Hay; The Australian Statistician, Australian Bureau of Statistics and (Freedom of information) - [2019] AATA 5249

Hay; The Australian Statistician, Australian Bureau of Statistics and (Freedom of information) [2019] AATA 5249 (6 December 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2019/1710
Re:The Australian Statistician, Australian Bureau of Statistics
APPLICANT

AndAmanda Hay
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:6 December 2019
Place:Brisbane

The decision under review is:
(a)set aside in relation to the first and fourth sentences of the first full paragraph on page 2 in Document 17 (the outstanding material); and
(b)substituted insofar as the outstanding material is an exempt document under s 47F of the Freedom of Information Act 1982 (Cth).

..................................[SGD]......................................
Deputy President J Sosso
CATCHWORDS
FREEDOM OF INFORMATION – review of Office of the Information Commissioner decision – Freedom of Information Act 1982 (Cth) – s 47F public interest conditional exemptions – personal privacy – ss 11A and 11B whether giving access to material would be contrary to the public interest – decision under review set aside with respect to the outstanding material
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Privacy Act 1988 (Cth)
CASES
Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900
Australian Bureau of Statistics (Freedom of information) [2019] AICmr 7
Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission [2017] AATA 269
SECONDARY MATERIALS
Freedom of Information Guidelines
REASONS FOR DECISION
Deputy President J Sosso
6 December 2019
INTRODUCTION

The Australian Statistician, Australian Bureau of Statistics (the Applicant) seeks a review of the decision of the Australian Information Commissioner (the Commissioner) made on 25 February 2019 insofar as it relates to granting access to the first and fourth sentences of the first full paragraph on the second page of Document 17 which was the subject of a request made by Ms Amanda Hay (the Respondent) under the Freedom of Information Act 1982 (Cth) (the Act).
The subject matter in dispute has considerably narrowed over time, and, by consent, on 8 August 2019 the Tribunal affirmed the decision of the Commissioner except in relation to the material in the first and fourth sentences on page two of Document 17 (the outstanding material), and further directed that the Applicant give the Respondent a copy of Document 17 in the form the Commissioner decided it should be released, except for the outstanding material.
A copy of Document 17, in accordance with the Consent Decision of 8 August 2019, was released to the Respondent on 20 August 2019.
The matter in dispute at the commencement of the review process concerned the contents of an email exchange on 12 July 2016 between officers of the Australian Bureau of Statistics (ABS) regarding the conduct of a recruitment process which was the subject of a complaint by the Respondent.
On 16 August 2016 the Respondent sought access to documents relating to the recruitment process; and subsequently revised the scope of her request on 10 and 13 September 2016 – T3 pp. 6 – 8. The ABS conducted a search which determined that there were 95 documents existing which fell within the scope of the Freedom of Information (FOI) request – T4 p. 9.
Ms Christine Williams, an officer of the ABS, in a decision dated 28 September 2016, provided the Respondent access to 78 of the requested documents, either in full or part, but refused access to the remaining 17 documents – T4 p. 10.
Relevantly, Ms Williams decided that the outstanding material in Document 17 was conditionally exempt under s 47C and its disclosure would, on balance, be contrary to the public interest – s 11A(5).
The Respondent had been an unsuccessful candidate for a position within the ABS as an Area Supervisor for the 2016 Australian Census.
As explained above, the recruitment process was the subject of a complaint by the Respondent and a subsequent internal investigation by the ABS conducted by a Complaints Officer.
At the time of the email exchange in Document 17, and, ostensibly, unknown to the ABS officers, the Complaints Officer had finalised the internal investigation into the recruitment process and the Respondent had been notified of the outcome – Statement of Facts, Issues and Contentions of the Applicant (ASFIC) para 3.
The outstanding material in Document 17 refers to the possible outcomes of the investigation by the Complaints Officer, and, in particular, how it may have impacted a third party, Ms Jennifer Sanders. Ms Sanders was the decision-maker in respect of the recruitment process for an Area Supervisor position, the subject of the Respondent’s complaint – ASFIC para 4.
The Complaints Officer found that there was no evidence that any ABS staff, including Ms Sanders, acted inappropriately in considering the Respondent’s application to be an Area Supervisor nor had any ABS staff acted inconsistently with relevant ABS policies or procedures. These findings were transmitted to the Respondent on 8 July 2016 – ASFIC para 5.
