Lackner and Department of Employment and Workplace Relations
[2004] AATA 414
•23 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 414
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/417
GENERAL ADMINISTRATIVE DIVISION
Re: SUSAN LACKNER
Applicant
And: DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Mr G.D. Friedman, Member
Mr W.G. McLean, Member
Date: 23 April 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
FREEDOM OF INFORMATION - Job Network providers - participation reports - breaches imposed on job seekers by Centrelink - division between not‑for‑profit and for‑profit providers - whether documents available - whether exempt
Freedom of Information Act 1982
REASONS FOR DECISION
23 April 2004 Mr B.H. Pascoe, Senior Member
Mr G.D. Friedman, Member
Mr W.G. McLean, Member
This is an application to review a decision of the respondent (Department of Employment and Workplace Relations) refusing access to certain documents or information requested by the applicant, Ms S. Lackner, pursuant to the Freedom of Information Act 1982 (the Act).
At the hearing Ms Lackner was unrepresented and the respondent was represented by Mr P. Hanks qc and Mr M. Moshinsky, of counsel.
Ms Lackner is the author or co‑author of several publications relating to job network participation reports and Centrelink penalties through the Centre for Applied Social Research at the School of Social Science and Planning, RMIT University. By letter of 11 December 2002, she made her initial request under the Act. On seeking internal review of the response by letter of 10 January 2003, Ms Lackner requested a broader range of documents than originally sought. After filing an application for review with the Tribunal, Ms Lackner reformulated her request by letter of 11 August 2003 as follows:
I seek data relating to breaches recommended (through participation reports) by private for‑profit job network providers and non‑for‑profit job network providers that are imposed and/or revoked by Centrelink. Documents showing participation reports that result in Centrelink administering a rate reduction or a non‑payment period are also within the scope of my request and should include for both for‑profit and non‑for-profit job network providers. I also seek data on the total amount of job network clients that are subject to mutual obligation criteria for both profit and non‑for‑profit job network providers. Specific age ranges and time frames within the request are noted below.
Age Range:
Under 18 years
18‑20
21‑24
25-29
30-39
40-49
50-5960 years and over
Time Frame
1 July 2000 to 30 June 2001
1 July 2001 to 30 June 2002
1 July 2002 to 28 February 2003
Since the department has access to participation report outcomes for individual job network providers that is in the scope of my request (as noted in your letter dated 21 March 2001) I also seek these individual job network providers participation report outcomes. These documents need to include identification of individual job network providers allowing classification of them into profit and non‑for‑profit providers thus fulfilling part of my request. I also seek data on the total amount of job network clients that are subject to mutual obligation criteria for individual job network providers. Again, the data will need to identify specific job network providers allowing calculation on for‑profit and non‑for‑profit and thus once again fulfilling a requirement of my FOI request.
The respondent was content to proceed at the hearing of Ms Lackner's application on the basis of the request as reformulated by that letter.
In its statement of facts and contentions, prepared for the hearing, the respondent categorised the request as follows:
(a)Documents:
(i)relating to breaches recommended (through Participation Reports) by private for‑profit Job Network Providers and not‑for‑profit Job Network Providers that may be imposed or revoked by Centrelink;
(ii)showing Participation Reports that result in Centrelink administering a rate reduction or a non‑payment period for both for‑profit and not‑for‑profit Job Network Providers;
(iii)showing the total amount of job network clients that are subject to Mutual Obligation criteria for both profit and not‑for‑profit Job Network Providers;
categorised in accordance with the following ages and time periods:
(iv)Age Range:
(A)Under 18 years:
(B)18-20 years;
(C)21-24 years;
(D)25-29 years
(E)30-39 years;
(F)40-49 years;
(G)50-59 years;
(H)60 years and over.
(v)Time frame:
(A)1 July 2000 to 30 June 2001;
(B)1 July 2001 to 30 June 2002; and
(C)1 July 2002 to 28 February 2003
(b)Documents:
(i)being Participation Report outcomes for individual Job Network Providers classified according to each individual Job Network Providers (allowing classification by the Applicant of each individual Job Network Providers into profit and not‑for‑profit providers); and
(ii)showing the total amount of job network clients subject to Mutual Obligation criteria classified according to each individual Job Network Providers (allowing calculation of each individual Job Network Providers into profit and not‑for‑profit providers);
categorised in accordance with the same age and time categories referred to in paragraph 1.3(a)(iv) and (v) above.
