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

Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557 (9 November 2020)

Division:FREEDOM OF INFORMATION DIVISION
File Number: 2019/4000
Re:Chief Executive Officer, Services Australia
APPLICANT

AndJustin Warren
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 9 November 2020
Place:Melbourne

The Tribunal decides to:

1.set aside the decision of the Information Commissioner dated 6 June 2019; and
2.substitute a decision that:
(1)apart from any reference to the names of Mr Britton and Ms Harfield, the Risk Management Plan, dated 6 August 2015, Open Issues Summary, dated 2015, Progress Report dated 2016 and Issues Summary are exempt from disclosure under ss 47F and 11A of the Freedom of Information Act1982 in so far as they reveal the names and telephone numbers of any individual identified in them and a signature; and
(2)the Agency give the respondent access to a copy of the four documents from which:
(a)all names than those of Mr Britton and Ms Harfield;
(b)all telephone numbers;
(c)one signature; and
(d)the file path (other than the file name) under the heading “Document location” on page 2 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan”;

have been deleted.

……………[sgd]…………………..

Deputy President S A Forgie

Catchwords

FREEDOM OF INFORMATION – review of decision of Australian Information Commissioner that documents are not exempt – whether documents conditionally exempt under section 47F of the Freedom of Information Act 1982 – whether access would involve unreasonable disclosure of personal information – whether public interest in releasing names and phone numbers – decision set aside and substituted

Legislation

Acts Interpretation Act 1901; s 13; s 19D

Administrative Appeals Tribunal Act 1975; s 42C

Administrative Decisions (Judicial Review) Act 1977

Commonwealth of Australia Constitution Act

Freedom of Information Act 1982; s 3; s 4; s 11A; s 11B; s 31B; s 47C ; s 47E; s 47F; s 55K; s 93A

Freedom of Information Act 1969 (NSW)

Freedom of Information (Amendment) Act 1992

Freedom of Information Bill 1981

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2009

Ombudsman Act 1976

Public Governance, Performance and Accountability Act 2014; s 13(3)(c)

Privacy Act 1988; s 6

Public Governance, Performance and Accountability Rule 2014; r 9

Public Service Act 1999; s 10; s 13; s 22; s 72

Work Health and Safety Act 2011; s 19

Cases
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149; 133 ALR 744; 22 AAR 295; 40 ALD 255
Comcare v Banerji [2019] HCA 23; (2019) 93 ALJR 900
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
FG and National Archives of Australia [2015] AICmr 26
Jorgensen v Australian Securities and Investment Commission [2004] FCA 143; (2004) 208 ALR 73
Justin Warren and Department of Human Services (No 2) [2019] AICmr30
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 229 ALR 187; 80 ALJR 1549
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206
Police v District Court of NSW (1993) 31 NSWLR 606
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Re Lambie [2018] HCA 6
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345
Victoria Police v Marke [2008] VSCA 218
Wiseman v The Commonwealth [1989] FCA 637

Secondary materials
Australian Information Commissioner FOI Guidelines
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Freedom of Information Memorandum No. 94
Hansard Senate 7293; 26 November 2008

REASONS FOR DECISION

Deputy President S A Forgie

Mr Warren made a request under the Freedom of Information Act 1982 (FOI Act) to the then Secretary of the Department of Human Services (Department) for certain documents relating to the programme to match Centrelink data with data from the Australian Taxation Office (ATO) to detect potential overpayment to recipients of Centrelink payments and the recovery of any overpayments (Programme). The Department identified four documents as falling within the request and refused access under s 47E(d) of the FOI Act. When Mr Warren applied to the Australian Information Commissioner (IC) for review of the Department’s decision, the IC decided that the documents were conditionally exempt under ss 47C(1) and 47E(d). She was not satisfied, however, that the disclosure would, on balance, be contrary to the public interest. Therefore, under s 55K of the FOI Act, the IC set aside the Department’s decision and substituted a decision that the documents are not exempt and that the Department was required to give access to the documents.

The Department applied to the Tribunal for review of the IC’s decision but only in respect of the names and, where shown, telephone numbers, of all but two of the Agency’s officers, which it claims are exempt under ss 47F and 11A(5). The Department was renamed “Services Australia” (Agency) in 2019[1] and made an Executive Agency in the Social Services portfolio. It was headed by a Chief Executive Officer (CEO) with effect from 1 February 2020.[2] The validity of the decisions previously made by the Department is preserved and responsibility for the functions previously residing the Department now resides with the Agency.[3] I have decided that, but for two names, all of the names and all of the telephone numbers shown in the four documents, are exempt from disclosure under the FOI document. The documents are otherwise accessible under the FOI Act.
[1] Administrative Arrangements Order 29 May 2019
[2] Administrative Arrangements Order 5 December 2019
[3] Acts Interpretation Act 1901; s 19D

BACKGROUND
Mr Warren’s request

On 14 March 2017, Mr Warren made a request to the Department for certain documents. On 24 March 2017, he modified his request to remove any reference to draft documents so that it read:
“I request the following information relating to the initiative to match Centrelink data with data from the Australian Taxation Office (ATO) to detect potential overpayment and the recovery of those overpayments from citizens. This initiative has been extensively covered by the media using various names including #robodebt and #notmydebt.
- Documents listing identified risks, categorisations (Likelihood, Impact, etc.), and treatments in the period 1 Jan 2016 to 31 Dec 2016. You have previously indicated that these are known more specifically as:
a)Risk Plans
b)Weekly Reports
c)Issues and Escalated Issues Registers
…”[4]
[4] Documents lodged under s 37, Administrative Appeals Tribunal Act 1975 (T documents); T3 at 11, T5 at 14

The Department’s decision on Mr Warren’s request

The Department identified four documents as coming within Mr Warren’s request. They are described as the Risk Management Plan (dated 6 August 2015), Open Issues Summary (dated 2015), Progress Report (2016) and Issues Summary. On 27 July 2017, an officer of the Department authorised under the FOI Act refused access to each in full on the basis that they contained operational information that was exempt under s 47E(d) of the FOI Act and that the public interest in disclosing the information was outweighed by the public interest against disclosure. Mr Warren requested an internal review of the decision, which a different authorised officer affirmed in a decision dated 30 August 2017.

Information Commissioner’s decision on review

During the review, the Department contended that the four documents were exempt under s 47C as well as under s 47E(d). The IC decided on 6 June 2019[5] that the documents were conditionally exempt under s 47C but not under s 47E(d). She went on to find that giving Mr Warren access to the four documents would not, on balance be contrary to the public interest within the meaning of s 11A(5). Therefore, the four documents were not exempt and the Department was obliged to give him access.
[5] Justin Warren and Department of Human Services (No 2) [2019] AICmr30

The Department’s application to the Tribunal

On 4 July 2019, the Department applied to the Tribunal for review of the IC’s decision. I subsequently ordered, on 16 July 2019, that the operation and implementation of the IC’s decision be stayed until the decision made by the Tribunal on review came into effect or until further order.

Variation of the decision under review

The parties reached agreement on some of the issues arising in this matter. That led to my making, on 20 March 2020, a decision by consent under s 42C of the Administrative Appeals Tribunal Act 1975 on those issues. It meant that the Agency no longer maintained that that the four of the documents were exempt from access under the FOI Act except in so far as they disclosed:
(1) the names of the Agency’s staff in each document in issue;
(2)the signature on page 1 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan”; and
(3)the file path (other than the file name) under the heading “Document location” on page 2 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan”.

In accordance with that decision, the Agency gave Mr Warren a copy of the four documents, from which the information still in issue and claimed to be exempt, had been redacted. I varied my stay order to limit its effect to that information.

At the hearing, Mr Davidson indicated that the Agency no longer claimed that the name that appeared nine times on the Risk Management Plan and once on the third page is exempt under the FOI Act. Mr Warren consented to my varying the decision under review to reflect a finding that the name is not exempt under the FOI Act.

Mr Warren no longer seeking access to two pieces of information

I noted in the decision I made on 20 March 2020 under s 42C that Mr Warren no longer seeks access to:
(1)the signature on page 1 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan”; and
(2)the file path (other than the file name) under the heading “Document location” on page 2 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan”.

Even though Mr Warren no longer seeks that information in the four documents, his doing so raises an issue as to how this should best be dealt with in the Tribunal. This is not a situation in which the parties have agreed that the information is exempt and asked me to make a further decision under s 42C of the AAT Act. Without being asked by the parties to do so, it would be inappropriate for me to consider whether the two pieces of information are, or are not, exempt under the FOI Act. At the same time, the IC’s decision that the Agency must give Mr Warren access to the documents in a form containing those two pieces of information remains in place although, for the moment, it is stayed and the Agency is not obliged to act in accordance with it. Given that I do not propose to review the IC’s decision having regard to those two pieces of information, it seems to me that I should continue to stay the operation or implementation of the IC’s decision indefinitely. A stay order would relieve the Agency of the burden of compliance. At the same time, it would have no effect on any decision that the Agency might subsequently make if Mr Warren or anybody else were to request access to that information. Each request is decided on its merits and in the context of the times and circumstances in which it is decided.

THE ISSUES

The names of the Agency staff in each of the four documents remain in issue. Are they conditionally exempt under s 47F? If so, would their disclosure be contrary to the public interest under s 11A(5) of the FOI Act?

THE EVIDENCE

Mr Crain Storen has been employed by the Agency or its predecessor, the Department, since 2014. He is currently the General Manager of Services Australia Transition. Previously, he had been the General Manager of the Compliance Assurance Division (CAD) in the Payments and Integrity Group of the Agency and had held that position since May 2017. The CAD had previously been known as the Customer Compliance Division. It was responsible for a wide range of compliance activities deployed to protect the integrity of payments made by the Agency. It included compliance intervention focusing on income declared by recipients of those payments.