Despite this finding, on 21 February 2019 Ms Jenet Connell, Deputy Australian Statistician and Chief Operating Officer of the ABS, accepted the Respondent’s claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration. In her letter to the Respondent, Ms Connell provided the following reasons – ASFIC para 6:
“The ABS’ administration of the 2016 Census Area Supervisor recruitment process was defective. In adhering to that defective process, Ms Sanders actions resulted in a financial detriment to you. As such, you are entitled to compensation for loss of economic opportunity.”
It is also not contested that subsequently the relevant ABS recruitment practices and guidelines were updated – ASFIC para 7.
On 4 November 2016 the Respondent, pursuant to s 54L of the Act, sought a review of this decision by the Commissioner, who, pursuant to s 54Z of the Act, notified the Applicant and drew attention to s 55DA of the Act which required the Applicant to assist the Commissioner in conducting the review – T5 pp. 15 – 16.
On 3 February 2017 Ms Williams, pursuant to s 55G of the Act, revised her decision in relation to further material in 68 documents, including Document 17. So far as Document 17 was concerned, Ms Williams continued to be of the opinion that some material was exempt pursuant to s 47C, but formed the view that other material was not exempt – T6 pp. 18 – 20.
On 22 September 2017 Kerry Markoulli, Program Manager with the ABS, determined to set aside the previous two decisions and substitute them with a second revised decision under s 55G of the Act – T7 pp. 21 – 26. It was again decided that the remaining material in dispute in Document 17 was conditionally exempt under ss 47E and 47F and its disclosure would, on balance, be contrary to the public interest – s 11A(5).
The Respondent on 10 October 2017 and 26 May 2018 revised the scope of her request by reducing the information sought, resulting in only 20 documents remaining within the scope of the Commissioner’s review.
The Commissioner in Amanda Hay and Australian Bureau of Statistics (Freedom of information) [2019] AICmr 7 (Amanda Hay) set aside the decision of the Applicant and, so far as Document 17 is concerned, decided that the material therein was not exempt under s 47E(c) of the Act.
Document 17 was one of 10 documents which the ABS said in its second revised decision was exempt under s 47E(2) for the following reasons (quoted in Amanda Hay at para 58):
“The documents contain information that reveals specific ABS internal processes, including advice and information pertaining to recruitment processes. The operation of these processes relies heavily on the ABS’ ability to obtain information in confidence. Disclosing this information would reasonably be expected to affect the integrity of future processes and our ability to undertake recruitment and manage complaints. This would have an adverse and substantial effect on the management and assessment of personnel…”
The Commissioner, however, was not satisfied that the ABS had discharged its onus under s 55D to establish that the relevant material could be expected to substantially and adversely affect the ABS’s management or assessment of personnel. In reaching this conclusion, the Commissioner gave the following reasons (footnotes not included):
“62. In previous IC reviews, it has been accepted that disclosure of material provided to an agency that forms the substance of a complaint, or an officer providing particulars during a complaint investigation would have a substantial and adverse effect on an agency, and is exempt under s 47E(c).
63. However, the relevant material in this case is operational or administrative in nature and includes information about processes for complaints made in relation to non-ongoing positions generally, discussion in relation to ABS’ management of the applicant’s specific complaint and communication with the applicant about the processing of her complaint, and discussion regarding processing of a previous FOI request the applicant made to the ABS.
64. It does not appear that this information was obtained in confidence and the relevant material does not address the allegations raised by the applicant in her complaint to the ABS.
65. As such, I am not persuaded that disclosure of the material that ABS found to be exempt under s 47E(c) would affect the ABS’ ability to obtain information in confidence, nor would it affect the integrity of future recruitment processes conducted by ABS and the ABS’ ability to manage complaints.
66. The ABS has not identified particulars of the predicted effect of disclosure of the documents, beyond a general submission that disclosure would be reasonably expected to affect the integrity of future processes and ability to undertake recruitment and manage complaints. Accordingly, I am not satisfied that ABS has discharged its onus in establishing that giving the applicant access to this material at this time would have a substantial adverse effect on the ABS’ management of personnel.
67. I am also of the view that while relevant documents contain discussion regarding the ABS complaints investigation process in relation to recruitment of non-ongoing positions, disclosing the process involved in reviewing complaints, would not adversely affect future recruitment or the management of complaints, particularly as disclosure would inform complainants or potential complainants about the complaint process, providing greater transparency in the ABS complaint process.”
