Our reference: FOIREQ17/00051

 

Dear Sir/Madam

 

Your Freedom of Information request

 

I refer to your request for access to documents under the Freedom of
Information Act 1982 (Cth) (the FOI Act), received by the Office of the
Australian Information Commissioner (OAIC) on 2 August 2017.

 

Specifically you requested:

 

… documents which detail the precise salary paid to each of the Office of
the Australian Information Commissioner’s (OAIC’s) SES officers in the
following financial years - FY2014/15, FY 2015/16 and FY2016/17.

 

You limited your request to the salary paid to officers currently employed
by the OAIC, who at the time of your request were categorised as SES
officers. You also agreed that any information in the documents except for
the relevant SES officer’s name, information that discloses their precise
salary for the relevant financial year, and information that identifies
the document, can be deleted.

 

Timeframes for dealing with your request

 

Section 15 of the FOI Act requires this office to make a decision on your
request no later than 30 days after the day we receive it.

 

We received your request on 2 August 2017 and therefore must made a
decision no later than Friday 1 September 2017.

 

Section 15(6) of the FOI Act allows us a further 30 days if we need to
consult third parties about certain information, such as business
documents or documents affecting their personal privacy. We will advise
you if this is necessary.

 

Disclosure Log

 

Information released under the FOI Act may later be published online on
our disclosure log, subject to certain exceptions (for example, personal
information will not be published where this would be unreasonable.) The
decision whether to publish documents on the disclosure log rests with the
OAIC. Further information about disclosure log decision making can be
found in [1]Parts 14.8-14.11 of the FOI Guidelines.

 

If you would like to discuss this matter please contact me on (02) 9284
9802 during business hours or by email at [2][email address].

 

Regards

 

 

Raewyn Harlock | Director (A/g) | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [3]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [4][email address]

 

Protecting information rights – advancing information policy

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Dear Sir/Madam

Freedom of information request no. FOIREQ17/00051

I refer to your request, made under the Freedom of Information Act 1982
(FOI Act) on 2 August 2017, seeking access to:

 

… documents which detail the precise salary paid to each of the Office of
the Australian Information Commissioner’s (OAIC’s) SES officers in the
following financial years - FY2014/15, FY 2015/16 and FY2016/17.

 

Because your request is for documents containing personal information, I
am required to consult the affected individuals under 27A of the FOI Act
before making a decision about release of the documents.

 

For this reason, the period for processing your request has been extended
by 30 days to allow time to consult (see s 15(6) of the FOI Act). The
processing period for your request will now end on Tuesday 3 October 2017
(Monday 2 October is a public holiday).

 

The consultation provision in s 27A applies when we believe a person may
wish to contend that the requested documents are exempt for reasons of
personal privacy.

 

We will take into account any comments we receive but the final decision
about whether to grant you access to the documents you requested rests
with the delegated decision maker.

 

Regards

 

 

Raewyn Harlock | Director (A/g) | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [2][email address]

 

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

 

 

 

 

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Dear Anonymous

 

Can you please call me on (02) 9284 9802 to discuss your FOI request?

 

We recently published information about the OAIC’s Executive remuneration
on our website -
[1]https://www.oaic.gov.au/about-us/corpora....

 

I would like to discuss the extent to which this satisfies your FOI
request.

 

A response by cob Thursday 28 September 2017 would be very much
appreciated.

 

Regards

 

 

Raewyn Harlock | Assistant Director | FOI Dispute Resolution

Office of the Australian Information Commissioner

GPO Box 5218 SYDNEY NSW 2001 | [2]www.oaic.gov.au

Phone:  +61 2 9284 9802 | Email: [3][email address]

 

[4]Right to Know Day email signature

 

-----Original Message-----
From: Name withheld [mailto:[FOI #3762 email]]
Sent: Wednesday, 2 August 2017 8:19 AM
To: Enquiries <[email address]>
Subject: FOIREQ17/00051 Freedom of Information request - Precise salaries
paid to the OAIC’s SES officers for FY14/15, FY15/16 and FY16/17

 

Dear Office of the Australian Information Commissioner,

 

The following is an application for the purposes of 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 service staff ('SES')) also extends to SES public
servants.

