision) on this very request (see here: http://www6.austlii.edu.au/cgi-bin/viewd...).

I note that the Department has either failed to consider that decision, or has otherwise disregarded it.

That being the case, the Department should note the following relevant aspects of the IC’s decision on this very request:
• the IC’s emphasis of the importance of the object of the FOI Act set out at subsection 3(4) which states Parliament’s intention ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (at [16]);
• the IC’s statement at paragraph [15] of his decision that ‘ […] if a payroll report or other summary document could be produced that would meet the terms of the request I consider that producing such a document may reasonably serve to somewhat reduce the request processing burden on the Department’
• the IC’s statement at paragraph [24] of his decision that ‘in previous IC review decisions I have generally accepted an estimate between 30 seconds per page and 5 minutes per page as a reasonable estimate of the time required to assess and apply the relevant exemptions to the documents’;
• the IC’s statement at paragraph [26] of his decision that ‘I consider that the consultation and editing processes would be relatively streamlined given the apparent general uniformity between each of the payment summaries and each of the request consultation notices. In this regard, I note that a typical payment summary is a single page document’;
• the IC’s statement at paragraphs [33] – [34] of his decision that:

‘In this IC review, I consider that marking up and editing irrelevant material should not take much more than 1 minute per payment summary. Given that the Department has identified 33 relevant officers and there appears to be a maximum of three payment summaries per officer, I am satisfied that an estimate of 99 minutes, or a little over an hour and a half would be a reasonable estimate of the time required to complete this task.

For these reasons, I am satisfied that a reasonable estimate of the time it will take the Department to fully process the request is 17.5 hours, and not the 40 hours that the Department found.’

I note that the Department’s decision of 29 November 2017 is based on there being 62 relevant documents and that the Information Commissioner’s decision was based on there being 99 relevant documents. Further the Department’s decision of 29 November 2017 indicates that it would take 73.63 hours to process my request (notwithstanding that the Department originally estimated that it would take 40 hours to process 99 pages). I note again, the authoritative and expert advice given by the IC in respect of this very matter at paragraph [34] of his decision:
'[…] I am satisfied that a reasonable estimate of the time it will take the Department to fully process the request is 17.5 hours, and not the 40 hours that the Department found.'

It’s apparent that the officer who made the decision set out in the Department’s letter to me of 29 November 2017 has either failed to consider the IC’s decision on this matter, or has otherwise treated that decision with contempt.

Given the Department has now indicated that there are 62, and not 99, relevant documents, a reasonable estimate of the time it would take the Department to fully process the request will be significantly less than the 17.5 hours authoritatively and expertly determined by the IC.

Thanks.

Dear FOI,

The amount specified in your letter of 19 January 2018 was deposited into the Department's nominated account yesterday. Could you please confirm receipt at your earliest convenience.

Dear FOI,

Thank you for acknowledging receipt of payment.

Please note that I am amenable to the Department providing copies of relevant group certificates or otherwise a payroll report or other summary document with the names of the relevant SES officers redacted but only on the condition that each relevant officer's name be replaced by a single unique identifier such that each relevant SES officer's precise salary can be tracked over the three relevant financial years (eg. SES officer #1, SES officer #2, SES officer #3 etc).

Please also note that my application will need to be processed in accordance with the relevant facts and circumstances at the time of my initial application (over 13 months ago).