The Commissioner then dealt with the personal privacy exemption – s 47F. The ABS found material in 19 documents to be exempt in part (including Document 17) and two documents exempt in full under s 47F.
However, during the course of the Commissioner’s review, the Respondent advised that she was not seeking review of the decision of the ABS that the s 47F exemption applied to the names and contact details of ABS employees, and the Commissioner therefore found (Amanda Hay at [72]) that there were only six documents remaining, which contained material relevant to the request, and Document 17 was not one of those documents.
The Commissioner subsequently found (Amanda Hay at [85] – [89]) that the documents were conditionally exempt under s 47F and that the public interest factors weighed against disclosure (Amanda Hay at [95] – [96]) as there was a strong public interest in protecting the privacy of third parties. The Commissioner found (Amanda Hay at [97]) that the relevant material was exempt under s 47F.
On 25 March 2019 the Applicant sought review of the Commissioner’s decision in relation to Document 17 – T1 pp. 1 – 3.
On 29 April 2019 Deputy President McDermott made an Order staying the operation of the Commissioner’s decision until the determination of the application for review by the Tribunal or until further Order of the Tribunal.
As previously explained, by consent, I ordered on 8 August 2019 that the stay on releasing the information contained in the Commissioner’s decision be set aside and, with the exception of the outstanding material in Document 17, the Commissioner’s decision be given effect to.
On 17 May 2019 Ms Sarah Pitney of the Australian Government Solicitor, acting on behalf of the Applicant, wrote to Ms Sanders notifying her of these proceedings and seeking her views concerning the potential release of personal information contained in Document 17 – ST1 pp. 47 – 49.
On 27 May 2019 Ms Lesley Turton of Clarke & Turton Lawyers, acting on behalf of Ms Sanders, responded to Ms Pitney in the following terms – ST2 pp. 50 – 51:
“My client submits that the release of personal information about my client contained in Document 17 is exempt under section 47F of the FOI Act…
My client undertook the recruitment and selection process for the Australian Bureau of Statistics (ABS) and used all available resources to build a strong team of area supervisors who worked well together and completed the time critical project within the timeframes allocated. It would be an unfair release of personal information to open up opinion on my client’s fairness and integrity when an internal investigation has found the process was appropriate.
The nature of the information includes information about an internal investigation and review within the (ABS) regarding the recruitment and selection process. The investigation and review found the recruitment process and selection was appropriate. Document 17, written while the investigation was underway, hypothesises on what further action is required with a different investigation result. As a matter of fact, the hypothesised result was erroneous.
The text in document 17 is not factual about my client and the release of the information is unreasonable because it is misleading. It is not in the public’s best interests, on balance that a hypothesised unfounded misleading assumed and incorrect investigation result be released. In essence the document contains information and an opinion about an identified individual – my client. The opinion is several years old, and is not substantiated by an investigation and the information is irrelevant to the outcome of the investigation and my client opposes the release of this information.
The text directly in relation to my client is personal and likely to be used inappropriately leading to outcomes detrimental to my client’s private wellbeing and public reputation as well as my client’s future plans in public elected local government roles. The conclusions that can be drawn from the release of this information are detrimental to my client personally and potentially to the views of others about my client by their implied suggestion that my client not have acted appropriately, when the internal ABS investigation cleared my client. The Act does not restrict the subsequent use of released information and it is very possible, and in my client’s view likely, that the information would then be released publicly and be detrimental.
The fact that my client’s name was included in the process of investigation is not relevant information to release nor is it in the public interest. The information is not well known from other public sources and the release of my client’s name serves no purpose and is not relevant. My client had no control over someone else inserting my client’s name in text nor the context of the usage and its release.
My client’s role in the contract with the ABS has no bearing on the public interest, nor does the release of my client’s personal information. The disclosure of the information does not advance the public interest in transparency and integrity. There is no question of impropriety in the recruitment and selection process of the ABS.
The release of the personal information including my client’s name bears no significance on the outcome of the ABS investigation.
My client holds the personal view that the person seeking to have this information released is a disgruntled candidate who will continue to make complaints and not accept the decisions nor the process.
