De Tarle and Australian Securities and Investments Commission (Freedom of information)
[2016] AATA 230
•8 April 2016
De Tarle and Australian Securities and Investments Commission (Freedom of information) [2016] AATA 230 (8 April 2016)
Division
GENERAL DIVISION
File Number
2014/3682
Re
Benoit De Tarle
APPLICANT
And
Australian Securities and Investments Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 8 April 2016 Place Sydney The Tribunal varies the decision under review with respect to documents 3, 5, 7, 18, 25, 31, 46 – 47, 50 – 51, 55, 59, 60 – 64 and 65 of the Revised Schedule of Documents dated 8 October 2015 (‘the Schedule’) and finds that there is no proper claim for exemption pursuant to s 47F of the FOI Act. The documents are to be released in full to the applicant.
The partial exemption claimed in respect of the balance of document 79 and the claim for complete exemption of documents 80 – 82 of the Schedule pursuant to section 47F(c) of the FOI Act are upheld.
The Tribunal is satisfied that the respondent has taken all reasonable steps to locate the documents identified in Category 2 and Category 6 of the Request.
The parties are directed to file consent orders pursuant to either s 26 or s 42C of the Administrative Appeals Tribunal Act 1975 concerning the remainder of the documents which were the subject of the applicant’s application for review before this Tribunal but which were either subsequently released or no longer pressed by the applicant, within 14 days of the date of this decision.
..........................[SGD]..............................................
Ms N Isenberg, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – request for access to documents – conditional exemptions claimed – certain operations of agencies – personal privacy – whether documents exempt – whether, on balance, access would be contrary to public interest – whether all reasonable steps taken to locate documents – decision varied
LEGISLATION
Freedom of Information Act 1982 ss 11A, 11B, 24A, 31A, 31B, 47E, 47F
CASES
Re Wilson and Australian Postal Corporation [1994] AATA 189
Carver and Fair Work Ombudsman [2011] AlCmr 5
Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900
'DX' and National Offshore Petroleum Safety and Environmental Management Authority [2014] AlCmr 132
‘EH' and Department of Defence [2015] AlCmr 2'EK' and Department of Human Services [2015] AlCmr 6
REASONS FOR DECISION
Ms N Isenberg, Senior Member
8 April 2016
DECISION UNDER REVIEW
The applicant, Benoit De Tarle, seeks review of a decision made by the Australian Securities and Investments Commission (‘the respondent’), on 27 March 2014 in respect of his application for access to documents under the Freedom of Information Act 1982 (‘FOI Act’).
BACKGROUND TO THE REVIEW
On 2 September 2013 the applicant made a request (‘the Request’) for access to documents in eight different categories.
The respondent identified a number of documents as falling within the scope of the Request. On 7 November 2013 it notified the applicant of its decision in relation to the Request (‘the Primary Decision’), and released 33 of the documents in full. It also granted the applicant partial access to 57 documents, and claimed exemption in respect of another 53 documents.
On 19 December 2013, following an internal review conducted pursuant to s 54B of the FOI Act, the Primary Decision was affirmed (‘the Review Decision’).
The applicant had sought review by the Office of the Australian Information Commissioner (‘the OAIC’), however the OAIC determined under s 55W(b) of FOI Act that it would be in the interests of the Act for the review to be conducted by this Tribunal. Subsequently, and following the Tribunal’s case management, further documents were provided to the applicant by the respondent, and the applicant narrowed the scope of the Request by indicating those documents to which access was pressed before this Tribunal.
The respondent contends that the remaining documents are exempt from production pursuant to either s 47E (certain operations of agencies) or s 47F (personal privacy) of the FOI Act; access to the documents would on balance be contrary to the public interest, taking into account s 11B; and the documents are therefore exempt pursuant to ss 11A(5), 31A and 31B. The respondent also contends that it has taken all reasonable steps to answer the Request in accordance with s 24A of the FOI Act.
The parties agreed that a hearing on the papers was appropriate. The respondent relies on two statements by Victoria Skinner, Employee Relations Manager in the respondent’s Human Resources (‘HR’) team named "People and Development" (‘P&D’). Both parties made extensive written submissions.
RELEVANT LEGISLATION
Under the FOI Act, every person has a legally enforceable right to obtain access under the Act to a document of an agency such as the respondent, other than exempt documents: s 11(a) of the FOI Act. As noted above at [6], the respondent contends that the documents which the applicant presses before this Tribunal are exempt pursuant to either ss 47E or 47F of the Act.