Mr Storen described a data matching program that had been introduced in 2015 to assist in protecting the integrity of Australia’s welfare system. Since 1 July 2015, CAD has completed over one million reviews of discrepancies with third party data sources. Mr Storen said:
“The data matching program plays an important role in protecting the integrity of the welfare system and associated outlays. Data matching has been a part of the approach to protecting payments made by the agencies and predecessor departments since the late 1990s. Improvements have progressively been made in the way the data is gathered, analysed and actioned. The focus of the program has been to address the significant number of current and past recipients where the data indicates the income reported to the department varied from that collected by the ATO.”[6]
[6] Exhibit D at [13]

Mr Storen described the adverse media attention that the data matching program has attracted. A number of the Agency’s staff, who are members of the Senior Executive Service (SES), are responsible for publicly commenting about the about the data matching program by, for example, answering public enquiries. Public commentary on the program is limited to the Minister and to the Agency’s official spokesperson.

Mr Storen said that:
“Since the inception of the program, those staff who have been connected to the data matching program have been subjected to significant and nasty attacks and ongoing harassment from the public, predominantly on social media. … It can be seen that the comments are targeted directly at individuals and attack them personally for their involvement in the data matching program.”[7]
[7] Exhibit D at [20]

In addition, members of the Senior Executive Service (SES) identified in the Agency’s organisation chart, which is available online, have been contacted directly by members of the public through their official email addresses even though they are not persons identified as the persons to whom communications should be directed. Mr Storen annexed examples of the comments to his affirmation.

The four documents relate to the identification and measurement of risks associated with the data matching program. The documents, Mr Storen, are written in language expected in documents of their kind. They refer, for example, to the risk that the Agency would calculate the debt incorrectly. The identification of the risks would be of interest to the media and the public. That interest would mean that there is a risk that the media will publish the documents, or parts of them, that include the names of Agency staff members. Therefore, there is a risk that members of the public may escalate the targeting of particular people on social media. Based on the level of vitriol already displayed in public commentary, Mr Storen considered that disclosure of the names of staff members would expose them to online harassment and abuse as has happened in the past in the context of the data matching program.

Putting aside SES staff, the staff members named in the four documents are not, Mr Storen said, people who have a public profile in connection with the data matching program. The majority who worked on the data matching program continue to work in the Agency and some of them continue to work on compliance related matters. Of SES staff involved in the data matching program, approximately half remain in the Agency while the remainder work elsewhere in the Australian Public Service (APS).

Mr Storen described the effect of disclosure of the names of staff identified in the four documents:
“If the names of those staff are released and they are threatened or harassed by members of the public (which I consider would be likely), in my view this would affect their ability to efficiently carry out their current duties and responsibilities.
Disclosure of their names may also impact their willingness to remain working with the agency, if they do feel safe at work. The disclosure of personal information in the circumstances of a case like this will also affect the agency’s ability to attract and retain future staff if it becomes apparent that they will be placed in a position that results in them being harassed and abused by the public merely because of them performing their duties as public servants.”[8]
[8] Exhibit D at [30]-[31]

Mr Storen referred also to the Agency’s obligations to its employees under the Work Health and Safety Act 2011 (WHS Act). He said that it took those obligations very seriously and takes various steps to meet them. Those steps included policies, training of its staff and the information that the Agency provides to the public about interacting with its staff. Unless under a legislative obligation to do so, employees are given a choice whether to provide their full name or only their first name in response to public enquiries. This choice is part of the Enterprise Agreement between the Department and staff for the period 2017-2020.[9]
[9] Exhibit D; Annexure CAS-1

The Agency has policies on handling customer aggression and harassment from the public, Mr Storen said. He annexed a copy from the Agency’s website sets out the expectations and responsibilities of those dealing with it:
“The moment you step into our service centres or phone our staff, you can expect a level of service that is of a high standard.
Respect
We expect you to be respectful and courteous in our service centres and on the phone, to staff and other customers.
«          treat others as you would like to be treated
«          co-operate with staff
«          use an appropriate speaking level and tone
«          communicate without using threats, abuse or offensive language
«          conduct yourself without using offensive gestures or behaviour.
Our service commitments outline how we will work together to give you options to access available payments and services.”[10]
[10] Exhibit D; Annexure CAS-2

Mr Storen said that the objective of the Agency’s policies is to provide a physically safe and secure working environment and protect the health and wellbeing of staff. The Agency’s policies inform the staff on procedures for handling customer aggression and counterproductive behaviour.[11] They also provide support and assistance available to help staff after an incident.[12] Those policies were annexed to Mr Storen’s affirmation. Staff who work in the compliance area of the Agency receive specific support in relation to their health and wellbeing.
[11] Exhibit D; Annexure CAS-3
[12] Exhibit D; Annexure CAS-4

LEGISLATIVE BACKGROUND

The objects of the FOI Act are set out in s 3, which provides:
“(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate promote public access to information, promptly and at the lowest reasonable cost.”

Under the FOI Act, every person has a legally enforceable right to obtain access in accordance with it to a document of an agency other than an exempt document.[13] As a Department of the Australian Public Service corresponding with a Department of State, the Department was an agency for the purposes of the FOI Act.[14] So too is the Agency because, as an unincorporated body established for a public purpose by an Order-in-Council, it is a prescribed body and so an agency.[15] A person, who wishes to obtain access to a document an agency, make request access to that document.[16] There is no question that the documents requested by Mr Warren are documents of the Agency.[17] The expression “exempt document” is defined in s 4(1). In so far as that definition relates to the documents in issue in this case, it provides that the expression means “a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)”.[18] Section 31B, which appears in Part IV, provides:
“A document is exempt for the purposes of this Part if:
(a)it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Note 1:…
Note 2:…”
[13] FOI Act; s 11(1)(a)
[14] FOI Act; s 4(1): “agency” and “department”
[15] FOI Act; s 4(1): “agency” and “prescribed authority”
[16] FOI Act; s 15(1)
[17] FOI Act; s 4(1): “document of an agency”
[18] FOI Act; s 4(1)

Section 47F, on which the Agency relies to found its claim that the documents are exempt, is a conditional exemption because it is located in Division 3 of Part IV. Only the general rule set out in ss 47F(1), (2) and (3) is relevant and it provides:
“(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, and 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.”

If the documents are conditionally exempt under s 47F, s 11A(5) provides that the Agency must give Mr Warren access to them “… unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.” Section 11B applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interests under s 11A(5). At the same time, it does not limit s 11A(5).[19]
[19] FOI Act; s 11B(2)

The expression “personal information” has the same meaning as it does in the Privacy Act 1988 (Privacy Act):[20]
“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.
Note:Section 187LA of the Telecommunications (Interception and Access) Act 1979 extends the meaning of personal information to cover information kept under Part 5-1A of that Act.”[21]

[20] FOI Act; s 4(1)

[21] Privacy Act; s 6(1)

Section 11B(3) provides:
“Factors favouring access
Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)inform debate on a matter of public importance;
(c)promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.”

Section 11B(4) sets out those factors, to which regard may not be had:
“Irrelevant factors
The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.”
In working out whether access to a document would, on balance be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the IC under s 93A of the FOI Act.[22] The FOI Guidelines (Guidelines) prepared by the IC in accordance with her obligation under s 93A discuss the four factors identified in s 11B(3) as favouring access. After setting them out, the Guidelines expand upon them saying:
“6.18 For example, disclosure of a document that is conditionally exempt under s 47G(1)(a) might, in the particular circumstances, both inform debate on a matter of public importance, and promote effective oversight of public expenditure. These would be factors in favour of disclosure in the public interest. Similarly, it would be a rare case in which disclosure would not promote the objects of the Act, including by increasing scrutiny, discussion, comment and review of the government’s activities.
6.19 The four factors favouring disclosure are broadly framed but they do not constitute an exhaustive list. Other factors favouring disclosure may also be relevant in the particular circumstances. A non-exhaustive list of factors is below.
[22] FOI Act; s 11B(5) and see also s 93A(2)(b)

Public interest factors favouring disclosure
(a) promotes the objects of the FOI Act, including to:
i.inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community
ii.reveal the reason for a government decision and any background or contextual information that informed the decision
iii.enhance the scrutiny of government decision making

(b)inform debate on a matter of public importance, including to:
i.allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official …
ii.reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct
iii.reveal deficiencies in privacy or access to information legislation …

(c)promote effective oversight of public expenditure
(d)allow a person to access his or her personal information, or
i.the personal information of a child, where the applicant is the child’s parent and disclosure of the information is reasonably considered to be in the child’s best interests
ii.the personal information of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household)

(e)contribute to the maintenance of peace and order
(f)contribute to the administration of justice generally, including procedural fairness …
(g)contribute to the enforcement of the criminal law
(h)contribution to the administration of justice for a person
(i)advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies
(j)reveal environmental or health risks of measures relating to public health and safety and contribute to the protection of the environment
(k)contribute to innovation and the facilitation of research.”[23]

