1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the internal review decision of the Department of Defence (the Department) of 15 March 2021, as varied on 12 October 2023.

1. This decision discusses the application of s 47E(c) of the FOI Act to documents pertaining to a workplace complaint and to decisions that were made concerning the applicant's position. It is primarily of interest to the parties in relation to the specific documents sought.

1. The applicant applied to the Department for access to various documents pertaining to a workplace complaint and to decisions that were made concerning their position.
2. On 29 January 2021, the applicant was provided with two decisions from different areas of the Department; one from the Inspector-General of the Australian Defence Force (IGADF) and another from the Royal Australian Air Force (RAAF).
3. The IGADF identified 20 documents relevant to the applicant's request and decided to release 16 documents in full, and the remaining four documents in part. In making its decision, the IGADF relied on the personal privacy exemption (s 47F) of the FOI Act. The IGADF also deleted material that it found to be irrelevant to the scope of the applicant's request under s 22 of the FOI Act.
4. The RAAF identified 21 documents within the scope of the applicant's request and decided to release 14 documents in full and the remaining seven documents in part. In making its decision, the RAAF relied on the management functions of an agency exemption (s 47E(c)) of the FOI Act. The RAAF also deleted material that it found to be irrelevant under s 22.
5. On 1 February 2021, the applicant sought internal review of both decisions with respect to material that was withheld in emails provided by a named individual, as well as the searches that were conducted.
6. On 15 March 2021, the Department varied its original decisions and identified 18 additional documents relevant to the request. The Department decided to release seven documents in full and 11 documents in part. In making its decision, the Department relied on the exemptions in ss 47E(c) and 47F. The Department also deleted material that it found to be irrelevant under s 22. The Department did not address the applicant's request for review with respect to material that it withheld in the emails identified by the applicant. The Department is therefore deemed to have affirmed its decision with respect to this material.
7. On 30 March 2021, the applicant sought IC review of the Department's internal review decision.
8. On 12 October 2023, the Department made a revised decision under s 55G of the FOI Act. The Department advised the applicant that following additional searches, it located an additional four documents relevant to their request. The Department decided to provide the applicant with all four documents in part. In making its decision, the Department relied on the exemption in s 47E(c) and deleted irrelevant material under s 22.
9. The applicant confirmed that they wished to continue with the IC review and advised that they were seeking a review of the searches that were undertaken by the Department, as well as the Department's application of the conditional exemption in s 47E(c).
10. The issues to be decided in this Information Commissioner review (IC review) are:
    • whether the Department had taken all reasonable steps to locate documents relevant to the applicant's request (s 24A)
    • whether the material that the Department maintains is conditionally exempt under s 47E(c) of the FOI Act is conditionally exempt under this 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)).
11. 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]
12. In making my decision, I have had regard to the following:
    • the Department's decisions and reasons for decisions of 29 January 2021, its internal review decision and reasons for decision of 15 March 2021 and its revised decision and reasons for decision of 12 October 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.

Whether reasonable steps taken to find documents (s 24A)

1. Section 24A of the FOI Act requires an agency to take 'all reasonable steps' to find a document before refusing access to it on the basis that a document cannot be found or does not exist.
2. The applicant submits that they are aware of the existence of certain records including full PMKEYS system reports of position data and duty statements, diary notes from several named individuals and a list of any officer positions as approved in PMKEYS. The applicant contends that these documents have not been produced by the Department.
3. During this IC review, the Department provided the Office of the Australian Information Commissioner (OAIC) with evidence of the searches it had conducted. That evidence demonstrates that searches were undertaken by the individuals named in the applicant's request, as well as various areas within the Department. Searches were also undertaken through the Department's databases, its physical files and its electronic records, including personal and group emails. The Department contends that other than the four additional documents that it located in its revised decision, no further documents relevant to the applicant's request could be found.

1. Based on my consideration of the parties' submissions together with the evidence provided by the Department with respect to its searches, I am satisfied that the steps taken by the Department to locate documents relevant to the applicant's request were reasonable. Although the applicant contends that they are aware of the existence of certain documents, other than a general assertion as to their existence, there is no further explanation or evidence available which would demonstrate that the searches undertaken by the Department is deficient.

1. Having regard to the evidence provided by the Department, I am satisfied that the Department has taken all reasonable steps to locate documents relevant to the applicant's request and further documents cannot be found or do not exist.