Section 47E provides as follows:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Section 47F provides as follows:
Section 47F Public interest conditional exemptions--personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a Request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person…
Where a person makes a request to an agency for access to a document of an agency, the agency must give the person access to the document, subject to s 11A. Subsection 11A(5) relevantly provides that:
The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Section 11B lists the factors relevant to determining whether access to a conditionally exempt document would be, on balance, contrary to the public interest under s 11A(5). These include whether access to the document would:
(i)promote the objects of the FOI Act;
(ii)inform debate on a matter of public importance;
(iii)promote effective oversight of public expenditure; and
(iv)allow a person to access their own person information.
It is also specified that factors which should not be taken into account include:
(a)that access to the document could result in embarrassment to the Commonwealth Government or cause a loss of confidence in the Commonwealth Government;
(b)that access to the document could result in any person misinterpreting or misunderstanding the document;
(c)that the author of the document was (or is) of high seniority in the agency to which the request for access was made; and
(d)that access to the document could result in confusion or unnecessary debate.
CONSIDERATION
Category 1 – A copy of all Sametime chat messages received by [the applicant ’s] computer terminal during [his] employment at the respondent
Ms Skinner explained that "Sametime" is an instant messaging communication system, which forms part of the Lotus Notes email software package and which allows users to send instant text messages to other users within an organisation. This messaging system was used internally by the respondent’s employees during the period of the applicant's employment. This accords with the applicant’s understanding set out in his submissions.
Despite the applicant’s careful drafting of his access request (viz “messages received by my computer terminal”), I did not understand the applicant to claim that he was not a party to the communications. Nor does it appear that the other parties to the communications raised any concern in the course of the communications that they may not have been communicating with the applicant. The respondent also did not raise this as an issue. Although there was no evidence about how one logs onto Sametime, it is reasonable to conclude that, a messaging system used internally by the respondent’s employees on their work computers required some form of personal log in, as is usual in a government workplace. I have therefore proceeded on the basis that the applicant was party to the communications recorded in his name.
The respondent had previously refused the applicant access to a number of documents in this category. The applicant narrowed his request and now only presses access to the balance, which the respondent has identified as documents 5-7,18, 25, 31, 46-47,50-51, 55 and 60-64.
From the text of the Sametime communications, I agree with the respondent‘s characterisation of them as being, by their very nature, exchanges which are casual, informal and likely to have been quickly effected between work colleagues. Some contain little more than quips at the expense of others. Some contain what seem like musings on the individual's disposition at the time.
In Documents 5, 6, and 7 the applicant and another person exchange views about the physical presentation of a person, who, in the applicant’s workplace, is probably reasonably identifiable; and their views about that person's intelligence and administration skills.
Document 18 contains information from another person about his career and intentions and an exchange about another person's work experience. Similarly, Documents 25 and 31 are exchanges of opinion about the intelligence and ability of another person (identified by first-name and initials).
Document 46 contains what was appears to be the other communicant’s home address and her thoughts on her future employment. Document 47 contains another person’s personal feelings and the applicant and that person’s opinion on the personality of another person (identified by initials). Document 50 contains that other communicant’s personal feelings and information on the employment of another person (identified by first-name). Similarly, Document 51 contains the other communicant’s personal feelings and an exchange with the applicant about the personality of another person (identified by first-name).
The respondent submitted that some of the exchanges are quite personal and not ones which the parties may have anticipated would be saved and available years later. Rather, as the respondent submitted, it might be expected that they would be concerned at their release. There was, however, no evidence that any of the communicants with the applicant were of this view.
Further, the respondent submitted, s 47F(1) provides that a document is conditionally exempt if disclosure would involve the unreasonable disclosure of personal information about any person. "Personal information" has the meaning in the Privacy Act 1988, relevantly, of information or an opinion about an identified individual or an individual who is reasonably identifiable, whether true or not.
Section 47F(2) of the FOI Act provides that the Tribunal must have regard to the extent to which the information is well known; and whether the person to whom the information relates is known to be or have been associated with the matters dealt with in the document; the availability of the information from publically accessible sources; and any other matters the Tribunal considers relevant.
What the respondent did not address was that the applicant was a party to all these communications; he has not asked for information which the communicants had not already made available to him. Further, that the respondent was (ultimately) able to provide a transcript of the communications suggests that it was open to the applicant himself to print out the communications as, or shortly after, they occurred.