[23] Citations omitted

The Guidelines go on to note that s 11B does not set out any factors that are contrary to disclosure but it then states:
“6.20    … However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the application of public interest factors that may be relevant in a particular case.
6.21     Citing the specific harm defined in the applicable conditional exemption is not of itself sufficient to conclude that disclosure would be contrary to the public interest. However, the harm is an important consideration that the decision maker must weigh when seeking to determine where the balance lies.
6.22     A non-exhaustive list of factors against the disclosure is provided below.
Public interest factors against disclosure
(a)could reasonably be expected to prejudice the protection of an individual’s right to privacy, including where:
i.the personal information is that of a child, where the applicant is the child’s parent, and disclosure of the information is reasonably considered not to be in the child’s best interests
ii.the personal information is that of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household) and the disclosure of the information could reasonably be expected to affect the deceased person’s privacy if that person were alive
iii.the personal information is that of a government employee in relation to personnel management and the disclosure of the information could be reasonably be considered to reveal information about their private disposition or personal life. …
(b)could reasonably be expected to prejudice the fair treatment of the individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct
(c)could reasonably be expected to prejudice security, law enforcement, public health or public safety
(d) could reasonably be expected to impede the administration of justice generally, including procedural fairness
(e)could reasonably be expected to impede the administration of justice for an individual
(f)could reasonably be expected to impede the protection of the environment
(g)could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
(h)could reasonably be expected to prejudice an agency’s ability to obtain confidential information
(i)could reasonably be expected to prejudice an agency’s ability to obtain similar information in the futue
(j)could reasonably be expected to prejudice the competitive commercial activities of an agency
(k)could reasonably be expected to harm the interests of an individual or group of individuals
(l)could reasonably be expected to prejudice the conduct of investigations, audits or reviews by the Ombudsman or Auditor-General …
(m)could reasonably be expected to discourage the use of the agency’s access and research services …
(n)could reasonably be expected to prejudice the management function of an agency
(o)could reasonably be expected to prejudice the effectiveness of testing or auditing procedures”[24]
[24] Citations omitted

Paragraph 6.26 of the Guidelines states that, in considering whether access to a conditionally exempt document is contrary to the public interest, it is not enough to list the factors. The decision-maker’s statement of reasons must explain their relevance and the relative weights to be given to them. Reference is made to s 26(1)(aa) of the FOI Act, which requires reference to be made to public interest factors taken into account in making a decision to refuse to give access to a conditionally exempt document.

The effect of s 61 of the FOI Act is that the agency or Minister has the onus of establishing that the decision it has made, or that it seeks to have made on review, is justified.

CONSIDERATION

As Mr Warren has submitted, the Agency did not claim conditional exemption under s 47F of the FOI Act and focused on ss 47C and 47D(d) to claim that the four documents are exempt in their entirety. After further consideration and negotiations with Mr Warren, the Agency has narrowed the material, which it claims is conditionally exempt, and has abandoned its claims under ss 47C and 47(d). It is entitled to change the basis of its claim in this matter just as it is in any other. The Tribunal is obliged to reach the decision that is correct in law and on the evidence and, if a discretionary decision, is obliged to choose from the range of correct decisions that which is the preferable decision. In fulfilling its obligation, the Tribunal is not restrained by the basis on which previous decisions have been made and, unless an enactment provides otherwise, is not restrained by the evidentiary material taken into account at an earlier time.[25] It follows that I may have regard to the Agency’s claim for exemption under s 47F.
Personal information: a person’s name
[25] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 589; 68 per Bowen CJ and Deane J cited with approval in Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345 at [43]- [44]; 300; 398; 477; 1156; 356-357 per Kirby J.
A. Is a name personal information?
The issues centre on the names of members of staff of the Agency. Can names be “… information or an opinion about an identified individual, or an individual who is reasonably identifiable” so that it is “personal information”? In so far as it is relevant, the word “identify” means “to recognize someone … as being a particular person ….”[26] A name is one way in which a particular person may be recognised or established as a particular person. There may be more than one person bearing a name but a name is no less a means of recognition because of that. It is both information that identifies an individual and that is information “about”, and so concerning or relating to,[27] an identified individual. It is personal information as defined in the Privacy Act and so in the FOI Act.[28]
[26] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[27] Chambers
[28] See also Jorgensen v Australian Securities and Investment Commission [2004] FCA 143; (2004) 208 ALR 73 at [43]; 83; Weinberg J. By that time, s 41 provided that “A document is an exempt document if its disclosure under the this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).” The expression “personal information” was defined in s 4(1) of the FOI Act to mean: “… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

B. Does the conditional exemption in s 47F apply to employees of an agency?

Mr Warren referred to Freedom of Information Memorandum No. 94 (FOI Memorandum 94) issued in June 1994 by the Attorney-General’s Department and, in particular, to the following two paragraphs to support his submission that s 47F cannot be relied upon by the Agency to protect personal information relating to one of its employees:
“… It was not Parliament’s intention to provide anonymity for public officials each time one of them in mentioned in a file. That would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability. …”[29]
“… where the name of an official appears in a document in the normal course of the official’s duties. There is no personal privacy interest in that information, and there is no need to consult with officials in such circumstances.”[30]
[29] FOI Memorandum 94; Attachment A at [12]
[30] FOI Memorandum 94; Attachment A at [21]

These passages appear in Attachment A to FOI Memorandum 94. Attachment A set out guidelines for consultation to be undertaken before the release of any documents containing personal information. That consultation took place under s 27A, which had been introduced in the FOI Act, with effect from 1 January 1989, in the context of claims for exemption under s 41.[31] Section 41 itself had been amended in 1992 to remove the reference to the unreasonable disclosure of information relating to the personal affairs of any person to the unreasonable disclosure of personal information about any person.[32] A definition of “personal information” was included in s 4(1) to mean “… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.[33]
[31] Privacy Act 1988; No. 119 of 1988; s 101; Schedule 1
[32] Freedom of Information (Amendment) Act 1992
[33] Act No. 137 of 1991; s 3(d)

With that background in mind, I think it important to set out the context in which each of the passages quoted by Mr Warren appeared in FOI Memorandum No. 94. I have underlined the passages quoted by Mr Warren. The passages are:
“General approach
…
12. Most personal information in government records will require consultation before a decision is made to release it. The mere occurrence of a person’s name, or name and address, in a government file will usually be a matter on which consultation should occur. The occurrence of a person’s name, or name and address, in a government file or database may indicate other information about that person which privacy issues, for example by revealing that a person is client of a department or under investigation by an agency. However if no privacy issue arises, for example because of one of the matters specifically mentioned in paras (a) to (c) of section 27A(1A), consultation will not be necessary It was not Parliament’s intention to provide anonymity for public officials each time one of them is mentioned in a file. That would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability. Consultation gives the person concerned an opportunity to bring to the decision maker’s attention reasons why the information is sensitive which may not otherwise be apparent to the decision maker. …
…

Considerations which must be taken into account in determining whether a person might reasonably wish to contend that the exemption in section 41 applies to personal information
Meaning of ‘well known’
…
20. The considerations referred to in section 27A(1A) and discussed in these guidelines should not be interpreted in a rigid or technical manner as it is impossible to foresee all the different circumstances that may arise. …
21. One major example of circumstances which would be relevant is where the name of an official appears in a document in the normal course of the official’s duties. There is no personal privacy interest in that information, and there is no need to consult with officials in such circumstances. The situation would be different, however, where the information related to something in which there may be some real privacy concern, such as work performance information concerning an individual official, or information relating to alleged disciplinary offences or sexual harassment. Other information relating to an official may be entirely private in nature, such as information relating to an official may be entirely private in nature, such as information relating to the official’s entitlement to bereavement leave because of the death of a close relative. There may, therefore, be many situations where it is not possible to make a clear distinction between information relating to an official in the normal course of his or her duties and other matters. In such situations the official concerned should be consulted before personal information relating to that official is released.”[34]

[34] The substance of s 27A(1A) as enacted in 1994 equates to s 27A(2) in the FOI Act as currently enacted.

This passage is framed in terms of “privacy” whether expressed as “privacy issues”, “privacy concern” and so on. It is true that both the consultation requirements in s 27A and the conditional exemption in s 47F incorporate the word “privacy”. Section 27A is headed “Consultation – documents affecting personal privacy”. Section 47F is headed “Public interest conditional exemptions – personal privacy”. Those words are part of the FOI Act as much as any between its Long Title and its last Schedule[35] but they are words that are not repeated elsewhere in either ss 27A or 47F.
[35] Acts Interpretation Act 1901; s 13

On their face, the headings might be thought to be a carryover from the FOI Act when it was first enacted and the heading to s 41 was “Documents affecting personal privacy”. At that time, the heading to a section was not regarded as part of the FOI Act[36] but it was keeping with s 41, which was then focused on the unreasonable disclosure of information relating to “personal affairs of any person”[37] and not on information or an opinion about an identified individual. That meant that the reference to “personal privacy” was more apt than it is now that the focus of s 47F has broadened so that it is upon the unreasonable disclosure of information or an opinion about an identified individual.

[36] Acts Interpretation Act 1901; s 3; Schedule 1, cl 22 with effect from 27 December 2011; s 2(1), Item 2

[37] See [46] below

Even if that is so, I cannot ignore the headings as they now form part of the FOI Act. As ss 27A and 47F are now drafted, the words of s 27A dovetail with the words of the conditional exemption provided for in s 47F. If it appears to the agency or Minister that a person might reasonably wish to make a contention that the document is conditionally exempt and access to it would, on balance, be contrary to the public interest for the purposes of s 11A(5), that agency or Minister must have regard to s 27A.[38] When viewed in that way, the word “privacy” is still apt when it is understood that its ordinary meaning is “… freedom from intrusion by the public”. To give it any other matter more suited to s 41 as it was previously enacted would detract from the words of the conditional exemption provided for in s 47F.
[38] FOI Act; s 27A(2)

Even if I put aside my reservations about the reliance on the word “privacy” in FOI Memorandum No. 94, I do not think that the passages can be read to support Mr Warren’s submission that s 47F cannot be relied upon by the Agency to protect personal information relating to one of its employees. When read in their context, it is apparent from [21] that FOI Memorandum No. 94 contemplated that there are circumstances in which s 41 might be relied upon by an agency or Minister. The examples given in [21] are not limited to a person’s private life beyond his or her workplace. Indeed, the first example offered in that paragraph relates to a person’s work performance. That is directly related to a person’s workplace. The same is true of disciplinary offences and, in the context, of sexual harassment.