My client’s family and my client feel that this is a long running, unrelenting and personal attack on my client and my client’s privacy. The Applicant appears not to accept that fair decisions were made while assessing candidates’ applications for positions.
The Applicant is unrelenting in pursuing this matter although it has been investigated. The release of further information that is not factual and relates to a person’s unfounded opinion on an outcome.
My client submits and requests that the information not be released in document 17, and further that the information in this document not be released. My client requests that all aspects of my client’s privacy preserved for the reasons outlined above.”
On 4 June 2019 Ms Turton again wrote to Ms Pitney. In this correspondence, she confirmed that Ms Sanders was comfortable with the release of the above correspondence of 27 May 2019, and re-iterated Ms Sanders concerns. Further, Ms Sanders added that she was concerned for her safety as she was unsure if the Respondent’s “behaviour will escalate.” – ST3 p. 52.
It should be noted that the Respondent contested much of the above assertions in Submissions in Reply to ABS Statement of Facts, Issues and Contentions (RSFIC) pp. 3 – 6.
On 16 June 2019 the Respondent sought the issue of a summons requiring the Commissioner to appear before the Tribunal and give evidence in her capacity as the decision-maker in Amanda Hay.
Subsection 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce any document or other thing specified in the summons.
Subsection 40A(2) provides that a request to summon a person may be refused.
In an email of 3 July 2019, the Respondent outlined at some length the reasons why a summons should issue. She explained that she wanted the Commissioner to appear before the Tribunal and give evidence not in her capacity as a decision-maker but, rather, in her capacity as an expert witness in the field of FOI law.
The Applicant opposed the issue of a summons in a detailed submission dated 25 June 2019.
First, the Applicant pointed out (at [6]) that the Tribunal is not constrained by the Commissioner’s decision or reasons in Amanda Hay, but is required to consider the matter afresh.
The Tribunal accepts that the Tribunal’s mandate is to conduct a de novo review, and is required to reach a decision based on the materials presented and the reasons advanced in these proceedings. It is usually the case, and it is so in this matter, that both the materials and reasons differ from those considered by the decision-maker in the reviewable decision. In this matter, for example, the scope of the inquiry is much more compact and the focus of the inquiry is on the operation of s 47F.
The Applicant went on (at [10]) to submit that the Commissioner’s evidence as to the reasons for her decision in Amanda Hay would not assist the Tribunal in determining whether the outstanding material is exempt under s 47F(1).
The Tribunal agrees with this submission, and further notes that it usually impermissible for a decision-maker whose decision is under review to make submissions as to why that decision is correct as distinct from one or more of the parties who made submissions to the decision-maker.
The authority underpinning this principle is the High Court decision of R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman). The Hardiman principle deals with the degree to which administrative decision-makers can act as contradictors in proceedings challenging their decision. In Hardiman, the Court said (at 35 – 36):
“In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”

The Full Court of the Federal Court in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877 held that Hardiman applies to proceedings before this Tribunal.
It follows that if a party to Tribunal proceedings seeks to use the summons power to, in effect, require a decision-maker to appear before the Tribunal and be put in a position, through questioning, of defending the substance of their decision, then in the normal course the request to issue a summons should be refused.
Second, the Applicant then (at [11]) dealt with the suggestion that a summons should issue to the Commissioner on the basis that she is an “expert witness”. The Applicant submitted that the Commissioner does not possess specialised knowledge in any field relevant to the Tribunal’s determination. In particular, the Commissioner’s evidence as to her understanding of the operation of the Act would not assist the Tribunal as the Tribunal must determine questions of law itself.
The Tribunal notes that the Commissioner is an expert in the field of FOI law and administration. However, as the Applicant correctly submits, it is for the Tribunal to apply the law to the evidence presented in these proceedings, and it is not for any other person to give “evidence” about how the law should be applied. It is the role of the parties and their representatives to put submissions about the evidence and the law pertaining thereto.
The Tribunal convened a Directions Hearing on 13 September 2019 and, having heard from both the Applicant and the legal representative for the Respondent, refused the Applicant’s request to summon the Commissioner.
After the Tribunal refused the request to summon the Commissioner, both parties agreed that the review should be determined without a Hearing. The Tribunal agreed that the issues for determination on review could be adequately determined in the absence of the parties, and, accordingly, the review has been determined “on the papers” pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUES
It is not contested that the relevant issues for the Tribunal’s determination are:
(a)whether disclosure of the relevant material would involve the unreasonable disclosure of personal information about a third party (Ms Sanders); and
(b)if yes, whether giving the Respondent access to the material would, on balance, be contrary to the public interest.