That idle communications between employees can be retrieved by their employer some time later should be a salutary lesson to those who choose to make derogatory comments about others and disclose personal information about themselves to other employees while utilising their employers IT network.
I therefore find there is no proper claim for exemption in respect of documents 5-7, 18, 25, 31, 46-47, 50-51.
Documents 55 and documents 60-64 are slightly different in nature, but the outcome is the same. Document 55 contains information on work allocation and manager supervision, and documents 60-64 contain information about the communicant’s personal feelings and health and the applicant and the communicant’s opinion on the ability and personality of other persons, identified by full name, first name or initial. Document 64 also contains the communicant’s personal email address and mobile number. These documents also contain information on performance reviews and manager supervision. The respondent contended that release of the documents could reasonably be expected to have the effects in s 47E(c) and (d), namely a substantial adverse effect on the management or assessment of personnel by the respondent or a substantial adverse effect on the proper and efficient conduct of the respondent’s operations. These considerations might have produced a different outcome had it not been for the fact that the applicant, as discussed above, was a party to the communications.
I therefore also find there is no proper claim for exemption in respect of documents 55 and 60-64.
The applicant noted in his submission that documents 3 and 65 had been assessed by the respondent as ‘conditional access’ but he had not received those redacted documents. Also I observe from the respondent’s ‘Revised Schedule of Documents’ as at 8 October 2015 (‘the Schedule’) that the respondent’s claim in respect of some documents has been altered by hand to now claim full exemption. Therefore, the documents now in issue properly include 3, 59, and 65. Those documents are similar to those previously referred to, and, in particular, are communications to which the applicant was a party.
I therefore also find there is no proper claim for exemption in respect of documents 3, 59 and 65.
Category 2 – A copy of all documents connected to [the applicant ’s] complaint of bullying and harassment dated 8 March 2012, further detailed on 27 March 2012 (‘the Complaint’)
The respondent refused the applicant access to documents 80 and 82 and gave him partial access to documents 79 and 88B. The respondent understands that the applicant presses (complete) access to documents 79, 80 and 82. Document 88B is discussed below at [71] – [73].
Is document 79 partially exempt under s 47E(c) of the FOI Act?
Document 79 is an Investigation Report (‘Report’) prepared by Judy Lyng dated April 2012, with respect to the Complaint. A redacted version of document 79 was provided to the applicant. The redacted portions of the Report relate to the investigator’s notes of her discussions with two senior managers about whom the applicant had complained, and portions of her findings and recommendations. As to the redacted portions, the respondent claimed that s 47E(c) the FOI Act applies, which relevantly provides that a document is conditionally exempt if its disclosure under the FOI Act would, or could reasonably be expected to "have a substantial adverse effect on the management or assessment of personnel by the [respondent]". Further, the respondent submitted the balance of the document should not be released unless the disclosure would, on balance, be in the public interest: s 11A(5) of the FOI Act.
In support of these claims the respondent contended that the disclosure of the balance of the document, would or could reasonably be expected to result in a substantial adverse effect on the management or assessment of its personnel. It submitted that because during the investigation of complaints of bullying and harassment, staff the subject of the allegations would be less willing to provide full and frank information in response to the allegations and cooperate fully with the investigators if they knew that the subject matter of those discussions would become public. A reluctance on the part of the respondent’s staff members to provide statements or information in respect of allegations of misconduct or inappropriate behaviour in the work environment would, in turn, have a substantial adverse effect on the management or assessment of the agency's personnel.
I was referred to Re Wilson and Australian Postal Corporation [1994] AATA 189 where the Tribunal found that by disclosing statements submitted by staff in relation to a particular internal incident, the agency would create reluctance on the part of staff to provide statements in respect of future incidents. This, the Tribunal decided, would mean that serious work incidents may go unreported and management would therefore not be in a position to rectify workplace issues. The Tribunal also found that disclosure of confidential statements would be likely to impact detrimentally on staff morale. In the present matter, however, there was no evidence that ‘confidential statements’ had been provided by the senior managers, or evidence that the investigation was in accordance with some protocols as to confidentiality. Furthermore, the argument that “serious work incidents would go unreported” is not relevant in the present case, because it was the applicant who had raised concerns. The Report made recommendations about who was to be informed about the findings. Curiously, this did not include the applicant who, up until the Request, was provided, it appeared, only with a short letter to the effect that the matter had been finalized but without reporting on the findings and recommendations.