The following definitions were provided by the respondent:
(a)Job Network Provider means an organisation contracted by the Respondent under an Employment Services contract to provide Job Network services as part of a national network of private, community and government organisations funded by the Respondent to help job seekers find sustainable employment, particularly those who are long‑term unemployed.
(b)Mutual Obligation means the additional mutual obligation activities people aged between 18 and 49 years who have been receiving unemployment payments for six months or more, are required to undertake to supplement their job search.
(c)Participation Report means a report generated by Job Network Provider [or community work coordinators] to notify Centrelink of any non‑compliance or possible non‑compliance by a job seeker with their obligations including activity test obligations, Mutual Obligations and administrative obligations. A participation report may result in Centrelink imposing a breach penalty under the Social Security Act 1991.
There was no dispute as to the way in which the respondent had categorised the request or the definitions used.
Certain aggregate information was provided to Ms Lackner as an attachment to the reviewable decision and in subsequent letters. The balance of the documents sought was said either not to exist or exempt under the Act. The information provided comprised:
(a)a schedule of total participation reports for the years ended 30 June 2001 and 30 June 2002 and the eight months to February 2003. This schedule showed the total number of reports, the number where a penalty was imposed by Centrelink and the percentages of penalties involving reduced benefits compared with cessation of benefits;
(b)a schedule setting out reasons provided by Centrelink for not imposing a breach and the number for each period classified by those reasons;
(c)a schedule setting out, by age groups, the information under (a) above; and
(d)a schedule setting out the total number of job seekers who were activity tested recipients of either newstart allowance or youth allowance (other) and eligible job network services in each of the years ended 30 June 2000, 2001 and 2002, classified by the age groups.
Mr D. Alexander is the National Manager, Participation Coordinator and Mature Age with Centrelink. He was unable to say whether the information requested by Ms Lackner was held by the respondent but was clear that Centrelink does not maintain data on participation reports and the imposition of breaches by separate Job Network providers. He said that Centrelink does not maintain records of participation reports as between for‑profit and not‑for‑profit organisations with its concentration on maintaining data on different customers with different levels of activity tests. Mr Alexander noted that a participation report is simply a report of a failure by a job seeker to keep an appointment or not arrive for an offered job but does not itself recommend any action. Centrelink makes the decision of whether any penalty should be imposed. It often obtains an adequate explanation from the job seeker so as not to impose a penalty. While participation reports can lead to the imposition of a penalty, penalties can be imposed as a result of circumstances other than a participation report. Mr Alexander accepted that there had been a high rate of rejection of participation reports in the past, but believed that there had been a considerable improvement in the administration of this area by Centrelink.
Mr J. Manthey is the Director of the Budget and Performance Section of the respondent. He is responsible for producing management information from the Integrated Employment System (IES) which is the mainframe transactional system developed by the respondent to manage all employment‑related services. His evidence was that IES does not have the capacity to produce the documents requested by Ms Lackner as the data captured does not identify the clients that are subject to mutual obligations. Mr Manthey said that the documents provided to Ms Lackner showing aggregate numbers were derived from IES. When asked about a statement by the Productivity Commission in its Independent Review of the Job Network of June 2002 that "Job Network providers with a profit‑orientation had significantly higher breaching rates (by 12 percentage points) than those that did not", Mr Manthey said that this information could not have been obtained from IES and he had no knowledge of the source of this comment. Equally, he maintained that a reference in a publication of the respondent showing an analysis of employment services contracts and stating that 54 per cent of Job Network members were community/not‑for‑profit organisations and 43 per cent were commercial organisations did not come from IES nor his area of responsibility.
Ms F. Novitski is Team Leader of the Purchasing Operations and Policy Team in the Employment Services Purchasing Group of the respondent. She said that, as part of the tender process for Job Network providers, each tenderer was requested to identify its status according to the fields contained in the tender documents. These fields related to the type of organisation but did not specifically refer to for‑profit or not‑for‑profit status. Ms Novitski said that, for the purposes of the publication setting out percentage of each type, a spreadsheet was prepared based on assumptions relating to the type of organisation and experience of previous contracts. This spreadsheet has since been removed and no list currently exists. She was not aware of where the Productivity Commission obtained the figures in its report but thought it may have been an educated guess based on the publicly available list of Job Network providers.