THE LEGISLATION
Division 3 of Part IV of the Act deals with public interest conditional exemptions. Section 47F provides for exemptions dealing with personal privacy.
The general rule is contained in s 47F(1) namely that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person).
The term “personal information” in the Act has the same meaning as in the Privacy Act 1988 (Cth) (section 6) namely:
“Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a)whether the information or opinion is true or not; and
(b)whether the information or opinion is recorded in a material form or not.”
In determining whether the disclosure of information would involve unreasonable disclosure of personal information, s 47F(2) provides that a decision-maker 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; and
(d)any other matters the decision-maker considers relevant.
Pursuant to s 93A(1) of the Act, the Commissioner may, by instrument in writing, issue guidelines for the purposes of the Act. Subsection 93A(2) provides that for the purposes of the performance of a function, or the exercise of a power, under the Act, regard must be had to any guidelines issued by the Commissioner.
Paragraph 6.143 of the Freedom of Information Guidelines (the Guidelines) lists the following additional factors that may be relevant:
·the nature, age and current relevance of the information;
·any detriment that disclosure may cause to the person to whom the information relates;
·any opposition to disclosure expressed or likely to be held by that person;
·the circumstances of an agency’s collection and use of the information;
·the fact that the Act does not control or restrict any subsequent use or dissemination of the information released under the Act;
·any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information; and
·whether disclosure of the information might advance the public interest in government transparency and integrity.
If it is determined that a document is conditionally exempt, s 11A(5) requires a decision-maker to give an Applicant access to the document unless (in the circumstances) access would, on balance, be contrary to the public interest.
Section 11B provides non-exhaustive (s 11A(2)) guidance on working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s 11A(5) – s 11B(1).
Subsection 11B(3) sets out those factors favouring access to the document:
(a)promotes the objects of the Act, including the matters set out in ss 3 and 3A;
(b)informs debate on a matter of public importance;
(c)promotes effective oversight of public administration; and
(d)allows a person access to his or her own personal information.
Paragraph 6.10 of the Guidelines contains a non-exhaustive list of other factors favouring disclosure. For present purposes, the only additional factor of particular relevance is that access would reveal the reason for a government decision and any background or contextual information that informed the decision.
CONSIDERATION
Unreasonable Disclosure – s 47F
Information about an identified individual
The first issue is whether the information in question concerns a person who is reasonably identifiable. This flows from the definition of personal information which is set out above. In this matter it is not contested that the information being sought identifies Ms Sanders.
However, the fact that a person is identifiable does not exhaust the task required of a decision-maker. If it did, then the factors enumerated in s 47F(2) would be otiose. A clear reading of s 47F leads to the conclusion that the starting point in determining if the conditional exemption applies is the identification of a particular person. If a decision-maker is satisfied that this is the case, then the next task is to evaluate if the disclosure of the information being sought would amount to an unreasonable disclosure and consideration is given to the factors outlined in s 47F(2).
Unreasonable disclosure of information – s 47F(2) factors
The next issue is whether the disclosure would be an unreasonable disclosure of information. Those matters which a decision-maker must have regard to are contained in s 47F(2) which are set out above.
The Applicant submits (ASFIC para 17) that each of the factors relating to s 47F point to the conclusion that the disclosure of the material in Document 17 would involve the unreasonable disclosure of Ms Sanders’ personal information.
The Respondent submits (RSFIC p. 2) that in relation to the factors in s 47F(2)(a) – (c):
“… it is well known within the Scenic Rim community that Ms Sanders was engaged in an Area Manager role for the ABS 2016 Census as she was required to declare this on her publicly accessible Councillor Register of Interests with the Scenic Rim Regional Council, as she was an elected Councillor concurrently with the ABS Census role…”
The Applicant submits (ASFIC para 18), in contradistinction, that the information in dispute in Document 17 is not well known or available from publicly accessible sources. It is submitted that whilst Ms Sanders is known by the Respondent to have been associated with the recruitment process, the focus of s 47F(2)(b) is what is known by the public generally, rather than a particular FOI applicant. Further, it is submitted, that it is not a matter of general public knowledge that Ms Sanders was associated with this recruitment process or the more specific information about Ms Sanders contained in Document 17.