I was also referred to Carver and Fair Work Ombudsman [2011] AlCmr 5 where the applicant sought documents relating to, inter alia, the review of complaints he had made to the effect that two FWO inspectors had breached the APS Code of Conduct. The Information Commissioner observed, by reference to Wilson, that disclosing statements submitted by staff members in relation to a particular incident would create reluctance on the part of staff members to provide statements in respect of future misconduct or inappropriate behaviour in the work environment. The Information Commissioner took the view that documents, or parts of documents, that contained information about the evidence provided by FWO officers and others during the course of the Code of Conduct investigation could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations by the FWO or by other agencies and that this would have a substantial adverse effect on the FWO's capacity to manage and assess its personnel. As I have observed there was no evidence that the investigation in relation to Mr De Tarle’s complaint was pursuant to any particular workplace protocols.
I am not satisfied that release of the Report in its entirety would "have a substantial adverse effect on the management or assessment of personnel by the [respondent]", as it claims. There was no evidence, beyond its assertion, of the likelihood of this occurring.
As to the public interest test under s 11A(5) of the FOI Act, the Information Commissioner in Carver observed, referring to Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900, that there was a public interest in ensuring that serious allegations against a senior public official are properly investigated and that that interest may be promoted by providing transparency in such a process, being mindful of the privacy of those concerned. However, this interest was to be weighed against the public interest in the agency's ability to effectively manage its employees, particularly with regard to the independent and impartial investigation of complaints and the considerations that disclosure (a) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future; (b) could reasonably be expected to prejudice an agency’s ability to obtain similar information in the future; and (c) could reasonably be expected to prejudice the management function of an agency (at [41]-[42]).. It was held in Carver that the release (or complete release) of the contested documents would be contrary to the public interest.
I was also referred to a number of other cases.
In 'DX' and National Offshore Petroleum Safety and Environmental Management Authority [2014] AlCmr 132, the Information Commissioner found that s 47E(c) of the FOI Act applied to an investigation report into a workplace accident, which relied heavily on the written recollections of third parties, being the only parties with first-hand knowledge of the incident, and where the investigator could not likely have obtained the information by other methods. The Information Commissioner was satisfied that, without the written recollections of the third parties, the relevant Authority could not conduct proper and comprehensive OH&S incident investigations and the effectiveness of its OH&S processes would be substantially and adversely affected (at [35]). The public interest in safeguarding the integrity of the OH&S incident management and investigation was found to outweigh the public interest in disclosure (at [60]).
In ‘EH' and Department of Defence [2015] AlCmr 2 the applicant sought access to a report regarding unacceptable behaviour complaints made against her. The Information Commissioner was satisfied that it was reasonable to expect that disclosing the details of the statements made by particular staff members in the course of the preparation of the report would make staff reluctant to raise such concerns or provide candid information in the future and that the report was conditionally exempt under s 47E(c) (at [19]-[21]). The Information Commissioner found that while disclosure of the report would promote some of the objects of the FOI Act, it would not increase public participation or increase scrutiny of the Government's processes or activities such that giving the applicant access was found to be contrary to the public interest. A significant consideration was that the release of the identities of the third parties named in the document could prejudice the Department's ability to efficiently and properly conduct such investigations and inquiries into personnel in the future (at [40]-[46]).
Most recently, in 'EK' and Department of Human Services [2015] AlCmr 6 the Information Commissioner concluded that a report containing staff statements relating to a particular incident would reasonably have a substantial adverse effect on the relevant Department's ability to manage personnel during the investigation of privacy incidents and other reportable breaches of HR policies. Disclosure could reasonably be expected to affect the willingness of people to provide evidence (at [32]). It was determined that disclosure of the report would be contrary to the public interest; substantial weight was given, in this regard, to the Department's management of investigations into privacy breaches and the necessary requirement that it be able to obtain information to support those investigations (at [39]).
I accept that candour is essential when an agency seeks to investigate complaints, and especially those of bullying and harassment; staff may be reluctant to provide information and cooperate with investigators if they were aware that, the subject matter of those discussions would be disclosed and made public. That then would, in my view, have a substantial adverse effect on the management of the agency's personnel.
Consequently, the balance of document 79 is exempt from production pursuant to s 47E(c) of the FOI Act. .
Are documents 80 and 82 fully exempt under s 47E(c) of the FOI Act?