When access would involve unreasonable disclosure
A.Principles

The next question is whether the disclosure of that information under the FOI Act “would involve unreasonable disclosure” of that information. Unlike provisions such as s 47E, it is not enough if disclosure “could reasonably be expected” to involve unreasonable disclosure. Given its context and juxtaposition to the expression “could reasonably be expected”, the word “would” is used in s 47F to express an outcome that, as a matter of probability,[39] “involve[s] the unreasonable disclosure of personal information” i.e. that entails or has as its necessary corollary unreasonable disclosure of personal information.[40]
[39] Chambers
[40] See Victoria Police v Marke [2008] VSCA 218; Maxwell P, Weinberg JA and Pagone AJA at [28] per Maxwell P

Section 47F identifies three matters to which regard must be had in deciding whether disclosure would involve unreasonable disclosure of personal information but what is meant by “unreasonable disclosure of personal information”? That question is answered more easily by considering how to determine when disclosure of personal information would be unreasonable. One answer was put forward by Deputy President Hall in Re Chandra and Minister for Immigration and Ethnic Affairs[41] (Chandra) when he considered the issue in the context of the former s 41(1) of the FOI Act. At that time, s 41(1) provided: “A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).” There was no definition of “personal affairs” and the concept of conditional exemption with its accompanying public interest test had not been introduced. Those differences are not differences of substance in considering the concept of what amounts to unreasonable disclosure if access were given under the FOI Act.
[41] [1984] AATA 437; (1984) 6 ALN N257

Deputy President Hall said in Chandra:
“ My reasons for so thinking are that s.41(1) makes it clear that it is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s.41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
However, consistently with the stated object of the Act (see s.3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.”[42]
[42] [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259

The Full Court of the Federal Court adopted a similar approach in Wiseman v The Commonwealth[43] when it said that “The second limb of s.41(1) requires the making of a judgment as to whether the disclosure would be ‘unreasonable’. … Whether or not disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved.”[44]
[43][1989] FCA 637; Sheppard, Beaumont and Pincus JJ
[44] [1989] FCA 637 at 638

The judgment of Heerey J in Colakovski v Australian Telecommunications Corporation[45] illustrates the balancing exercise that must be carried out under s 41 when he said:
“… it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”[46]
[45] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1; Lockhart, Jenkinson and Heerey JJ
[46] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 441; 123; 273; 11

Three specific matters to which I must have regard in that balancing exercise are set out in s 47F(2). A fourth are any other matters that I consider relevant. In FG and National Archives of Australia,[47] the then IC, Professor McMillan, set out seven matters that might potentially be considered in deciding whether disclosure of personal information under the FOI Act would be unreasonable. They were:
[47] [2015] AICmr 26
“« the nature, age and current relevance of the information
«whether the information is well known or available from other public sources
«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
«whether disclosure of the information might advance the public interest in government transparency and integrity
«the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act.”[48]
[48] [2015] AICmr 26 at [47]

The second point reflects the matters set out in s 47F(2)(a) and (c). I have reservations about the fourth point as it seems to me that the time for consideration of any opposition to disclosure expressed or likely to be held by the person to whom the personal information relates arises at an earlier point. That earlier point comes about in analysing the request and deciding whether it appears to an agency or Minister that the person or person’s legal representative might reasonably wish to contend that the document is conditionally exempt under s 47F and that access to it would, on balance, be contrary to the public interest for the purposes of s 11A(5). That analysis is required when an agency or Minister complies with its obligation under s 27A to consult. I do not need to consider the matter further for the Agency has not relied on it and Mr Warren has not raised it.

B.IC’s Position Paper regarding disclosure of public servants’ names and contact details

At the hearing, Mr Davidson referred to the submission that had been made by the Australian Public Service Commission to the IC in response to a discussion paper she had issued regarding the disclosure of public servants’ names and contact details. Following the hearing, the IC completed its consideration of all of the submissions received in response to the discussion paper and issued a position paper: Disclosure of public servants’ names and contact details in response to FOI requests (IC’s Policy Paper).

There is nothing on the face of the IC’s Policy Paper that suggests that it is intended as guidelines for the purposes of s 93A of the FOI Act but the IC’s policy papers should be regarded respectfully. They play an important part in guiding decision-makers through the FOI Act and reduce the risks of decisions’ being made on the basis of personal predilection and increase the opportunities for consistency.[49] Putting it another way, the adoption and consistent application of policy assists in avoiding:
“... substantial injustice in administrative decision-making, which involves ‘competition or correlativity between rights, advantages, obligations and disadvantages’. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.”[50]
[49] See discussion of policy by the Full Court of the Federal Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206 at [54]; 21-22; 219 per French CJ, Bell, Keane and Gordon JJ
[50] [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206 at [68]-[69]; 24 with reference to the judgment of Deane J in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639 at 647.

Having said that, it is important to ensure that any policy lies within the boundaries of the power given to a decision-maker by the relevant. What Finn J said in Comcare v Labathas[51] in the context of Practice Directions given in the Tribunal is no less apt when regard is being had to policy and decision-makers:
“... It is not open to doubt that that Direction cannot confer a jurisdiction on the Tribunal, a Registrar or a Deputy Registrar which is of larger compass that that which is given the Tribunal by the SRC Act, s 67(8) ...”[52]

[51] [1995] FCA 1702; (1995) 61 FCR 149; 133 ALR 744; 22 AAR 295; 40 ALD 255

[52] [1995] FCA 1702; (1995) 61 FCR 149; 133 ALR 744; 22 AAR 295; 40 ALD 255 at [22]; 154; 749; 300; 259; 259

On 17 September 2020, the Agency made a further submission addressing the Policy Paper. It read, in part:
“The Tribunal will observe that the policy paper endorses the importance of public servants at work and safe at work and safe from harm as a result of their work. The paper also records that there has been a significant evolution of the digital environment, including in the traceability of public servants’ personal lives, which has increased the risk of online harassment for public servants. The paper accepts that where agencies and Ministers have identified work health and safety risks associated with disclosure of staff names and contact details, it may be appropriate to remove that information from documents before release under FOI.
The policy paper goes on to state that ‘[s]pecific concerns about the health, safety and wellbeing of staff are most appropriately addressed under the conditional exemption in section 47E(c) of the FOI Act … This is generally more appropriate that section 47F (personal privacy) for specific concerns about the health, safety and wellbeing of staff …’ This observation cannot form the basis of a finding that s 47F is any less applicable to public servant identifiers. Section 32(a) of the FOI Act provides that exemptions or conditional exemptions should not be construed as limited in their scope or operation in any way by any other exemptions or conditional exemptions.”

Mr Warren responded later the same day drawing attention to the following passages from the Policy Paper:
“The paper cited by the Applicant makes clear that:
‘Public servants are accountable for their decisions, their advice and their actions. Agencies and ministers must ensure staff understand this and that this is made clear in staff induction programs and ongoing training.
Agencies and ministers should start from the position that including the full names of staff in documents released in response to FOI requests increases transparency and accountability of the government and is consistent with the objects of the FOI Act.’
The OAIC also states in this paper:
‘However the circumstances in which disclosure of the names and contact details of public servants may be exempt under section 47E(c) are not unlimited and need to be considered on a case-by-case basis, based on an objective assessment of all available evidence.’
This is consistent with the existing advice provided in the FOI Guidelines, and the interpretation of the FOI Act in case law.”

He referred to the passage, which the Agency had quoted in the second paragraph set out in [54] above, and repeated it with the words omitted from the Agency’s submission. The omitted words are reproduced in bold in the following passage from Mr Warren’s submission when he noted that:
“… the Applicant has redacted certain portions of the paper in its quotation above. The Tribunal may be interested in the unredacted text (with removed sections emphasised):
Specific concerns about the health, safety and wellbeing of staff are most appropriately addressed under the conditional exemption in section 47E(c) of the FOI Act, which is subject to the public interest test. The inclusion of a public interest test under section 47E ensures that the public interest in disclosure remains at the forefront of decision making involving this provision. This is generally more appropriate that section 47F (personal privacy) for specific concerns about the health, safety and wellbeing of staff for the reasons discussed above.
I humbly submit that the choice of redactions is illuminating, and demonstrates once again with the steadfast commitment to transparency, accountability and the public interest that the Applicant is rightly famous for.”