The Applicant (ASFIC para 18) drew the Tribunal’s attention to the decision of Utopia Financial Services Pty Ltd and Australian Securities and Investments Commission [2017] AATA 269 and observed that the focus of s 47F(2)(b) is what is known by the public generally, rather than the FOI applicant. In that matter, Deputy President Forgie said (at [237]):
“Whether the person to whom the information relates is known to have been associated with the matters dealt with in the document might be argued to be limited to the knowledge of the person requesting access. Coming as it does, though, between the criteria that clearly require regard to be had to the knowledge accessible publicly and the extent to which information is well-known, it seems to me that the issue whether the person is known to be associated with the matters in the document sought is also assessed by reference to the public generally. It is not assessed by reference to the person requesting access to the document.”
In this matter the outstanding material in Document 17 is not well known and it is not clear to the Tribunal that there is sufficient evidence to confirm that Ms Sanders is known to be associated with the matters dealt with in the outstanding material in Document 17. Finally, the outstanding information is not publicly accessible.
The Respondent submits that Ms Sanders is “well known” within the Scenic Rim community in her capacity as an Area Manager for the ABS 2016 Census. In support of this broad proposition, the Tribunal is referred to the publicly accessible Councillor Register of Interests for the Scenic Rim Regional Council.
Attachment A to the Respondent’s submissions is a letter she received from the Chief Executive Officer (CEO) of the Scenic Rim Regional Council dated 17 June 2016. Ms Sanders was, until the local government elections of 2016, a Councillor of that Council. The Respondent lodged a complaint regarding the absence of Ms Sanders recording that she had accepted a position with the ABS. Apparently Ms Sanders had, correctly, lodged a form with the requisite information on 5 January 2016, but due to a processor error it was not captured in the updated register upload on 11 March 2016.
The Tribunal does not accept that there would have been broad public knowledge within the Scenic Rim community that Ms Sanders was an employee of the ABS, let alone that she had a specific role to play with recruitment processes within the ABS. The register of interests referred to the Respondent was, it appears, deficient in not containing information regarding Ms Sanders’ ABS employment, and, in any event, following her departure from the Council following the 2016 elections, she no longer was a Councillor with a public profile or whose personals interests were recorded in a public register.
The Tribunal notes that there is an absence of any probative evidence that would support the proposition that Ms Sanders was publicly known to have had a role to play with the matters dealt with in Document 17, or indeed, any of her other duties within the ABS.
Other factors
The first additional factor in the Guidelines is the nature, age and current relevance of the information.
The Tribunal notes the Respondent’s submission that the relevance of the outstanding material in Document 17 relates to her acceptance or otherwise of an offer for compensation made by the Minister responsible for the ABS on 21 February 2019. All that can be sensibly said, is that from the Respondent’s viewpoint it is a piece in the puzzle and in that sense could inform her on the desirability or otherwise of accepting (or not) the settlement terms. Whether the Tribunal accepts this proposition is dealt with below.
The second additional factor of relevance in this matter is any detriment that disclosure may cause to the person to whom the information relates.
In her letter of 27 May 2019 Ms Turton, on behalf of Ms Sanders, asserted that the outstanding material would be likely to be used inappropriately leading to outcomes detrimental to Ms Sanders’ private wellbeing and public reputation as well as her future plans in publicly elected local government roles. This assertion was made in the context of views that were expressed in emails about an investigation that, unknown to the persons exchanging the emails, had concluded and which did not make adverse findings against Ms Sanders.
It is manifestly clear to the Tribunal, having perused the outstanding material in Document 17, that although its release would not have the dire consequences claimed by Ms Turton, nonetheless its release could result in an erroneous and damaging view being formed about Ms Sanders. In matters such as these it is difficult to objectively quantify the extent of the possible detriment; however, it is tolerably clear to the Tribunal that the reputation of Ms Sanders could be damaged by its release, particularly as email exchanges were predicated largely on ill-informed speculation.
The third additional factor is whether there is opposition to the disclosure of the information.
