Freedom of Information - Whether disclosure would have a substantial adverse effect on the management or assessment of personnel - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A and 47E(c)

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the internal review decision of the Commonwealth Scientific and Industrial Research Organisation (CSIRO) of 18 February 2021 as varied on 10 August 2023.

1. This decision discusses the application of s 47E(c) to documents concerning matters that had been raised by the applicant which contained their personal information. It is primarily of interest to the parties in relation to the specific information sought.

1. The applicant applied to the CSIRO for access to documents pertaining to matters they had raised about their workplace which contained their personal information.
2. On 15 January 2021, the CSIRO advised the applicant that they had identified 102 documents relevant to the scope of the request, and decided to provide the applicant with partial access to the documents. In making its decision, the CSIRO relied on the management functions of an agency exemption (s 47E(c)) and the personal privacy exemption (s 47F) under the FOI Act. The CSIRO also found that some material was irrelevant to the request and deleted this material under s 22 of the FOI Act.
3. On 20 January 2021, the applicant sought internal review of the CSIRO's decision.
4. On 18 February 2021, the CSIRO affirmed its original decision on internal review.
5. On 25 February 2021, the applicant sought Information Commissioner Review (IC review) of the CSIRO's internal review decision.
6. On 10 August 2023, the CSIRO made a revised decision under s 55G of the FOI Act. The CSIRO decided to provide access to some additional material in the documents. In making its decision, the CSIRO relied on the exemption under s 47E(c). The CSIRO also maintained that some material is irrelevant to the applicant's request and deleted this material under s 22.
7. The applicant subsequently confirmed that they wished to continue with the IC review and advised that they were seeking access to all of the information that had not been provided to them.
8. The issues to be decided in this IC review are:
   • whether the material that the CSIRO maintains is irrelevant under s 22(1)(a)(ii) is irrelevant to the applicant's request, and
   • whether the material that the CSIRO maintains is conditionally exempt under s 47E(c) of the FOI Act is conditionally exempt under that provision, and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
9. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[1]
10. In making my decision, I have had regard to the following:
    • the CSIRO's decision and reasons for decision of 15 January 2021
    • the CSIRO's internal review decision and reasons for decision of 18 February 2021
    • the CSIRO's revised decision and reasons for decision of 10 August 2023
    • the documents at issue
    • the FOI Act[2]
    • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[3] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[4] and
    • the parties' submissions.

1. The applicant confirmed that they were seeking access to all of the information that was not disclosed to them.
2. The CSIRO decided that material comprising the names and contact details identifying particular individuals who had no involvement in the workplace investigation, as well as some email correspondence that were unrelated to the matters outlined in the scope of the applicant's request were irrelevant.
3. Based on my consideration of the documents, I accept the CSIRO's characterisation of this material. Additionally, it is apparent that other categories of information that the CSIRO found to be irrelevant comprises the mobile telephone number of an individual and duplicate emails.
4. Having regard to the scope of the applicant's request and the nature of the material that the CSIRO withheld under s 22, it is apparent that the material would reasonably be regarded as irrelevant to the applicant's request. In my view, it is unlikely that the applicant would be seeking access to the mobile telephone number of an individual, or duplicated material. Further, it is not apparent that the applicant would decline access to an edited copy of the documents.

1. I find that the material that the CSIRO withheld under s 22 is irrelevant to the applicant's request.

1. Section 47E(c) of the FOI Act provides that a document is exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

Whether disclosure would have a substantial adverse effect on the management or assessment of personnel

1. The CSIRO submits that the relevant material comprises information about a workplace investigation. The CSIRO explained that some of the information was obtained from various individuals as part of the investigation, while other information comprised confidential internal discussions regarding staff welfare and management issues.
2. The CSIRO contends that individuals who engage in its investigations and dispute resolution processes hold a genuine and reasonable expectation that the process would be confidential. The CSIRO claims that disclosure of the relevant information in this context would have a deleterious effect on the CSIRO's relationship with its employees. The CSIRO also contends that it is necessary to uphold a degree of confidentiality in its investigations and dispute resolution processes so as to ensure that sensitive matters are handled with tact and discretion. The CSIRO submits that disclosure of the relevant material may discourage other individuals from participating and providing information in similar processes in the future.
3. The CSIRO also explained that the sensitivity of the relevant material has not been diminished through the passage of time, and that disclosure of the material could result in reputational damage to the CSIRO as a trustworthy employer with respect to its current employees, as well as to potential future employees. The CSIRO submits that this would have a substantial adverse effect on the management and future assessment of its personnel.
4. The applicant disagreed with the CSIRO that disclosure would have the effect claimed and submits that any issues concerning the privacy of individuals can be adequately addressed by de-identifying the names of the third parties.