While Mr Warren accurately reproduces the entire passage from the Policy Paper, I do not accept that the Agency’s omission of certain words was, in any way, contrary to notions of transparency, accountability and public interest. The Agency’s submission was directed entirely to the view expressed in the Policy Paper that concerns about the health, safety and wellbeing of staff are most appropriately addressed in the context of a claim for exemption under s 47E(c) rather than s 47F. It did not reject that view but properly drew attention to s 32(a), which ensures that the interpretation of one exemption does not affect the interpretation of another. It provides:
“A provision of this Part by virtue of which documents referred to in the provision are exempt documents, or are conditionally exempt:
(a)shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; …”

The passage omitted from the Agency’s quotation from the Policy Paper was entirely focused on s 47E(c). It is, as the full quotation shows, subject to a public interest test but that fact is of no relevance in the context of a claim for exemption under s 47F. In the context of its claim, the Agency has been quite clear in its submissions that, in considering whether disclosure of the names would be unreasonable, regard must be had to, among other factors, whether disclosure of the information might advance the public interest in government transparency and integrity. Furthermore, it has also been clear that, if the names are conditionally exempt, access to them must be given unless that access would, on balance, be contrary to the public interest. The public interest test under s 11A(5) applies equally to a claim for exemption under s 47F as it does to a claim for exemption under s 47E(c).

The only reference that I can see to s 47F in the Policy Paper is made in the passage as quoted by both the Agency and by Mr Warren. That passage states that it is generally more appropriate to consider specific concerns about the health, safety and wellbeing of staff in the context of s 47E(c), rather than s 47F, “for the reasons discussed above”. No reference is made to any specific passage setting out the reasons but I take it that reference is being made to the need to:
“… balance the objects of the FOI Act, which include making government-held information available to the Australian community and increasing scrutiny, discussion, comment and review of Government’s activities, with the duty of care the Australian Government has to ensure, as far as is reasonably practicable, the health and safety of its workers. …”

The duty of care that the Commonwealth has to its workers comes about because it is subject to the Work, Health and Safety Act 2011 (WHS Act) when it, or a public authority,[53] conducts a business or undertaking.[54] Section 19 sets out the primary duty of care imposed on a person conducting a business or undertaking. It provides:
[53] A “public authority” includes a body corporate established for a public purpose by or under a law of the Commonwealth, a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 and a body corporate prescribed by regulations made under the WHS Act to be a public authority for its purposes: WHS Act; s 4.
[54] WHS Act; s 12
“(1) A person conducting a business or undertaking must ensure, as far as is reasonably practicable, the health and safety of:
(a)workers engaged, or caused to be engaged by the person;
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2)A person conducting a business or undertaking must ensure, as far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”

Section 19(3) goes on to spell out specific standards that, as far as is reasonably practicable, a business or undertaking must meet. Only 19(3)(a), (f) and (g) would seem to have relevance in a situation where a risk to health or safety may come from intangible factors (such as those that might arise from verbal attacks made from outside an agency) rather than from tangible factors such as the physical environment. Those three factors, which may also include broader factors, are:
“(a) the provision and maintenance of a work environment without risks to health and safety; and
(b)-(e)…
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury or workers arising from the conduct of the business or undertaking.”

What is meant by “reasonably practicable” is the subject of s 18 of the WHS Act:
“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a)       the likelihood of the hazard or the risk concerned occurring: and
(b)       the degree of harm that might result from the hazard or the risk; and
(c)       what the person concerned knows, or ought reasonably to know, about:
(i)        the hazard or the risk; and
(ii)       ways of eliminating or minimising the risk; and
(d)       the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
At the same time, the obligations of those engaged by the Commonwealth as employees of the Australian Public Service are the subject of the Public Service Act 1999 (PS Act). The main objects of that legislation are:
“(a) to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public; and
(b)to provide a legal framework for the effective and fair employment, management and leadership of APS employees; and
(c)to define the powers, functions and responsibilities of Agency Heads, the Australian Public Service Commissioner and the Merit Protection Commissioner; and
(d)to establish rights and obligations of APS employees.”[55]
[55] PS Act; s 3

The Australian Public Service (APS) consists of Agency Heads and APS employees.[56] APS employees are persons engaged under either ss 22 or 72 of the PS Act.[57] SES employees are those APS employees, who are classified as SES employees under the Classification Rules.[58] The Senior Executive Service (SES) consists of SES employees.[59] “The function of the SES is to provide APS-wide strategic leadership of the highest quality that contributes to an effective and cohesive APS.”[60] Section 35(3) provides:
[56] PS Act; s 9
[57] PS Act; s 7
[58] PS Act; s 34
[59] PS Act’ s 35(1)
[60] PS Act; s 35(2)
“for the purpose of carrying out the function of the SES, each SES employee:
(a)provides one or more of the following at a high level:
(i)professional or specialist expertise;
(ii)policy advice;
(iii)program or service delivery;
(iv)regulatory administration; and
(b)promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries; and
(c)by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.”

Agency Heads must uphold and promote APS Values and APS Employment Principles.[61] Among the APS Values in s 10 are the following:
“Accountable
(4) The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
Impartial
(5)The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.”
[61] PS Act; s 12 and see also ss 10 and 11

Section 13 sets out the APS Code of Conduct, with which Agency Heads and APS employees must abide.[62] Of the 13 obligations imposed by s 13, that in s 13(5) is noteworthy. It provides that “An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.” As the plurality of the High Court said in Comcare v Banerji:[63]
“… As appears from the text and context of ss 10(1), 13(11) and 15(1), the legislative purpose of these provisions is to ensure that employees of the APS at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. And as has been seen, the APS Values are attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest.
There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative government mandated by the Constitution. Section 64 of the Constitution, which provides for the establishment of departments of state, … and s 67, which provides for the appointment and removal of officers of the Executive Government other than Ministers, … attest to the significance of the APS as a constituent part of the system of representative and responsible government mandated by the Constitution. …”[64]
[62] PS Act; ss 13(11) and 14(1)
[63] [2019] HCA 23; (2019) 93 ALJR 900; Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
[64] [2019] HCA 23; (2019) 93 ALJR 900 at [30]-[31]; 912 (citations omitted). Section 15(1) provides for the sanctions that an Agency Head may impose if an APS employee is found to have breached the Code of Conduct.

The plurality also made the following observations regarding the proper role of the APS in Australia’s system of responsible government:
“ Regardless of the political complexion of the government of the day, or its policies, it is highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS will faithfully and professionally implement accepted government policy, irrespective of the employees’ individual personal political beliefs and predilections. …”[65]
[65] [2019] HCA 23; (2019) 93 ALJR 900 at [34]; 913 (citations omitted)

These principles and the objects of the FOI Act provide the background against which the Policy Paper has been developed. It begins with a statement that:
“1. Transparency and accountability are fundamental to Australian democracy and to the Australian public service. Public servants should be accountable for their decisions, their advice and their actions in the service of the Commonwealth.
2.Public servants also have a right to be safe at work and safe from harm as a result of their work.
3.The evolution of the digital environment – including its ubiquity, accessibility and longevity – gives rise to new risks for public servants, as well as for citizens. These risks include the traceability and trackability of public servants’ personal lives and the risk of physical or online harassment.
4.Previously existing risks have been compounded by the normalisation of digital communications and publication. Risk may be increased when contact details are published to a wider audience, for a longer period of time, and at no cost, on a digital platform.”

The four statements in the previous paragraph are uncontroversial and nor are the following two principles set out in the Policy Paper:
“« The FOI Act plays an important role in promoting transparency and accountability in government.
«Public servants are accountable for their decisions, their advice and their actions. Agencies and ministers must ensure staff understand this and that this is made clear in staff induction programs and ongoing training.”

I do, however, have some hesitation arises in relation to the next principle stated in the Policy Paper:
“Agencies and ministers should start from the position that including the full names of staff in documents released in response to FOI requests increases transparency and accountability of government and is consistent with the objects of the FOI Act.”

The objects of the FOI Act are framed in terms of increasing, among other things, “scrutiny … and review of the Government’s activities.” In this context, the word “government” refers to “… a body of people, usually elected, with power to control the affairs of a country or state.”[66] Such a body is often referred to as “the Government” as is the case in s 3 of the FOI Act. This is the sense in which it was used by the Hon Ian Viner, Minister for Industrial Relations, in the Second Reading Speech relating to the Freedom of Information Bill 1981:[67]
“ The Westminster system of government, as we know it, is distinguished by a particular relationship between the Executive government and the Parliament. The Executive Government of the day bears a responsibility to the Parliament and, through the Parliament, to the people, for the proper discharge of the government of the country. Care must therefore be taken in adapting to the Australian system of government legal concepts derived from countries having different systems of government. The proposals in each country must be considered in the context in which they are intended to operate. Thus, the present Bill must be viewed in the context of the systems of administrative review which have already been established by this Parliament, namely, the Commonwealth Ombudsman, the Administrative Appeals Tribunal, and the Federal Court of Australia operating under the powers conferred on it by the Administrative Decisions (Judicial Review) Act. In addition, there are differences in the nature of the parliamentary institutions in each country which affect the relationships between ministers and the Parliament. The Bill thus contains provisions necessary to recognise the particular features of Cabinet government and to give proper weight both to the function of Ministers to make decisions relating to fundamental issues of government for which they have ultimate responsibility and to the special relationship between Ministers and their senior officials.”[68]
[66] Chambers
[67] 18 August 1981 Hansard House of Representatives 41
[68] 18 August 1981 Hansard House of Representatives 41

The “Government’s broader commitment to making Government open, accountable and transparent” was repeated by Senator Faulkner in his Second Reading Speech relating to the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008.[69]
[69] 26 November 2008; Hansard Senate 7293

What is meant by “the Government” when it is used in the objects expressed in s 3 of the FOI Act? The Commonwealth of Australia Constitution Act (The Constitution) confers the three powers of the Commonwealth on three separate bodies: the legislative power on the Parliament; the executive power on the Executive Government and the judicial power on the Judicature. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative.[70] The Governor-General is advised by the Federal Executive Council.[71] The Governor-General may appoint officers, who must be Ministers of State of the Commonwealth to administer departments of State established by the Governor-General in Council. Section 67 recognises that there will be other officers of the Executive Government. They are now known as the APS.
[70] The Constitution; s 61
[71] The Constitution; s 62