 

Accordingly, I request documents which detail the precise salary paid to
each of the Office of the Australian Information Commissioner’s (OAIC’s)
SES officers in the following financial years - FY2014/15, FY 2015/16 and
FY2016/17. That information might be included in the group
certificates/end-of-year PAYG payments summaries issued by the OAIC to its
SES officers, or common law contracts relating to the employment of the
relevant SES officers or, any relevant determinations made under
subsection 24(1) or 24(3) of the Public Service Act 1999 in respect of
those relevant SES officers or, perhaps a document prepared pursuant to
s.17 of the FOI Act. Such documents 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 all information
contained in any relevant document with the exception of the following:

-              information that discloses the relevant SES officer’s name;

-              information that discloses that officers precise salary for
the relevant financial year; and

-              information that identifies what the document is (eg. a
group certificate/payment summary, an employment contract or a s.23(1)
Determination) and the period that it covers.

 

I am willing to further narrow the scope of my request by limiting it to
officers employed by the OAIC who, at the time of my application, were
categorised as SES officers, meaning that:

- OAIC staff who were once SES officers at the OAIC, but weren’t
categorised as such at the time of this application; and

- the documents the subject of my request that pertain to SES officers who
are no longer employed by the OAIC;

are discounted from the scope of my application.

 

I make the following submissions in support of my application.

 

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 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."

 

If this request is refused by the OAIC, that decision will:

- overturn the above-mentioned authorities that establish the wide and
prevailing public interest in knowing precisely how much public funding
senior public servants receive for performing public duties; and

- represent a significant retrograde step in respect of the transparency
and accountability of the executive arm of the government in Australia.

 

I make the following further submissions in support of my application.

 

There are approximately 155,000 Commonwealth public servants, most of
whom, even after three years of negotiation, are currently embroiled in
what a Senate Committee tasked with inquiring into the impact of the
Government's workplace bargaining policy described in its report
([5]https://apac01.safelinks.protection.outl...)
as the most divisive and least productive bargaining approach in the
Australian public service in 30 years. It is in the wide public interest
of all rank and file Commonwealth public servants and their families who
have had their standards of living reduced over the last 3 years under the
Government’s industrial relations policy for public servants, to know
whether the Government intends that just rank and file public servants
deserve to have their living standards reduced, or whether that policy
also extends to highly paid SES public servants (that is, whether the wage
restraint imposed by the Government is mutually shared by rank and file
staff as well as APS senior executives).

 

An additional wide public interest aspect that relates to my application
is 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.184-185). 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 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 of rank and file (non-SES) public servants. Senior
management at the OAIC 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 considerable light on that issue.

 

It is immutably in the public interest of APS rank and file employees and
their families, 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.

 

Given that the Government’s treatment of its own staff can be considered a
weathervane as to how the Government feels employers across the broader
Australian workforce should treat their staff, the documents the subject
of my request will offer the Australian public a valuable insight into the
Government’s views concerning what it considers to be the proper
distribution of wealth amongst Australian society. Such an insight will
augment the public’s knowledge of the Government’s existing policies
concerning the distribution of wealth among Australian society – for
example, the reduction in the level of penalty rates paid to some of the
lowest paid members of the Australian workforce, the reduction of taxation
rates for the highest paid members of Australian society, and the
reduction of company taxation rates (the financial benefit of which will
flow to senior executives and the recipients of dividends/the owners of
capital and will otherwise increase inequality – see:
[6]https://apac01.safelinks.protection.outl...
).

 

Such information is of particular public interest in the context of an
Australian society increasingly characterized by widening inequality and a
hollowing out of the middle class (see here:
[7]https://apac01.safelinks.protection.outl...
[8]https://apac01.safelinks.protection.outl...
[9]https://apac01.safelinks.protection.outl...
and
[10]https://apac01.safelinks.protection.outl...
).