Documents 80 and 82 are both brief, largely illegible, hand written file notes of the conversation between, it appears, Ms Lyng and each of the two staff members the subject of the Complaint. These documents, the respondent submitted, show details of the management of personnel during an investigation process, whereby the investigator has taken personal notes of confidential discussions with staff under investigation to determine whether there had been a breach of the APS Code of Conduct.
The respondent submitted that these documents clearly fall with the scope of s 47E(c) of the FOI Act as they both relate to the management and the assessment of personnel. It contended that the disclosure of these two documents, which set out the nature of the allegations and the responses from the relevant staff, would or could reasonably be expected to, result in a substantial adverse effect on the management or assessment of personnel by the Commonwealth / the respondent. This is because during the investigation of a complaint of bullying and harassment, staff the subject of the allegations would be less willing to provide full and frank information in response to the allegations and cooperate fully with the Respondent.
For the reasons discussed above in relation to document 79, disclosure of documents 80 and 82 would not, on balance, be in the public interest. Consequently, the documents are exempt from production.
Have all the relevant documents in Category 2 been identified?
Pursuant to section 24A of the FOI Act the respondent may refuse the applicant’s request for access to a particular document if all reasonable steps have been taken to find the document and the respondent is satisfied that the document is either is in its possession and cannot be found or does not exist.
The applicant asserted that only a limited number of documents falling with Category 2 have been identified. To the extent that the applicant complained that the respondent has not undertaken reasonable steps to locate documents in Category 2, the respondent relied on Ms Skinner's statements.
This category relates to an investigation undertaken by Ms Lyng following the Complaint. Ms Lyng provided her full file to Ms Skinner. Ms Lyng informed Ms Skinner that no other individuals had been involved in the investigation, other than those interviewed as outlined in her notes and the investigation report. Ms Lyng did not provide a copy of her report to any individuals who participated in the investigation.
The P&D Relationship Manager who was a point of contact for the applicant's enquiries was also contacted. He advised that, as this complaint related to a sensitive matter, it was conducted highly confidentially and he had no material in relation to this investigation.
On 13 July 2015, Ms Skinner asked Ms Jenkins to confirm what searches she had conducted for this category of documents as part of the applicant’s request for internal review of the Primary Decision. Ms Jenkins confirmed that she had a meeting with Ms Lyng at the time of the internal review and that the only hard copy record of this discussion is a calendar entry for the meeting. Ms Jenkins informed Ms Skinner that she believes the meeting was in relation to the Request. Ms Jenkins confirmed that Ms Lyng created a hard copy file on the investigation of the Complaint. This hard copy file was searched by Ms Skinner as the primary decision maker. Ms Jenkins confirmed that at the time of the internal review she showed Ms Lyng the list of documents in the schedule provided to the applicant by the original decision maker and that Ms Lyng confirmed that they were the only documents available to produce to the applicant; and to the best of her recollection, Ms Lyng and the applicant were the only people involved in producing documentation during the course of Ms Lyng's investigation.
Ms Jenkins also advised Ms Skinner that, at the time of the internal review, she discussed the existence of a document identified by the applicant as an "Employee Grievance Register" with Peter McGee, HR Relationship Manager, P&D team, who was the person responsible for managing the applicant’s employment within the P&D team and that, at the time, Mr McGee confirmed that he did not know of the existence of any such register.
On 3 August 2015, Ms Skinner undertook further searches for documents potentially falling within Category 2 of the Request. These searches were focused on the materials and matters set out in the applicant's submissions, in which he outlined examples of documents which were not identified by the respondent, which he said existed and fell within Category 2 of the Request.
In his submissions the applicant contended, for example, that an email from Ms Lyng to him and Helen O'Loughlin dated 8 May 2012 (copy annexed to his Statement of Facts and Contentions (‘SOFAC’)) fell within the scope of the Request, as did any recommendations made to Oliver Harvey, as referred to in that email. Ms Skinner states that the email responds to an email of 4 May 2012 sent to Ms Lyng from the applicant’s personal ‘Hotmail’ email address. Curiously, although clearly referring to the applicant, it was not identified in her initial searches, as Ms Lyng was apparently of the view that as the email was not sent to the applicant’s work email address it did not fall within the Request. On 3 August 2015, Ms Skinner requested that Ms Lyng undertake further searches of her email system for any emails sent or received from the applicant’s personal Hotmail address. As a result of these searches, one further email has been recovered from Ms Lyng's email account. This email dated 4 May 2012 was sent from the Hotmail email address and was titled "Bullying and Harassment Complaint". It has now been released in full to the applicant. Other than that email, Ms Lyng confirmed to Ms Skinner that after conducting searches of her email account, she had no further copies of any emails either received from or sent by the applicant from his Hotmail address or any other email account which might be associated with the applicant. Ms Lyng also confirmed that she had searched for but not found any other emails in relation to the applicant’s complaint.