1. Subsection 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 Department explained that the relevant material pertains to human resource policies, and comprises internal communications regarding postings within the RAAF, as well as the factors that may be considered when determining whether a posting is suitable.
2. The Department submits that disclosure of this material would have a substantial adverse effect on the Department's management of its personnel, as it could impact on the willingness of personnel to participate in the posting process, as well as the Department's ability to post personnel in accordance with its operational requirements.
3. The Department contends that in order for it to identify, assess and determine its priorities and needs for Australian Defence Force (ADF) roles and postings efficiently, it is necessary for staff involved in the management of these matters to have candid and robust discussions regarding the suitability of personnel. The Department submits that confidentiality must be maintained in order to encourage and support open engagement on personnel and ADF posting issues.
4. Additionally, the Department submits that disclosure of this material could reasonably be expected to have an unduly negative impact on its personnel management processes, whereby staff may be more reluctant to engage thoroughly and frankly in these processes due to concerns that information that they provide could be disclosed publicly, notwithstanding its highly sensitive and personal nature.
5. The Department further submits that information concerning the management of one staff member is often intertwined with other individuals, and that disclosure could have a negative impact on the mental health and privacy of the staff members who are affected by the decisions.
6. The applicant's submissions primarily focused on the public interest and did not specifically address whether disclosure of the relevant material would have a substantial adverse effect on the management or assessment of the Department's personnel.

1. I have considered the Department's submissions together with the relevant material, and I accept the Department's characterisation that this material comprises internal communications regarding postings within the RAAF, as well as the factors that may be considered when determining whether a posting is suitable.
2. In particular, the relevant material comprises candid discussions with respect to the assessment of individuals to various postings, including the opinions and reasons regarding their suitability for the posting.
3. A number of IC review decision[5] have found that the disclosure of professional assessments of personnel and employee feedback could reasonably be expected to be discomforting to agency staff and would likely affect their willingness to participate fully and frankly in future assessments. Disclosure of material obtained through such processes would likely have a substantial adverse effect on the management or assessment of the agency's personnel.
4. Similarly, given the nature of the discussions regarding the performance or suitability of an individual for a posting, there is, in my view, an expectation that information provided during such discussions would not be disclosed more broadly. Disclosure in these circumstances would likely discourage staff from having candid discussions with respect to personnel issues, and could also have a substantial adverse effect on the willingness of individuals to provide frank feedback and the ability of the Department's ability to assess the capabilities or its personnel.

1. Accordingly, 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.[6] In considering the public interest, I have had regard to the parties' submissions.
2. The applicant submits that the relevant material comprises their personal information, and that disclosure would substantiate their allegation that the Department had disclosed medical information without their consent, and that this amount to a privacy breach. The applicant also submits that disclosure would reveal discrimination in contravention of the human rights and disability legislation.
3. Similarly, the Department acknowledged that disclosure of the relevant material would:
   • promote the objects of the FOI Act, including by revealing the reasons that informed decisions concerning the applicant's postings
   • allow the applicant access to their personal information, and
   • contribute to the administration of justice for a person, including the fair treatment of an individual in their dealings with an agency.
4. Based on my consideration of the parties' submissions together with the relevant material, I accept that factors in favour of disclosure identified by the parties are relevant in this case.
5. However, the Department submits that the factors in favour of disclosure are outweighed by the following factors against disclosure, whereby disclosure of the relevant material could reasonably be expected to:
   • prejudice the privacy interests of other individuals whose personal information (including their opinions) appear in the documents
   • prejudice the Department's ability to obtain similar or confidential information in the future, whereby staff may be reluctant to engage thoroughly and candidly in discussions about roles and personnel suitability due to concerns that such information would be disclosed publicly, and
   • prejudice the security and defence of Australia, whereby the Department's ability to ensure that roles and postings are filled by personnel with the necessary qualifications, experience and capability could reasonably be expected to be diminished.
6. Based on my consideration of the relevant material, I accept that these factors against disclosure are relevant in this case. In weighing the public interest factors, I give significant weight to the factors against disclosure. As I have discussed above, the relevant material pertains to internal discussions regarding postings within the RAAF and the suitability of individuals to those postings. Having regard to the nature of the relevant material, I accept that there is a real risk that disclosure of the relevant material would discourage staff from having candid discussions with respect to personnel issues, which in turn, would diminish the Department's ability to adequately assess the capabilities of its personnel.
7. Accordingly, I am satisfied that the factors against disclosure outweigh the factors favouring disclosure in this case.

1. I find that disclosure of 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 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.

Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of documents, and
• the record management systems in place
• the individuals within an agency or minister's office who may be able to assist with the location of documents, and
• the age of the documents.[7]

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).[8]

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.[9]

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.[10]

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.[11]

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] Section 11A 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, BA and Merit Protection Commissioner [2014] AICmr 9 at [93], Paul Cleary and Special Broadcasting Service [2016] AICmr 2 at [21].

[7] FOI Guidelines at [3.88] - [3.89] [footnotes omitted]. For further information, see FOI Guidelines at [3.85] - [3.94] [footnotes omitted]; 'RD' and Comcare (Freedom of information) [2019] AICmr 61; 'PK' and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65; 'PI' and Department of Human Services (Freedom of information) [2018] AICmr 62; 'PF' and Department of Human Services (Freedom of information) [2018] AICmr 59; 'OP' and Department of Home Affairs (Freedom of information) [2018] AICmr 43; Josh Taylor and Prime Minister of Australia (Freedom of information) [2018] AICmr 42.

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

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

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