 

While not solely determinative as to the existence of a wide public
interest in a particular matter, newspaper coverage of certain issues of
public interest can be a gauge as to matters in the public interest. To
that end, public sector remuneration is a matter routinely covered by
major Australian newspapers. Here are some recent examples:

[11]https://apac01.safelinks.protection.outl...
- which reveals senior executive remuneration at the CSIRO has increased
by 30% over the past three years, while rank and file CSIRO public
servants have had their salaries frozen;

 

[12]https://apac01.safelinks.protection.outl...
- an article demonising rank and file public servants;

 

[13]https://apac01.safelinks.protection.outl...
- an article which criticises the pay and conditions of public servants;

 

[14]https://apac01.safelinks.protection.outl...
- an article concerning the Australian Public Service Commission’s
decision not to publicly disclose the remuneration level of its senior
executives;

 

[15]https://apac01.safelinks.protection.outl...
- an article concerning the Government’s response to public anger
resulting from Australia Post’s initial refusal to disclose the $5.6
million salary of its chief executive and noting that the Government
recently wrote to government entities demanding they reveal their
executive remuneration packages on the back of comments from Senator James
Paterson, who said it was "not appropriate" for the salaries of government
executives to be shielded from public scrutiny and that taxpayers have a
right to such information.

 

In support of my application I now turn to address some of the spurious
reasoning put forward by a number of Government agencies who have refused
requests of a similar nature to this one.

 

Spurious claim #1 - that information concerning SES salaries is
confidential and the relevant individuals would have had no expectation
that information would be open to public scrutiny

 

The above claim is misguided because:

•             The precise remuneration paid to statutory officer holders,
agency heads and Departmental secretaries is publicly set out in
determinations made by the Remuneration Tribunal. Rank and file APS staff
have their precise remuneration levels disclosed publicly by way of
enterprise agreements published on the websites of each relevant
Department/Agency. Yet SES staff seem to consider that their remuneration
levels are immune from the level of accountability and transparency
apparently only reserved for agency heads/departmental secretaries and
rank and file APS staff.  It cannot be the case that SES public servants
are a special, protected type of public servant subject to a lesser form
of public accountability and transparency than that apportioned to agency
heads, departmental secretaries and rank and file APS staff.

 

•             Every public servant should know that they are accountable
to the public for every dollar of public funding spent on the performance
of public duties. Being accountable for such expenditure is an obligation
imposed on APS employees under the Public Service Act 1999. It is scarcely
credible to suggest that SES staff would have had no expectation that
information about their remuneration levels would be open to public
scrutiny (particularly given that rank and file and departmental
secretary/agency head remuneration levels are subject to such scrutiny)

 

•             My application lists a range of authorities that establish
the wide and countervailing public interest in knowing the precise
remuneration paid to senior public servants for performing public duties.
My application specifically mentions the matter of Asher and Department of
State and Regional Development [2002] VCAT 609, in which the presiding
Deputy President stated that “[t]he 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.” I
note that no legislation exists that guarantee the confidentiality of APSC
SES remuneration.

 

Spurious claim #2 - that the disclosure of SES salaries would lead to
greater expenditure on SES salaries

 

•             Certain agencies have claimed that the disclosure of SES
salaries would lead to increased public expenditure on SES salaries.
Despite that paragraph [6.101] of the FOI Guidelines provides that in
order for the conditional exemption at ss.47E(a)-(d) to apply, ‘[t]here
must be more that merely an assumption or allegation that damage may occur
if the document were to be released’ no evidence whatsoever has been
provided by any agency to support the above mentioned assertion. Spurious
claims that the disclosure of the salaries of senior public servants would
lead to a wages blow out were also raised in the authorities referred to
above – in those cases, such claims were rightly dismissed as being
without basis.