On 3 August 2015, Ms Lyng also confirmed that the recommendations from her investigation which she described in her email of 8 May 2012 as Attachment I to the applicant's SOFAC as having been "provided to Mr Harvey" were provided to him “orally in a telephone discussion, and that she has been unable to locate any emails or other correspondence to Mr Harvey which document these recommendations”. Further, Ms Lyng told her that she did not recall setting out any recommendations in writing or setting up any meeting with Mr Harvey. Ms Lyng further searched her email account and calendar and confirmed that she has no documents providing any detail of the recommendations to Mr Harvey arising from her investigation.
Ms Skinner said she was informed by Ms Suzanne Cruice, Relationship Manager, P&D team, that the applicant may have received some of this information in connection with an investigation undertaken by Comcare in September 2012 concerning his complaints to Comcare of bullying and harassment within the respondent. Ms Cruice told her that as part of that investigation, the P&D team produced numerous documents to assist Comcare with its investigation.
During the applicant's employment with the respondent, he made several complaints of bullying and harassment against various managers and colleagues. Comcare conducted its investigation into the respondent as a result of complaints made by the applicant in relation to general allegations of bullying and harassment on a team wide basis. Comcare investigated those complaints in September 2012. In his submissions the applicant referred to documents relating to his "complaint file", being those attached as Attachment J to his SOFAC. Attachment J sets out a list of documents requested by Comcare in order to conduct an investigation of the respondent in September 2012. The term "complaint file" is one referred to in Comcare's request for documents and, Ms Skinner said, is not a term used by the respondent and no "complaint file" in relation to the applicant was created.
Comcare's request for documents was sent by email on 7 September 2012 from Donna Powell of Comcare to the Respondent’s HR Senior Executive Leader, Helen O'Loughlin, and Ms Cruice (this email is included in Attachment J to the applicant's SOFAC). The respondent submitted, and I agree, that this document does not fall within Category 2 of the Request before this Tribunal as it refers to a site visit and Comcare’s broad investigation and does not refer to the specific complaint of bullying and harassment that the applicant made in March 2012.
In his submissions the applicant also referred to the "Monthly Work Health and Safety Report" which is referenced in the Comcare Notice in Part 1 of Attachment J. This report contains information, such as a list of workers' compensation claims made by employees of the respondent in August 2012, a graph showing the breakdown of employee injuries by office Location, a graph showing the breakdown of employee injuries by team, and a detailed table of injured employees and employees on return to work programs as at August 2012.
The document does not refer to the applicant or the applicant's complaint of harassment and bullying made in March 2012. On that basis, I find that it does not fall within the scope Category 2 of the Request.
The applicant also referred to an "Employee Grievance Register" to which reference is made in the documents at Attachment K to the applicant's SOFAC (being documents connected to the Comcare investigation). The title of this document was used by Comcare in its request for documents. Ms Skinner wrote that the respondent compiles a register document titled "Employee Relations Case Management Reports", which she was informed by Ms Cruice was provided to Comcare as part of Comcare's investigation in September 2012. The respondent submitted that it was reasonable to conclude that this document is the "Employee Grievance Register" referred to by Comcare in Attachment K.
The respondent has located the Employee Case Management Reports and notes that the Complaint is included in the document. The respondent granted the applicant partial access to the document on the basis that some parts of it are exempt from production under ss 47E and 47F of the FOI Act.
In his submissions the applicant referred to a Deloitte Report related to a Work, Health and Safety Internal Audit dated June 2012, which is referred to in the document that appears at Attachment K to the applicant's SOFAC. The respondent located a draft of the Deloitte Report and will not release this document to the applicant on the basis that it is a general audit report of work, health and safety systems as at June 2012. The Deloitte Report makes no specific mention of bullying or harassment as part of its work, health and safety audit and no mention is made of the applicant in this report nor the Complaint. Therefore the report does not fall within the scope of Category 2 of the Request.
The applicant referred in his submissions to an "investigation report" that is referred to in the document at Attachment M to the applicant's SOFAC and also on page 4 of the Comcare Inspector Report at Attachment K to the applicant's SOFAC. Ms Skinner identified the investigation report referred to as document 79, which is discussed above at [32] to [44].