Ms Turton explained at length in her letter of 27 May 2019 the opposition of Ms Sanders and her family to the release of the outstanding material. Indeed, in the following letter of 4 June 2019, Ms Turton quotes from Ms Sanders who expressed fears for her safety if the Respondent’s behaviour escalates. The Tribunal assumes from this that it is Ms Sanders’ concern that the release of the outstanding material will re-ignite the Respondent’s public campaign against the ABS. Without commenting on the validity or otherwise of the concerns raised by Ms Sanders, it is manifestly clear, that Ms Sanders is strongly opposed to the release of the outstanding material and the Tribunal has before it evidence which suggests that this opposition is based on a range of factors from concerns about loss of public reputation, harassment, personal safety and loss of potential roles in public life.
The fourth relevant additional factor is the potential dissemination and use of the information.
Ms Turton expressed concerns about the possible dissemination and misuse of the outstanding material should it be released, although the Tribunal has noted and taken into consideration the Respondent’s statement (RSFIC p. 3) that she has no intention of disseminating any of the released material, with the exception of the Minister responsible for the ABS, if it is relevant.
The fifth relevant additional factor is any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information.
The Respondent addressed this factor (RSFIC p. 3) and provided the following information:
“… the intended potential use of any further information released is to further my Claim for Detriment Caused by Defective Administration, a long-running dispute which resulted in an offer of compensation on 21 February 2019. The remaining disputed content of Document 17 may assist in my negotiations with the Minister re the quantum of the compensation offer. I have no wish to cause any distress to Ms Sanders. Given her performance as a Councillor for the period 2012 to 2016 and subsequent non re-election, she does not need any assistance to engender a less than flattering image in the community. I do not intend to disseminate any information released to other then the relevant Minister.”
The Tribunal accepts that it is the stated intention of the Respondent to only use the outstanding material (if released) for the limited purpose of furthering her settlement negotiations with the Minister responsible for the ABS.
Finally, there is the factor whether disclosure of the information might advance public interest in government transparency and integrity.
Insofar as the outstanding material involves the exchange of ill-informed speculation between officers of the ABS it could not be said that its release would advance public interest in government transparency and integrity.
CONCLUSION
In weighing up the factors outlined above it is necessary at the outset to note that there is a significant contrast with the concerns raised by the Applicant and Ms Sanders on the one side about the release of the outstanding material in Document 17 and the submission of the Respondent.
The Respondent raises a number of fair points about why the outstanding material should be released. Importantly, she emphasises that she believes its release may assist her to make an informed decision about a settlement offer, and, further, she expressly declares that she has no intention of broadly disseminating the material and, accordingly, the concerns raised by Ms Sanders are misplaced. These submissions weigh in favour of finding against a conditional exemption for personal privacy pursuant to s 47F.
Conversely, the Applicant points out:
(a)the information is not well known – s 47(2)(a);
(b)Ms Sanders is not well known to be associated with the matters dealt with in Document 17 – s 47(2)(b);
(c)the information is not available from publicly accessible sources – s 47F(2)(c);
(d)there is potential detriment to Ms Sanders from the release of the information;
(e)Ms Sanders and her family oppose the release of the information;
(f)although the Respondent states she has no intention of more broadly circulating the material, the Act does not restrict any subsequent use or dissemination of the information. In short, if given the information, the Respondent would be liberty to disseminate it in any manner inconsistent with her stated intention; and
(g)the disclosure of the information would not advance the public interest in government transparency and integrity.
At the heart of the Respondent’s FOI application is a desire to obtain all relevant information in order to conclude her Claim for Detriment Caused by Defective Administration.
Having considered the outstanding material, the Tribunal, noting the Applicant’s submission (ASFIC para 21) that the ABS has already accepted that the recruitment process was defective, does not believe that its release would materially assist the Respondent. The outstanding material is in fact ill-informed speculation. It is inconceivable that knowing this, the Respondent is at a disadvantage in determining whether to settle her claim without actually gaining access to the material.
Having considered all of the above matters, the Tribunal finds that the disclosure of the outstanding material in Document 17 would be an unreasonable disclosure of personal information.
The public interest – ss 11A and 11B
As outlined above, s 11B(3) provides a non-exhaustive list of factors favouring release. In this matter, having regard to the evidence, I am not satisfied that the release of the outstanding material would materially:
(a)inform debate on a matter of public importance; or
(b)promote efficient oversight of public expenditure.
On the balance, I am satisfied that release of the outstanding material would allow the Respondent to access her personal information.