1. I have considered the parties' submissions together with the relevant material. It is apparent that the material comprises information that was obtained from various individuals as part of the investigation together with internal communications about the welfare and management of CSIRO's staff members.
2. Although the applicant submits that any privacy concerns can be addressed by de-identifying the third parties through the redaction of their names, given the context of the information, I consider that the individuals in question can still be reasonably identifiable.
3. The CSIRO essentially contends that disclosure of the relevant material would discourage cooperation of agency staff members from participating in future investigations. A number of IC review decisions have considered the application of s 47E(c) to material arising from internal investigations of workplace complaints.[5] Relevantly, the Information Commissioner explained in 'AJZ' and Department of Home Affairs (Freedom of information) [2024] AICmr 95 ('AJZ'):

As noted in recent decisions, when investigating a workplace complaint about one of its employees, an agency can be expected to create documents that include evidence about that employee's conduct taken from that employee, from other employees and (possibly) from people outside the agency. It is obviously beneficial for an agency's management and assessment of its personnel that the evidence it collects in such investigations is as frank as possible. Anyone providing that evidence would expect that, subject to applicable natural justice principles, details of that evidence will not be widely disclosed. Disclosure of such evidence could reasonably be expected to affect the willingness of people to provide evidence for future workplace investigations, which, in turn, would have a substantial adverse effect on the management or assessment of the agency's personnel.[6]

4. Having regard to the nature of the relevant material, I consider that the reasoning in 'AJZ' also applies in this case. I accept that disclosure of the relevant material would likely discourage individuals from participating in future investigations. More specifically, disclosure of information comprising the recollections and opinions of individuals involved in the investigation would likely cause employees who experience future workplace incidents to become reluctant or less frank in reporting similar incidents and providing evidence that may be crucial to those investigations. Accordingly, such an outcome would have a substantial adverse effect on the CSIRO's ability to manage its personnel.

1. On this basis, I am satisfied that the relevant material is conditionally exempt under s 47E(c) of the FOI Act.

Whether access would be contrary to the public interest (s 11A(5))

1. Having found the relevant material to be conditionally exempt under s 47E(c) of the FOI Act, I am required to consider whether it would be contrary to the public interest to give the applicant access to conditionally exempt material at this time. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act.[7] In considering the public interest, I have had regard to the parties' submissions.
2. Again, the applicant submits that disclosure of the relevant material would not have the effect that the CSIRO claims, as disclosure would:
   • provide additional context to information that is publicly available, and
   • allow for transparency, scrutiny, discussion, comment and review of CSIRO's activities and decision making.
3. The applicant further explained that they had disagreed with the findings of the investigation, and disclosure of the relevant material would provide insight into whether the CSIRO had followed due process and complied with principles of procedural fairness and natural justice. The applicant also contends that disclosure would allow them access to their personal information.
4. Similarly, the CSIRO identified that disclosure of the relevant material would promote the objects of the FOI Act, including by enhancing scrutiny, discussion, comment and review of the CSIRO's activities.
5. Based on my consideration of the parties' submissions together with the relevant material, I accept that disclosure of the material in question would:
   • promote the objects of the FOI Act
   • inform debate on a matter of public importance by allowing or assisting inquiry into possible deficiencies in the conduct or administration of the CSIRO, and
   • allow the applicant to access their personal information
6. The CSIRO submitted that the public interest factors in favour of disclosure are outweighed by the public interest factors against disclosure. In particular, the CSIRO submits that disclosure of the relevant material could reasonably be expected to:
   • prejudice the protection of an individual's right to privacy
   • prejudice the CSIRO's ability obtain confidential or similar information in the future, and
   • prejudice the management functions of an agency.
7. Based on my consideration of the relevant material, I accept that these factors against disclosure are relevant in this case. Additionally, I consider that some of the material pertains to unsubstantiated allegations of misconduct or improper conduct, and disclosure of this material could also reasonably be expected to prejudice the fair treatment of individuals whose personal information appear in the documents.
8. In weighing the public interest factors, I give significant weight to the factors against disclosure. As I have already discussed above, I consider that disclosure of the relevant material would likely discourage individuals from participating or providing evidence in future investigations, and this would have a significant adverse impact on the CSIRO's ability to undertake future investigations effectively as well as its ability to manage its personnel.
9. Accordingly, I am satisfied that the factors against disclosure outweigh the factors favouring disclosure in this case.

1. Giving the applicant access to the relevant material would, on balance, be contrary to the public interest at this time.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Section 22 of the FOI Act authorises an agency to prepare and to give an applicant access to an edited copy of a document if:

• an agency decides that giving access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access (s22(1)(a)(ii)), and
• it is possible for the agency or Minister to prepare an edited copy of the document (s 22(1)(b)), and
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and
• it is not apparent, from an applicant's request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)).

A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used.[8]

Certain operations of agencies exemption (s 47E(c))

Section 47E(c) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

the predicted effect needs to be reasonably expected to occur... There must be more than merely an assumption or allegation that damage may occur if the document is released.

...

An agency cannot merely assert that an effect will occur following disclosure. The particulars of the predicted effect should be identified during the decision-making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied on, the relevant particulars and reasons should form part of the decision maker's statement of reasons, if they can be included without disclosing exempt matter (s 26, see Part 3).[9]

For this conditional exemption to apply, the document must relate to either:

• the management of personnel - including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety

• the assessment of personnel - including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.[10]

Section 11A(5)of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when deciding whether access 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 addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[11]

To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies based on the particular facts at the time the decision is made.[12]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[2] Sections 11A, 22 and 47E(c) as set out in Annexure A.

[3] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[5] See for example, 'AOG' and Department of Veterans' Affairs (Freedom of information) [2024] AICmr 214; 'ANW' and Department of Defence (Freedom of information) [2024] AICmr 203; and 'AJZ' and Department of Home Affairs (Freedom of information) [2024] AICmr 95.

[8] FOI Guidelines at [3.54] footnoting Re Gould and Department of Health [1985] AATA 63.

[10] FOI Guidelines at [6.103] (footnote omitted).

[11] FOI Guidelines at [6.229] - [6.233].

[12] FOI Guidelines at [6.238] (footnote omitted).