On 7 October 2015, Ms Skinner had a further discussion with Ms O'Loughlin in relation to Category 2 of the Request. She said she asked Ms O'Loughlin to search for any further emails held in her ASIC Lotus Notes email account for documents connected to the applicant's complaint of bullying and harassment dated 8 March 2012, and further detailed on 27 March 2012. Ms O'Loughlin was not able to provide any further documents from the initial searches conducted in October 2013. Ms O'Loughlin has not kept hard copy files in relation to this complaint or the applicant.
On the same day, Ms Skinner requested that Mr McGee undertake a further discussion with Mr Harvey in relation to Category 2 of the Request. Mr Harvey was asked to search for any further emails held in the ASIC Lotus Notes email system for documents connected to the applicant's complaint of bullying and harassment. On 8 October 2015, Mr Harvey advised Mr McGee that he was not able to provide any further documents and did not keep any hard copy files in relation to the applicant.
Also on the same day Ms Skinner had a further discussion with Mr McGee in relation to Category 2 of the Request and asked him to search for any further emails held in the ASIC Lotus Notes email system connected to the applicant's complaint. Mr McGee was not able to provide any further documents in relation to Category 2 of the Request and has not kept any relevant hard copy files in relation to the Complaint or the applicant.
The applicant is concerned that the search for the documents was and continues to be inadequate, because subsequent searches, only conducted when provoked by the applicant, had found further documents. Given the piecemeal provision of material, and that it was only on further searching that additional documents were provided, the applicant was not confident that all relevant material had been provided. The respondent asserts that it has given the applicant all the documents which it has within the scope of the application.
On the basis of the available evidence I am reasonably satisfied that the respondent has undertaken such reasonable searches as may be necessary to find any of the documents applied for that it held when the application was received.
Category 3 and Category 4 – not pressed
At [75] and [76] of the document titled “Applicant’s response to the submissions of the respondent on 13 August 2013”, the applicant states he is not pressing claims regarding documents in Category 3 or Category 4.
Category 5 – A copy of a record listing any and all complaints by the [respondent’s] employees concerning the EMO/FMI team for the period 1 January 2009 to the present
The respondent identified two documents in this category – documents 88B and 95A (the document identified as 88B is relevant to both Category 2 and Category 5 of the Request).
Document 88B is headed "Employee Grievance Cases as at 4 September 2012" and has been released to the applicant in a redacted form. Some parts of it are claimed to be exempt from production under ss 47E and 47F of the FOI Act. This document is a Microsoft Word document produced by the P&D team and is an extract of a quarterly report of significant P&D matters regarding employee grievances received in the September 2012 quarterly period. It is sorted by subject matter. Only an extract relating to the applicant's complaint has been provided to him.
As to the balance, I find that release of the full document would involve the unreasonable disclosure of personal information about another person. While the person is not identified by name, their initials and work group would make them readily identifiable. Disclosure would, in my view, be contrary to the public interest. Consequently the balance of document 88B is exempt from production.
Document 95A is entitled "Employee Case Management Register". Ms Skinner noted that it is a register of matters created as an extensive database in Microsoft Excel to track the progress of matters such as complaints, performance management data, disciplinary and conduct investigations. This spreadsheet is updated whenever a new matter is entered by a manager within the P&D team. Ms Skinner said she searched all versions of the Employee Grievance Register since 2010 and, other than the Complaint, she found no other complaints concerning the Exchange Markets Operators/Financial Market Infrastructure team ("EMO/FMI team").
That portion of the Register relating to “complaints concerning the EMO/FMI team for the period 1 January 2009 to the present” was released to the applicant. I accept, on the basis of Ms Skinner’s evidence, that the Register contains no other complaints for that period, other than that of the applicant.
The version produced for the applicant is an extract from a much larger database with multiple spreadsheets created in Microsoft Excel. The document includes minor matters and complaints and is in nature a separate reporting document from the "Employee Grievance Register" identified in the Comcare Inspection Report in Attachment K to the applicant's SOFAC. This document includes other matters than employee grievances. The extract provided to the applicant as document 95A contains information regarding the Complaint. This information was not provided in the initial searches for Category 5 as it related to the Complaint and the initial searches were conducted seeking complaints regarding other individuals within the EMO/FMI team and overlooked the Complaint.
I was informed that full access to the extract has been provided to the applicant.