Although not explicitly stated in the Constitution, ss 7, 24, 61 and 64 are taken to have established the framework for a system of responsible government or a Westminster system.[72] An essential element of responsible government is the capacity of Parliament to act as a check on executive government.[73] The judgment of Callinan and Heydon JJ explained how this comes about in McKinnon v Secretary, Department of Treasury:[74]
“… The Minister is the one who is responsible for an answer given in Parliament, within the practical modern limits to which we have referred. It is his or her answer itself which is a, or the, matter of public interest, and not the various documents which may have canvassed that answer, or other possible answers. It will be in respect of the answer that the Minister actually gives that any political price will have to be paid, just as there may well be a political price to be paid for any claim of conclusiveness, whether it is well-based or not.”[75]
[72] Re Lambie [2018] HCA 6 at [23] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ
[73] Ibid
[74] [2006] HCA 45; (2006) 229 ALR 187; 80 ALJR 1549; Hayne, Callinan and Heydon JJ; Gleeson CJ and Kirby J dissenting
[75] [2006] HCA 45; (2006) 229 ALR 187; 80 ALJR 1549 at [125]; 1575

The focus of this passage is on a Minister’s ultimate responsibility to the Parliament. It is not upon the documents that may underpin that for which he or she is paying the political price. There may be practical reasons for this and these reasons were addressed by Callinan and Heydon JJ in McKinnon after referring to the numbers employed to work in the Treasury:
“… I]t is a matter of common knowledge that there are thousands of these, who, it may also safely be assumed, generate millions of documents annually, a large number of which would touch upon or concern the topics nominated by the appellant in his requests for documents. Not all of these documents could possibly be of equal importance. There are likely to be many documents written within a department of which a Minister could have no possible knowledge. Equally there are likely to be documents produced which reflect no opinion, proposal, idea, or even hope of a Minister, and which will have no influence upon any decision of a Minister or a government of which he is a member. So too, documents of which the Minister, or even a senior official, do become aware, may be produced to test assumptions, or for the purposes of comparison with other documents only. Some documents may be erroneous, or be based upon invalid assumptions, or may be of ephemeral interest only, or be overtaken by other events or otherwise swiftly superseded. Departments of public service are today so large, so dispersed throughout the nation, and so numerous in staff, as to make harsh any unqualified application in modern times of the convention that a Minister is responsible for everything that happens or should have happened, or every document produced, in the department that he administers …”[76]
[76] [2006] HCA 45; (2006) 229 ALR 187; 80 ALJR 1549 at [114]; 1574 (citation omitted)

Impracticalities of the sort addressed in this passage may mean that there is no strict convention that Ministers take responsibility for every action or inaction of those officers in their Departments, agencies or authorities for which they are responsible. That does not mean that those officers escape scrutiny. Apart from secrecy provisions and the like in individual pieces of legislation that impose obligations on officers to behave in certain ways and that may carry criminal sanctions, there are four pieces of legislation that weave a fabric of accountability and, to some extent, transparency.

The first piece of legislation is the PS Act, which is focused on accountability. Subject to regulations, the Agency Head may impose sanctions on an APS employee if he or she is found to have, among other actions and inactions, breached the Code of Conduct.[77] Transparency as well as accountability are both keystones in the AAT Act, the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and the Ombudsman Act 1976 (Ombudsman). In slightly different contexts and with slightly different boundaries, each will require a body, whether review or investigative, to examine the actions of those in government.

[77] PS Act; s 15

The AAT Act and the ADJR Act are concerned with the review of administrative decisions. In the case of the former, it is merits review and, in the latter, judicial review of administrative decisions coming within their purview. Not all administrative decisions come within the purview of the Tribunal although many more do come within that of the Federal Court under the ADJR Act. In so far as they do, the process of review also carries with it revelation of the process of decision-making leading to the administrative decision under review. The objective of transparency is served at least for the person seeking review. If, as is usually the case, transparency of the process is made available to the public when the reasons for decision of the Tribunal or for judgment of the Federal Court are published.

Under the Ombudsman Act, the Commonwealth Ombudsman may investigate complaints made to him or her with respect to action taken by a Commonwealth Department or prescribed authority. Transparency of the investigation will come about should the Ombudsman publish details of it in the Annual Report. The same is true of the other Ombudsmen established by the Ombudsman Act for specific operational groups: Defence Force Ombudsman; Postal Industry Ombudsman; Overseas Students Ombudsman; Private Health Insurance Ombudsman; and VET Student Loans Ombudsman.

In referring to these four pieces of legislation, I want to underline what was inherent in Mr Viner’s Second Reading Speech in 1981. That is, while the FOI Act plays an important role in promoting transparency and accountability in government, it is not the only way in which transparency and accountability in government are promoted.

In so far as the FOI Act promotes transparency and accountability it does so subject to the checks and balances to be found within it. One of those checks and balances is that the right of access is limited to “documents”, rather than to “information”. The word “document” is defined in very broad terms. Inherent in the definition is a recognition that information may be stored in ways that were not known or, if they were known, at least not widely known, at that time. While a person requesting access under the FOI Act will ultimately seek access to information, that information must be held in documentary form.

Another of the checks and balances takes the form of the exemptions from disclosure. The exemptions, which are set out in Part IV of the FOI Act, are framed in terms of the nature of documents or of the consequences of their disclosure. The terms in which they are drafted are largely based on recognised categories of public immunity together but also seek to protect the privacy and business affairs of those who must necessarily deal with government. They represent a balance between the public interest served by access to information and the public interest in maintaining the confidentiality necessary for the operation of government and the protection of those who have dealings with government or about whom information is collected by government. Just where that balance lies was shifted somewhat by the transformation of some exemptions by the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2009 to conditional exemptions with an attendant public interest test. That was the case with personal privacy, which had been an exemption provided for in s 41 of the FOI Act and now became a conditional exemption provided for in s 47F.

The Plan for Resolution of Issue #1 was to “Seek confirmation from Debt Management Branch decision to accept automated debt calculation to enable proceeding with the development and build automated functionality for this debt scenario.” Six entries are shown under “Resolution Progress” for the period from 16 March 2016 to 1 April 2016. Against the entry for 18 March 2016 is the entry: “[Exemption claimed]/[Exemption claimed] follow up with Debt Management to re-confirm Debt Management position on proceeding with automated solution.”
Entry #5 is written in a similar style. The Resolution Progress for that item includes an entry for 18 March 2016 reading “Initial email to Online Services ([Exemption claimed]) advising critical requirements to be delivered. Awaiting response from ICT to confirm requirements are to be delivered in June 2016 release.” Similar entries revealing first names appear on other pages of the Open Issues Summary.
An Escalation Template dated 14 December 2016 describes an incident a “Reminder/Warning letter not issued to debtors for certain automatically raised debt/s.” Names and contact numbers were given for three people identified as the Escalation Coordination Team. At the end of the Escalation Template, the Escalation Coordination Team are advised that they can contact a named person holding the position of acting Director, Debt Management Branch. An executive named as a contact for further information was the General Manager, Customer Payment Services.
A second Escalation Template was written in similar terms but related to “Interventions completed via the Online Compliance Intervention (OCI) system, have resulted in incorrect outcomes for a number of customers.” Names and contact numbers were given for members of the Escalation Coordination Team and the name and contact number of a Director, Compliance Risk Branch was given as the person, to whom the team could contact for further information. Ms Karen Harfield, General Manager, Customer Compliance Division, was given as the Executive for further information but exemption has been claimed for her telephone number. Mr Warren agreed that the name is not exempt. Exemption for both the names and telephone numbers has been claimed for the General Manager, Adelaide Delivery Centre, General Manager, Customer Payment Services Division and National Manager, Senior Carers and International Branch. The three were named as the SES officers, who had been advised of the incident.
The third document is a Progress Report entitled “Employment Income Matching – Online Compliance Progress Report”. This document seeks approval to, among other matters, proceed with a change to the Online Compliance Intervention design to incorporate an “Upfront Customer Declaration” and with a request for DRD PAYG Customer Contact Letters pending the provision of proposed solutions brief for the Enhanced Data Matching DRD – Manual Process. No names appear in that document.

