Recent Cases: Commonwealth

Plowman and Australian Securities and Investments Commission [2020] AATA 4729 

Ms Plowman (“applicant”) applied to the Australian Securities and Investments Commission (“ASIC”) to access conditionally exempt documents under s 47E(c) Freedom of Information Act (“FOI Act”).  The documents relate to a complaint made by an ASIC employee alleging that the applicant was guilty of bullying and harassment.  Although the complaint was dismissed by ASIC without need for investigation, the applicant was under the belief that she was being investigated and so made an FOI request. 

A reviewable refusal decision was made which was subject of an internal review by ASIC denied the applicant access to eight documents in full and a further eight documents in part. 

The applicant sought to overturn the reviewable decision.

Whether the documents are subject to the public interest question: s 11A

The Administrative Appeals Tribunal (“Tribunal”) found nothing in the documents to suggest disclosure would not be contrary to the public interest.  Note, the public interest test in the FOI Act did not relate to whether or not the applicant was afforded procedural fairness in internal processes, it was about whether it is in the public interest to disclose conditionally exempt documents. 

Conditional Exemption Issue: s 47F

The documents were not disclosed exempt under s 47E(c) FOI Act as they were used by management to assess whether an investigation of the applicant was required (which it was not) and a justifiable concern that their release could decrease rather than increase employee engagement and co-operation in such processes; employees would feel less safe to raise concerns confidentially and have workplace issues addressed.

HELD:

The Information Commissioner’s decision was upheld such that the reviewable decision was affirmed.

Warren; Chief Executive Officer, Services Australia and (Freedom of Information) [2020] AATA 4557

Warren (“applicant”) made a request for access to documents relating to the Services Australia (“Agency”) The request was for documents relating to a programme to match Centrelink data with data from the Australian Taxation Office to detect potential overpayments and recovery of those payments (“Programme”).  Four documents that fell within the scope of the request were identified and the Agency decision denied access to those documents.

On review of the decision by the Information Commissioner (“Commissioner”). The Commissioner decided that the documents were conditionally exempt.  However, the Commissioner was not satisfied that disclosure would be contrary to public interest and set aside the decision of the Department. 

The Agency applied to the Administrative Appeals Tribunal (“Tribunal”) for review of the Commissioner’s decision but only in respect of the names and telephone numbers of all Agency staff, with the exclusion of two staff members. 

Conditionally exemption: s 47F

The Tribunal found that there are circumstances in which s 47F might be relied upon by an agency or minister, these circumstances are not limited to a person’s private life beyond his or her workplace. 

The Tribunal found that disclosure of an individual’s telephone number in their place of employment, is unreasonable unless it has been published on the agency’s website or made public in another way.  The Tribunal took into account evidence of members of the public threatening named officers of the agency whose contact details are publicly available and that once provided access, an applicant may choose to publish those documents.

The Tribunal commented that the identity of members of the executive in the Agency may not be well known in the community but it is general knowledge that an Agency’s Annual Report or on-line entries will show the names of people in executive positions.  While releasing executive names may draw adverse attention in social media, but with membership of executive roles, comes direct responsibility for their areas of responsibility.  The Tribunal decided that those executive officers named in the documents but whom did not have an interest in the issues dealt were conditionally exempt. 

Public interest: 

The Tribunal found that there was clear public interest in the public knowing about the Programme and how the Agency dealt with the risks and issues raised.  However, that public interest was met by the disclosure of the substance of the four documents.  Disclosing names and telephone numbers did not add to the ability to scrutinise the Programme.

The public interest in transparency and accountability was outweighed by the public interests in the right of individual not to have personal information unreasonably disclosed in circumstances where it would expose individuals in that environment to public criticism and attacks, where it is likely that this will occur and that this will in turn affect the agency’s ability to attract and retain future staff which will impact on the provision of an efficient and effective public service.

HELD:

The Information Commissioner’s decision was substituted so that personal information comprising names and telephone numbers and a signature, other than that of two specified people, was exempt from disclosure.