Based on the evidence of Mr Manthey and Ms Novitski, we are satisfied that the respondent does not possess documents nor can such documents be produced from its computer database which provides the information requested, segregated between not‑for‑profit and for‑profit Job Network providers. Neither does the respondent possess nor can produce documents showing the number of job network clients subject to Mutual Obligation criteria. Consequently, we find that the documents requested to that extent do not exist and the decision refusing access on that ground pursuant to s 24A of the Act should be affirmed.
The respondent concedes that documents showing Participation Report outcomes for individual Job Network providers are available or can be produced. However, the respondent took the view that such documents were exempt under s 40(1)(d) and s 43(1)(c) of the Act. Under s 40(1)(d), a document is an exempt document if its disclosure would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. The section does not apply to a document the disclosure of which would, on balance, be in the public interest. Section 43(1)(c) of the Act provides that a document is an exempt document if its disclosure would disclose:
...information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information—
(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or
(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.4
Mr D. Thompson is the Chairperson of the Board of the National Employment Services Association, which represents the majority of providers of Job Network Services. He is also the Chief Executive Officer of Jobs Australia, the national peak representative body for more than 260 non‑profit providers of public employment services. Mr Thompson gave evidence that Job Network providers generally do not want reporting data to be publicly released as it may be misleading and unclear and have unintended and negative consequences for the market. He commented on the distinction between participation reporting by employment services providers and the application of breaches resulting in loss of newstart allowance and youth allowance by Centrelink. He noted that there was no direct connection as the providers do not impose or recommend the imposition of a breach, there may be several reports in relation to the one person and many reports involve problems with the contact details of a person which are resolved, subsequently, by Centrelink. Mr Thompson considered that any data seeking to compare participation reports with the imposition of breaches would need to be adjusted for the actual number of people involved and breaches imposed which were revoked subsequently on internal Centrelink review or on appeal to the Social Security Appeals Tribunal or to this Tribunal. He stated that Job Network providers have scope to attract a caseload of up to 20 per cent greater than their allocated proportion of market share and that job seekers may choose their own provider. Providers operated in different geographical areas, varied significantly in number of clients and operated in different segments of the market.
Mr Thompson believed that the number of participation reports by a provider needed to be assessed by taking into account all of these differences to avoid being misleading. He believed that release of data showing the number of participation reports for each provider could be incorrectly interpreted by job seekers in their choice of provider and have an adverse effect on the market, particularly by less motivated job seekers choosing a provider with an apparently lower rate of participation reporting. On the belief that the release of such data could influence job seeker flows, he considered that this would be reflected in an impact on the Star Rating system, which was an essential part of the employment services market. Such impact, in his view, would affect the providers’ current business, the future allocation of business to a provider and, potentially, undermine government policy on participation requirements and reporting procedures. Mr Thompson was not opposed to release of data if it took into account the number of job seekers, rather than the number of participation reports, the actual breaches finally imposed after all available reviews, the relative position of the provider in the market, etc. However, he understood that such information was not currently available.
Mr D. Pigram is the Director of Performance Analysis within the Employment Services Performance Branch of the respondent. During the past four years, he has managed the development, calculation and publication of Job Network Star Ratings (Star Rating). He said that the Star Rating system rates job network service providers according to their relative success in meeting the key performance indicators specified in the Employment Services Contract. Mr Pigram said that the system had been developed with the assistance of several other organisations, has been independently reviewed and has been refined after wide consultation. He said that the system allows Job Network providers, operating anywhere in Australia, to be directly compared. The ratings are released and available to job seekers in all Centrelink outlets and Job Network sites. Mr Pigram was firm that the Star Rating system is critical to both the Employment Services tender process and any subsequent re‑allocation of business. He was of the opinion that details of participation reporting levels for individual providers could influence job seekers' choice of a provider and have an impact on a provider's Star Rating and the performance management and business allocation system of the respondent. Mr Pigram believed that there was no way in which any corrupting impacts from the release of participation reporting data could be properly accounted for when calculating Star Rating and any public benefit associated with such release would be far outweighed by the risks and potential costs to the appropriate management of the Employment Services contracts.