Category 6 – A copy of all documents connected to [the applicant’s] whistleblowing report dated 10 March 2013 concerning suspected breaches of the APS Code of Conduct or Values
The respondent refused access (or full access) to documents 98, 101-103, 106-107, 132 and 140, although document 101 was subsequently released to the applicant, and the respondent has since determined to release documents 102, 106-107, 132, 140 to the applicant . The applicant presses access to the remainder of the documents.
Document 98 is a letter from the applicant to the Merit Review Commissioner dated 24 December 2012 with many attachments. Document 98 was provided by the applicant to the respondent in relation to another matter. The original which he provided contained some redactions, that is, with blacked out portions of the letter. I was informed that the respondent has given him full access to the document, as they received it from him i.e. with the blacked out portions.
Document 103 is the same as document 79, which has been discussed above at [32] to [44].
Have all the relevant documents in Category 6 been identified?
The applicant submitted that there are further documents falling within Category 6 which have not been provided or identified by the respondent.
To the extent that the applicant complains that the respondent has not undertaken reasonable steps to locate documents in Category 6, the respondent relies on Ms Skinner's statements, and the extensive documentation identified and released to date.
In her second statement Ms Skinner wrote that the applicant's whistleblowing complaint was investigated by and a report prepared by ASIC's Commission Counsel, Conrad Gray. At the time of the Request, Mr Gray gave Ms Skinner access to his files within the Electronic Content Management system (‘ECM’) where he had stored information regarding his report. Mr Gray told her that he had stored all of the material in relation to the whistleblowing complaint in the one folder he had given her access. She printed all of the material stored within the ECM by Mr Gray as part of her searches for documents for Category 6.
She said she was also provided with Mr Gray's hard copy files which he had used to prepare his report, and copies of all of Mr Gray's emails between the applicant, the Chairman, Ms O'Loughlin, Mr Harvey, Mr McGee and Ms Lyng and himself regarding the applicant's whistleblowing complaint.
Ms Skinner said that on 7 October 2015, she undertook further searches in relation to documents potentially falling within Category 6 of the Request. This involved searching again through the emails and paper files originally provided to her by Mr Gray. She also searched the material she had printed from the ECM. She requested that Ms O'Loughlin, Senior Executive Leader, P&D team, conduct a search for further documents; but Ms O'Loughlin was also not able to locate any further documents.
Ms O'Loughlin also requested that Ms Hilda Miller, Executive Assistant to the Chairman of ASIC, conduct searches of both her and the Chairman's email account to produce any further documents. A copy of a further email identified as falling within the scope of the documents requested under Category 6 of the Request was identified. The email from the applicant to Mr Medcraft is the covering email to the applicant's whistleblower complaint and was dated 10 March 2013. It has been released to the applicant.
The applicant submitted that it is incorrect that information regarding the report was only circulated between Mr Gray, Mr Medcraft and the applicant. The respondent submitted that the applicant's whistleblower report was at no stage provided to other parties, due to the sensitivity of the report; in particular, the report has not been provided to Ms O'Loughlin. While Ms Miller had access to email copies of the report, as Mr Medcraft's Executive Assistant, her access was solely in that capacity with access to the Chairman's email account.
I reject the applicant’s contention that further documents were not identified because of embarrassment to the agency; there is no evidence that this is the case. Further, I am satisfied that the searches conducted on behalf of the respondent were intended to identify further documents, but that none, other than the applicant’s email to the Chairman, were found. I am also satisfied that such searches were reasonable.
Category 7 and Category 8 – not pressed
The Tribunal understands from the material provided by both parties that the documents contained in Category 7 and Category 8 are not being pressed by the applicant.
DECISION
For the reasons outlined above, the Tribunal varies decision under review with respect to documents 3, 5, 7, 18, 25, 31, 46 – 47, 50 – 51, 55, 59, 60 – 64 and 65 of the Revised Schedule of Documents dated 8 October 2015 (‘the Schedule’), as I find that there is no proper claim for exemption pursuant to s 47F of the FOI Act. The documents are to be released in full to the applicant.
The partial exemption claimed in respect of the balance of document 79 and the claim for complete exemption of documents 80 – 82 of the Schedule pursuant to section 47F(c) of the FOI Act are upheld.
The Tribunal is satisfied that the respondent has taken all reasonable steps to locate the documents identified in Category 2 and Category 6 of the Request.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
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Associate
Dated 8 April 2016
Date of hearing 2 February 2016 (on the papers) Applicant In person Solicitors for the Respondent In-house
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