The Issues Summary comprises 24 pages setting out either issues or actions. The first format appears on the first page of the document and I will take Issue #5 as an example:

Issue ID#	Date identified	Raised by	Issue Description	Impact Description	Issue Rating	Plan for Resolution	Stake-holders	Resolution By Date	Last Review Date	Resolution Progress	Issue Statuts
…	…	…	…	…	…	…	…	…	…	…	…
5	8/03/2016	ICT/PSBS	Non delivery of two critical requirements (MIR2 6 and MIR3 4) for June 2016 release (OCI DRD), ICT advises due to unavailability of data and technical feasibility	2 require-ments are critical to the implementation of OCI from 1 July 201. M1 will be used within ‘What if Simulator” to inform effective-ness of tolerances	Mod-erate	MIR2 6 and MIR3 4 are critical for capturing Operational Intelli-gence for testing tolerances when ‘What if Simulator” and is essential for June 2016 (stage 1) Release Negot-iating with ICT to ensure require-ments from the stage 1 release.	Online Services (Build), [Exemp-tion claimed] (legals)	27/03/2016	24/03/2016	Initial email to Online Services (Exemp-tion claimed) advising critical requirements to be deliver-ed	In Prog-ress

The action sheet takes a different format and does not necessarily relate to a specific numbered issue on the preceding page. I will set out Action Item #1 as an example:

Action Item ID	Description	Dare	Who	Due Date	Progress
…	…	…	…	…	…
1	Seeking the proposed ICT solutions linked to the Increased Welfare Compliance from Data Matching-Enhanced required for Enhanced Data Matching (EDM) DRD. This is required for business to assess if there are any impacts from the prioritisation of the SIMS functionality requirements. [Exemption claimed] should have this.	16/03/2016	[Exemption claimed/Exemption claimed]	22/03/2016	21/3/2016 – Follow up email to [Exemption claimed] seeking this information. [Exemption claimed] has advised he will follow up on his initial request to [Exemption claimed] today

The passages I have set out are representative of the documents in which the names, for which exemption is claimed, appear. They are also representative of what would seem to be a move, at least in Commonwealth public administration, from what might be described by some as a bureaucratic structure to a business model in the presentation of the work or task at hand. By a “bureaucratic structure”, I mean a structure that, speaking in very broad terms, groups tasks, however described, and assigns to each a hierarchy of authority or responsibility culminating in the head of the Department or agency and, ultimately the Minister. A business model is, again speaking very broadly, is focused on the result that is to be achieved. That result is further analysed by reference to, for example, the resources (human or otherwise) and the individual components or steps required to achieve that result and the time which each should take. Those who are responsible for the overall result and those who are required to build particular components or take particular steps are identified. They may be described as stakeholders, business owners and the like.

Like a bureaucratic structure, a business model has to sit within an agency that is itself part of the system of responsible government in Australia. Some agencies are Departments of State established under the Administrative Arrangements Order and headed by a Secretary. Others may be statutory agencies and yet others, such as Services Australia, are what are known as executive agencies under the PS Act with a CEO in the leadership role.[90] Whether a Secretary or a CEO, they remain responsible for what happens in their agencies to their respective Ministers.
[90] PS Act; s 7 and see also s 65

Traditionally, the work carried on in agencies has been undertaken by APS employees, who must comply with the PS Act and, in particular, with the Code of Conduct. Agencies have long been able to engage contractors but, in more recent times, the power has been more widely used so that even work associated with agencies’ core functions may be outsourced whether to consultants or to others engaged under labour hire arrangements. Their obligations are the subject of contractual arrangements although, for the purposes of the Public Governance, Performance and Accountability Act 2014, they may be regarded as officials of a Commonwealth entity and so of agencies.[91] As such, they are subject to the obligations imposed by that legislative regime. It is a world in which frank and fearless advice is no longer necessarily provided by APS employees, for whom it is a core tenet, but by contractors, for whom it is a contractual obligation. The FOI Act caters for outsourcing by requiring that an agency must take contractual measures to ensure that it receives a document if it is created by, or in the possession of, contractors, it relates to the performance of the contract and the agency receives a request for the document.[92]
[91] Public Governance, Performance and Accountability Act 2014; s 13(3)(c) and Public Governance, Performance and Accountability Rule 2014; r 9
[92] FOI Act; s 6C and see also the definition of “document of an agency”: FOI Act; s 4(1)

The passage from the judgment of Callinan and Heydon JJ that I have set out at [75] above draws attention to subtle changes in notions of responsible government that are evolving at the Ministerial level. The four documents in this case draw attention to the way in which an agency may identify certain links in the chain of accountability within its own operations although it cannot be said that they show the entire chain of accountability. The Agency has the person who is the Project Sponsor or Business Owner as one of the links. That person is Mr Britton, who is also identified as a Risk Owner. That does not mean that no responsibility lies with others such as the CEO or even the Minister, whether directly or through the actions of his or her ministerial staff, but the document clearly identifies Mr Britton as a person who carries some measure of responsibility for the risks of the Programme. Under the FOI Act, the Agency has given Mr Warren access to Mr Britton’s name and has not claimed that it is conditionally exempt under s 47F.

There is another person who is also named as a risk owner. That person is the Project Manager. His or her name is personal information for the reasons I have given. Would disclosure of the name be unreasonable disclosure of that personal information within the meaning of s 47F of the FOI Act? Provision is made on the face of the Risk Management Plan for the risk owners (the National Manager, Customer Compliance Branch, and the Project Manager) to agree or not to agree to risk ownership and the date on which that decision was made. Neither has marked the “Yes/No” box and no date appears against each. Only Mr Britton endorsed the Risk Management Plan. None, including Mr Britton, has acknowledged responsibility for deciding on the risk treatment strategy, managing and treating all aspects of the risks assigned to him or her, providing for their rationale for a decision to accept a threat or not accept an opportunity and granting resources and budget for treatment actions.

On the evidence that I have, there is no suggestion that the Project Manager’s name is well-known outside the Agency, known by those outside the Agency to be associated with the Programme or available from publicly accessible sources. He or she is clearly accountable within the Agency first to Mr Britton as the Risk Owner and the Agency is accountable to the Minister. Further detail the Project Manager’s place in the chain of accountability is apparent in Attachment A to the RPM where the Project Manager is named as the Treatment owner for a number of treatments for risks of which Mr Britton is the Risk owner.

Mr Warren referred to the reference in FOI Memorandum 94 to public servants’ anonymity as being contrary to the stated aims of the FOI Act and not assisting in promoting openness and accountability. I have expressed caution already about aspects of FOI Memorandum 94 and do so again. It is important to understand the exemptions in the context of the FOI Act as enacted. Its objects, as set out in ss 3 and 3A, make no reference to accountability. Apart from objects associated directly with accessibility to information held by the Commonwealth as a public resource, the objects focus on the way in which accessibility promotes Australia’s representative democracy. In particular, they focus on increasing public participation in “Government processes” and on increasing scrutiny, discussion, comment and review of “Government activities”. The word “accountability” tends to blur that focus and take scrutiny to the level of scrutiny of individual APS employees and contractors. The FOI Act’s objectives do not establish a separate merits review process of the activities of individuals engaged in the Government’s processes or activities.
There may be cases in which disclosure of individual’s names may increase scrutiny, discussion or comment of Government processes or activities. In others, the names of those responsible for the processes or activities may be neither here nor there in their scrutiny.

In this case, I do not consider that access to the name of the Project Manager would contribute to increased scrutiny of the Programme, which is the relevant Government activity on this occasion. The Programme has been the subject of intense media scrutiny and the four documents, to which Mr Warren has been given access, are relevant in that scrutiny. The Project Manager is a member of the Customer Compliance Branch of the Agency but, as Mr Britton is the National Manager of that Branch, is clearly subordinate to him. Even though there may be changes in Commonwealth public administration, the Risk Management Plan (RMP) places overall responsibility with Mr Britton just as is to be expected in an agency operating on traditional lines of public service accountability.

I accept Mr Storen’s evidence that individual employees in the Agency have been targeted on social media. Having read samples he annexed to his affidavit, I find that they display anger and frustration, which is understandable, but also that some contain threats directed to named officers of the Agency. Those named officers are those who have appeared on behalf of the Agency or who, like Mr Hank Jongen, have a social media presence on behalf of the Agency. Again on the basis of Mr Storen’s affidavit, I find that SES employees, whose contact details are publicly available, have been receiving emails of a similar ilk. That is consistent with the fact that posts are being made on social media. I accept that members of the public would be likely to take the same lines of approach in relation to any of the Agency’s APS employees or contractors known to be associated with the Programme.

In making this finding, I do not suggest that Mr Warren would engage in making posts or sending emails of that nature. It must be remembered, however, that the FOI Act does not, of itself,[93] limit those to whom, or the platforms on which, he might choose to publish the documents to which he is given access. Others may choose to do what Mr Warren would not do but which others have already shown that they will do. If they choose to do so, modern means of communications enable information to be disseminated very broadly and very quickly. The FOI Act has no mechanism preventing dissemination of edited or distorted information taken from documents to which access has been given.
[93] FOI Act; s 11C

Having regard to all of these issues, I have decided that the disclosure of the Project Manager’s name in any of the four documents would be an unreasonable disclosure of personal information within the meaning of s 47F.

I have also reached the same conclusion in relation to all of the other names in the documents in so far as access has not already been given to them to Mr Warren. I begin with the Project Officers named on the second page of the RPM as the document’s author or editor in the period from 1 June 2015 to 3 August 2015. It is clear from the entries made under “Comments” that the Project Officers are working at the direction of others in what remains a hierarchical structure in the Commonwealth public sector in which, under s 13(5) of the PS Act an APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction. There are entries, for example, showing that Project Officers edited the RPM after feedback from Project Officers, an Assistant Director and internal review. There were further updates to reflect the outcomes from a risk workshop and updates following feedback from the Director. They are not identified as risk owners, their names are not available from publicly accessible sources and the disclosure of their names does not advance the scrutiny of the Programme. On the basis of Mr Storen’s evidence, I find that access to their names is likely to lead to their being emailed if both their first names and surnames are made available and, whether their full name is known or not, to their being subject to criticism in social media sites.

I note that a person’s name appears after several references to the “ICT Project Manager,” in the column marked “Stakeholder” in the Issues Summary. Having regard to those instances in which there is a reference to the “ICT Project Manager” without a name following, I have decided that the name that appears, or the names that appear, from time to time are not the name of the ICT Project Manager.

The Issues Summary also contains a number of names of persons either as Stakeholders or in the column headed “Resolution Progress”. That latter column sets out the work that particular people have been given or have undertaken in addressing the various issues raised in the document. The work that they have been assigned shows that they are acting according to the instructions of others. The same is true of the names in the Online Compliance Intervention. For the reasons I have given in relation to Project Managers, disclosure of their names under the FOI Act would be an unreasonable disclosure of their personal information.