It was contended by the respondent that disclosure of the number of participation reports by each Job Network provider was exempt under s 43(1)((c)(i) of the Act as it could reasonably be expected to unreasonably affect Job Network providers in respect of their lawful business, commercial or financial affairs. This was said to be so because:
[a]there is a real risk that some job seekers (that is, job seekers with relatively low work motivation and work skills) would use the participation report data and select Job Network Providers who appear to be less rigorous in their monitoring of compliance with requirements;
[b]the selection of Job Network Providers by reference to that information would distort the process by which job seekers choose between Job Network Providers, by increasing the proportion of "high cost" and "low return" job seekers selecting those Job Network Providers with relatively low levels of participation reporting;
[c]that skewing of the profile of job seekers selecting particular Job Network Providers would place downward pressure on the incomes of Job Network Providers with relatively low levels of participation reporting (because payments are made by reference to employment outcomes);
[d]there would also be downward pressure on Job Network Providers' Star Ratings - which would reduce the liability of those Providers to attract job seekers with relatively high work motivation and work skills and would accentuate the downward pressure on their incomes.
It was submitted that the data on the number of participation reports would be misleading as it would not reveal or be capable of being correlated with the breaches imposed by Centrelink and would not reflect the number of job seekers involved, the location, client mix or total client numbers of the provider. It was submitted further that the information on the number of participation reports of each Job Network provider was exempt under s 40(1)(d) of the Act. The respondent argued that the release of the information would have the effect of distorting the quality of the assessment provided by the Star Rating system and so distort the quality of the information provided to the job seekers and degrading the information used by the respondent in the selection of tenderers. Finally, it was submitted that the balance of public interest was against disclosures because of the tenuous relationship between the number of participation reports made by providers and the result of those reports in the breaches imposed by Centrelink. It was said that there was a risk of confusion and misunderstanding as the reports provide information not recommendation, are acted upon or not acted upon by decision of Centrelink as an independent role and the data cannot be adjusted for the variations between providers.
Ms Lackner submitted that it was in the public interest to have the information provided. Her submission argued that, in the year ended 30 June 2003, 80 per cent of participation reports "were rejected by Centrelink as invalid". It would appear that this percentage was arrived at by comparing the total number of reports from providers with the total number of breaches imposed. However, this clearly ignores the fact that multiple reports can be provided in relation to one job seeker and that the participation reports are simply that, reports. The imposition of a breach is a decision of Centrelink, which may or may not be the result of a participation report. Ms Lackner maintained that she is seeking the information requested to allow the public to scrutinise the operations of an agency and to make its own judgment as to whether the agency is discharging its functions properly. She confirmed that she is seeking to establish the validity of participation reports, the relationship of such reports to imposition of breaches and the comparison of these between not‑for‑profit and for‑profit agencies. We are satisfied on the evidence that the information requested is simply not available. The only information available is the raw data of the number of participation reports provided by each Job Network provider. We are satisfied that this data would not enable Ms Lackner to establish the results she is seeking.
On the evidence provided, which we accept, the provision of the data available is exempt under s 40(1)(d) and s 43(1)(c) of the Act. We are satisfied that both provisions apply for the reasons advanced by the respondent. Further, we are satisfied that the provision of the information which, without significant refinement, would be misleading and, on its own, of no major significance and would not be in the public interest. As indicated earlier, we are satisfied that the balance of the information requested by Ms Lackner is not in the possession of the respondent. It is acknowledged that information in the form suggested by Mr Thompson, which would require a combined and sophisticated effort of the respondent and Centrelink, may well be of value. However, it does not exist currently to provide Ms Lackner with that which she is seeking.
It follows that the decision under review should be affirmed.
I certify that the seventeen (17) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 15 December 2003
20 February 2004
Date of Decision: 23 April 2004
Solicitor for the applicant: NIL – IN PERSON
Counsel for the respondent: Mr P. Hanks qc
Mr M. Moshinsky
Solicitor for the respondent: Messrs Minter Ellison
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