The Applicant rightly acknowledges (ASFIC para 27) that there is a general public interest in ABS documents being publicly available so as to encourage public debate and promote oversight of the ABS. Nonetheless, the Applicant submits that the release of the outstanding material in Document 17 will have negligible contribution to advancing either the factors outlined in s 11B(3) or the factors outlined in the Guidelines referred to previously. The Tribunal agrees with this submission insofar as it is limited to factors 11B(3)(a)-(c).

The Guidelines state (para 6.5):
“The public interest test is considered to be:
·something that is of serious concern or benefit to the public, not merely of individual interest
·not something of interest to the public, but in the interest of the public
·not a static concept, where it lies in a particular matter will often depend on a balancing of interests
·necessarily broad and non-specific, and
·related to matters of common concern or relevance to all members of the public, or a substantial section of the public.”
In this matter it could not be said that the release of the outstanding material is of serious concern to the public or would be productive of benefits to the public. This material is of great interest to the Respondent, but its release would attract negligible public interest.
It also cannot be said that the release of the outstanding material would be in the interest of the public. It is hard to conceive how the release of two sentences of email exchange by ABS staffers who were engaging in ill-informed speculation about an internal review would advance the public interest in any way whatsoever.
Finally, the subject matter of the application does not concern matters of common concern or relevance to all members of the public or a substantial sector of the public. Whilst employment disputes and internal investigations into how such disputes arose and means to better improve practices are matters of common concern, the outstanding material does not address any generic issue of that type.
The Applicant also outlined (ASFIC) three public interest factors which it was submitted weighed against disclosure, namely:
(a)disclosure could reasonably be expected to prejudice the protection of Ms Sanders’ right to privacy;
(b)disclosure could reasonably be expected to prejudice Ms Sanders’ fair treatment; and
(c)disclosure could reasonably be expected to prejudice a management function of the ABS.
The Tribunal accepts this submission of the Applicant.
Despite the Respondent stating that should she gain access to the outstanding material in Document 17 she would not disclose it to a wider audience and would only utilise it for the purposes of settling her compensation claim, there is no guarantee that in due course the outstanding material may be released to a wider audience. The risk of this occurring is sufficiently real, having regard to the ongoing animus between the Respondent and Ms Sanders as disclosed in the evidence, to find that it is not in the public interest that the outstanding material in Document 17 be released to the Respondent.
It is also the case that the information in question was generated by ABS employees who would have had the reasonable expectation that the sensitive contents of the correspondence would not be disclosed beyond the limited audience it was aimed for. Insofar as the disclosure of this information could have a negative impact on the confidence in ABS staff to frankly express views, it could be said that the disclosure of the material could reasonably be expected to prejudice a management function of the ABS.
It is the case, as was recognised by the Tribunal in Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900, that there is a public interest in ensuring serious allegations against officers in public employment are properly investigated. This public interest is promoted by providing transparency in such processes, subject to the privacy of those concerned.
As the Applicant submitted (ASFIC para 33), the release of the outstanding material in Document 17 will not achieve the aim of greater transparency thereby ensuring complaints of a serious nature are properly and appropriately investigated and dealt with.
In this matter the outstanding material was an exchange of speculation about the outcomes of an investigation, which, unbeknown to the persons involved, had already concluded and with recommendations at odds with the speculation. In short, the disclosure of the outstanding information will not promote greater transparency and will not assist in ensuring that complaints against officers in public employment are properly investigated. Indeed, as highlighted above, the release of this information, may have the opposite effect, and result in ABS employees being less willing to engage in a frank exchange of ideas.
In balancing the public interest factors for and against, I am satisfied that the public interest factors against disclosure outweigh the public interest factors favouring disclosure.
DECISION
The decision under review is:
(a)set aside in relation to the first and fourth sentences of the first full paragraph on page 2 in Document 17 (the outstanding material); and
(b)
substituted insofar as the outstanding material is an exempt document under s 47F of the Freedom of Information Act 1982.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..................................[SGD]......................................
Associate
Dated: 6 December 2019

Date of Hearing: On the papers

Date final submissions received: 30 September 2019

Solicitors for the Applicant: Ms Sarah Pitney
Australian Government Solicitor

Respondent: Self-Represented

Date of Hearing:	On the papers
Date final submissions received:	30 September 2019
Solicitors for the Applicant:	Ms Sarah Pitney Australian Government Solicitor
Respondent:	Self-Represented