I have reached the same conclusion in relation to the members of the Escalation Coordination Team and their telephone numbers that appear in an Escalation Template in the RPM relating to the “Reminder/Warning letter not issued to debtors for certain automatically raised debt/s”. That same document includes the name of the acting Director, Debt Management Branch as the person whom the Escalation Coordination Team could contact for further information. Again, I consider that person in the same position as the Project Managers and his or her name and telephone number are conditionally exempt under s 47F.

The Escalation Template concerning “Interventions completed via the Online Compliance Intervention (OCI) system, have resulted in incorrect outcomes for a number of customers” follows a similar format. Members of the Escalation Coordination Team are identified and the Director, Compliance Risk Branch is named as the person who the Escalation Coordination Team may contact for further information. There is no difference between the two Escalation Templates to this point and my conclusion is the same.

In each Escalation Template a person is described as the “Executive contact for further information”. The executive contact for further information is named and described as the General Manager, Customer Payment Services in the first. The Agency has been given Mr Warren access to the name of the General Manager, Customer Compliance Division, which appears in the second. Her telephone number continues to be claimed to be exempt.

In the second Escalation Template, three other members of the SES are also named as persons who had been advised of the incident. They are the General Manager, Adelaide Delivery Centre, the General Manager, Customer Payment Services Division and the National Manager, Senior Carers and International Branch. These are all members of the Agency’s executive and are in positions providing leadership of the highest quality that contributes to an effective and cohesively operating APS, let alone Agency. Membership of the SES however, does not mean that every member of the SES has line responsibility for every aspect of an agency’s responsibilities. Given their positions, the fact that they have been advised of the fact that there have been incorrect outcomes for a number of customers is knowledge that is necessary for those SES officers to carry out their duties. It does not carry with it the conclusion that they have line responsibility for the part of the Programme, to which the four documents relate, if at all. Neither the names of those holding those positions nor the names of the positions appear elsewhere in the four documents.

I accept that members of the executive in the Agency may not be well known in the community but it is a matter of general knowledge that the names of those occupying executive positions such as General Managers and National Managers are shown in each agency’s Annual Report or on its on on-line entries. For the reasons I have given earlier, release of their names may draw adverse attention in social media and even by direct contact but, with membership of executive roles in an agency comes direct responsibility for their areas of responsibility. On the evidence that I have, I have decided that it is unreasonable to reveal their names when there is nothing in the documents or in the evidence of Mr Storen that places them as persons in the executive with an interest in the issues dealt with in those documents. Their names are conditionally exempt under s 47F of the FOI Act.

The telephone numbers that are disclosed in the documents must be considered separately but I do not think that there is any distinction to be drawn between whether they are telephone numbers of a member of the SES or of an APS officer, who is not. Publication of the names of Mr Britton and Ms Harfield is one thing but revealing telephone numbers that give direct access to them is another. So too is publishing the telephone numbers of those whose names I have found to be conditionally exempt.

In Colakovski, telephone numbers were considered to be “personal affairs” of a person as they would reveal the identity of the caller and, in the circumstances of that case, the reason for making the call. The definition of “personal information” no longer incorporates a reference to personal affairs. It now means, in part, “information … about an identified individual …”. I find that a telephone number is about an individual in the sense that it identifies a means by which communication may be made with that individual. That is so whether it is a personal mobile or landline telephone number or a telephone number made available through an individual’s place of employment.

An individual may include his or her direct telephone number in correspondence directed to other persons. Unless published on an agency’s website or made public in some other way, such as on a pamphlet or report available to the public, I consider that disclosure of an individual’s telephone number in his or her place of employment is unreasonable. Its disclosure will provide an avenue by which others may choose to express their displeasure with the individual or with that for which he or she is responsible but its disclosure does not make any positive contribution to increasing public participation in Government processes or in increasing scrutiny, discussion, comment and review of the Government’s activities. Access to the four documents does make that contribution for they reveal aspects of the Programme and how certain issues were addressed.

Would access to conditionally exempt documents be contrary to the public interest?

Would access to the documents that are conditionally exempt under s 47F, on balance, be contrary to the public interest? The conditional exemption in s 47F itself represents one aspect of the public interest i.e. that personal information held by the Commonwealth should not be disclosed when it is unreasonable to do so. The factors that are taken into account in deciding unreasonableness or otherwise include those relating to transparency and accountability. When weighing the public interest under s 11A, transparency and accountability are themselves aspects of the public interest and are weighed in their own right together with any other relevant aspects of the public interest.

There is a great deal of public interest in the Programme or in “Robot Debt” as it is known in the media but that is not the public interest in the sense in which it is used in s 11A. There is a public interest in the public’s being able to scrutinise the Programme as a whole, including that part of it that is the subject of the four documents. Scrutiny gives those who scrutinise a basis for insight into the Government’s activities and so for discussion, comment and review. The opportunity for such scrutiny certainly favours the disclosure of all of the substantive parts of the documents revealing the risk analyses, the issues and incidents that have arisen and the way they were addressed.

The names and, where shown, their telephone numbers do not add anything to the scrutiny of the Programme as such. There is a public interest in ensuring that the APS is an apolitical public service that is efficient and effective in serving the Government, Parliament and the Australian public as required by s 3(a) of the PS Act. It is difficult to see that disclosure of the names or the telephone numbers will contribute to scrutiny directed to a review of the APS.

A further public interest takes the form of ensuring that the obligations imposed by other Commonwealth legislation are fulfilled. Among them are the obligations under the WHS Act. The main object of that legislation is to protect workers and other persons against harm to their health, safety and welfare through elimination or minimisation of risks arising from work.[94] In furthering that object “… regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.” I accept the evidence of Mr Storen relating to the level of bitter criticism levelled against the Programme in the media. Mr Storen is an experienced member of the SES responsible for staff both in the Agency and in other positions in the APS. He is experienced in the management of staff and I accept his evidence that disclosure of the names shown in the four documents is likely to lead to those people receiving emails or becoming the subject of adverse comment in social medial. At the operational level, I also accept Mr Storen’s evidence that, if that were to happen, the ability of those engaged in the compliance work would affect their ability to carry out their current duties and responsibilities. I do not have any medical evidence relating to the effect that such behaviour is likely to have on staff but I do accept that the risk that it is likely to have an adverse effect on the health of those working with the Programme in the Agency is a risk of the sort that it is obliged to take into account under the WHS Act in fulfilling its obligations under that enactment i.e. to provide the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.
[94] WHS Act; s 3(a)

Accepting for the purposes of this case that criticism against the Programme is justified, it does not follow that criticism against individual named officers is equally justified. Despite its choosing to present its tasks, or aspects of its tasks, in the format of a business model and in the increasing practice of engaging contractors or adding to its workforce through labour hire, the APS remains a hierarchical organisation with levels of responsibility culminating in responsibility to the Government, the Parliament and the Australian public. The convention of responsible government remains a valid convention at the Commonwealth level of government. It is contrary to the public interest to expose individuals in that environment to public criticism and attack of the sort directed against the Programme when disclosure of the documents will give no insight into the role or responsibility that they had in the formulation of, or policy behind, the Programme as opposed to simply implementing the decisions of others. I accept Mr Storen’s evidence that it is likely that this will occur and that the likelihood of its happening will affect the Agency’s ability to attract and retain future staff. That, in turn, is likely to have an impact on the provision of an efficient and effective APS.

There is a clear public interest in the public’s knowing about the Programme and how the Agency dealt with the risk and issues that were raised. That public interest has been met in relation to the risks and issues dealt with in the four documents by the disclosure of their substance. In the context of the names and telephone numbers of all but two persons named in the four documents, I find that the public interest in transparency and accountability is outweighed in the context of disclosure under the FOI Act by public interests in the right of individual not to have personal information unreasonably disclosed, the Agency’s obligations to meet its responsibilities under the WHS Act and a national interest that underpins the PS Act in having an APS playing an effective role in the Commonwealth’s system of responsible government.

Section 22

In view of the decision I have reached, inclusion of the names and telephone numbers as well as a signature means that the whole of the four documents are exempt documents unless it is possible for the Agency to prepare a copy that deletes those names, telephone numbers and signature. If it is possible, the Agency must give access to the edited copy. Having regard to the placement of the information in the documents and its ease of identification, I consider that it is reasonably practicable for the Agency to prepare an edited copy within the meaning of s 22(1). The Agency must give access to that edited copy under s 22(2).

DECISION

For the reasons I have given, I set aside the decision of the IC dated 6 June 2019. In its place, I substitute a decision that, apart from any reference to the names of Mr Britton and Ms Harfield, the four documents are exempt from disclosure under ss 47F and 11A of the FOI Act in so far as they reveal the names and telephone numbers of any individual identified in them and one signature but not otherwise. The Agency must give Mr Warren access to a copy of the four documents from which all names other than those of Mr Britton and Ms Harfield, all telephone numbers, one signature and the file path (other than the file name) under the heading “Document location” on page 2 of the document titled “Employment Income Matching PN2015.5075 Risk Management Plan” have been deleted.

I certify that the preceding one hundred and thirty eight paragraphs (138) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

.....................[sgd]..................................................
Associate
Date of decision: 9 November 2020

Heard:

Last submission received:

10 June 2020

22 October 2020

Applicant’s counsel:

Applicant’s solicitor:

Respondent:

Mr Justin Davidson

Ms Laura Butler
Australian Government Solicitor

Self represented