 

•             Research conducted by the Australian Public Service
Commission and available here:
[16]https://apac01.safelinks.protection.outl...
indicates that over the past 10 years the salaries of rank and file public
servants has increased by 32%-36% (in line with inflation). The salaries
of SES officers, on the other hand, have increased at a much greater rate
(44%-64%) – in some cases, SES salaries have increased at double the rate
of rank and file APS staff. The evidence suggests, therefore, that the SES
invoked practice of withholding SES remuneration from public
accountability is, unsurprisingly, resulting in taxpayers paying senior
executive public servants far more than would be the case if those
salaries were precisely disclosed (as is the case for agency heads,
departmental secretaries and rank and file workers).

 

Spurious claim #3 - that compliance with Rule 27 of the Public Governance,
Performance and Accountability (Financial Reporting) Rule 2015 (which does
not require SES remuneration to be specifically reported) and particular
remuneration policies means that the specific remuneration of SES staff
need not be disclosed pursuant to an application made under the FOI Act.

 

Certain agencies have argued that because those agencies:

 

•             comply with Rule 27 of the Public Governance, Performance
and Accountability (Financial Reporting) Rule 2015 (which does not require
SES remuneration to be specifically reported) and administrative policies
concerning executive remuneration; and

 

•             publish some broad, imprecise and generic information about
SES remuneration in their annual reports and on their websites;

that they are sufficiently accountable in respect of the remuneration of
their SES. However, it cannot be that compliance with:

 

•             a legislative instrument made by a single politician (noting
that the recently amended/remade Public Governance, Performance and
Accountability (Financial Reporting) Rule 2015 requires significantly less
detail on SES remuneration to be publicly disclosed than was previously
the case); and

 

•             certain administrative policies concerning budget processes
and SES remuneration,

constitutes a proxy for compliance with the FOI Act, being legislation
made by the Australian Parliament as a whole (rather than a single
Minister). Nor does compliance with the above-mentioned rules and policies
abrogate an agency’s obligation, or acquit an agency from its obligation,
to comply with the requirements of the FOI Act. Further, compliance with
the above-mentioned rule and policies in no way diminishes the established
wide and countervailing public interest in knowing precisely the quantum
of tax payer funds paid to senior public servants for performing duties on
behalf of the public.

 

Further, the imprecise, broad and generic information that agencies
(including the OAIC) publish about the remuneration of their SES officers
is presented so broadly that it is incapable of any detailed or sensible
analysis – particularly when having regard to my request, the purpose for
which is to determine the precise level of salary increases given to SES
officers while rank and file APS staff have had their living standards
reduced.

 

Having regard to the matters set out at subsection 11A(3) of the FOI Act,
I submit that access be provided to the documents the subject of my
application because granting access would:

•             promote the objects of the FOI Act including by “increasing
scrutiny, discussion, comment and review of the Government’s activities”,
and by “increas[ing] recognition that information held by the Government
is to be managed for public purposes, and is a national resource”;

 

•             inform debate on a matter of public importance being:

  o   the level of public funds directed towards senior public servants in
respect of their    performance of public duties;

  o   whether the Government considers rank and file APS employees should
have their standards of living reduced while SES employees standards of
living are maintained or improved; and

  o   whether the Government’s preferred distribution of wealth in
Australia society is such that rank and file employees are overpaid and
should have their standards of living reduced, while senior executives (or
their equivalents) are remunerated and should have their living standards
improved; and

 

•             promote effective oversight of public expenditure because
currently, while rank and file APS staff and agency head/departmental
ecretary remuneration levels are precisely and publicly disclosed, SES
salaries are not subject to the same level of public scrutiny

 

Thank you.

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

 

-------------------------------------------------------------------

 

Please use this email address for all replies to this request:

[17][FOI #3762 email]

 

Is [18][OAIC request email] the wrong address for Freedom of Information
requests to Office of the Australian Information Commissioner? If so,
please contact us using this form:

[19]https://apac01.safelinks.protection.outl...

 

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:

[20]https://apac01.safelinks.protection.outl...

 

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

 

 

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Dear Anonymous

The delegate’s FOI decision and the requested document are attached to
this email.

Regards

Enquiries Officer

Office of the Australian Information Commissioner

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