Freedom of Information - Whether disclosure would have a substantial adverse effect on the management or assessment of personnel - Whether disclosure would have an adverse effect on the proper and efficient conduct of the operations of an agency - Whether disclosure of personal information unreasonable - (CTH) Freedom of Information Act 1982 ss 47E(c), 47E(d) and 47F

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the s 55G revised decision of the Department of Veterans' Affairs (the Department) of 20 June 2024. I substitute my decision as follows:
   • the material that the Department claimed was exempt under ss 47E(c), 47E(d) and 47F is not conditionally exempt under those provisions.
2. Within 28 days of this decision:
   • the Department must provide the applicant with a copy of the videos at issue, and
   • the Department must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision discusses the application of ss 47E(c), 47E(d) and 47F to personal information of a third party employee in a departmental training video. It finds that the Department has not met its onus in establishing that a decision adverse to the applicant should be made, particularly in circumstances where the Department released to the applicant personal information relating to the third party employee in question pursuant to its original decision.

1. On 29 September 2021, the applicant applied to the Department for access to information, including access to a training video featuring 'AYI'. In October 2021, following consultation between the parties, the applicant narrowed the scope of his request to only 'a copy of the original ['AYI'] video.'
2. The Department granted access in full to one document, being 'a copy of the original ['AYI'] video.'
3. The applicant sought Information Commissioner review (IC review) of the Department's decision on the basis that the video that had been released to him by the Department had been edited and a slide had been removed.[1]
4. During the course of this IC review, the Department made a revised decision in which it identified, following further searches of its records, three additional documents relevant to the request. It decided to grant access in part to edited copies of the three documents with material claimed to be exempt under s 47F. Following receipt of the revised decision, the applicant submitted that he wished to continue with the IC review on the basis that the Department 'have defaced the video and removed spoken language.' The Department subsequently submitted that it is now claiming the material in question is exempt under ss 47E(c), 47E(d) and 47F.
5. The issue to be decided in this IC review is whether the material that the Department maintains is conditionally exempt under ss 47E(c), 47E(d) and 47F of the FOI Act is conditionally exempt under those provisions, 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)).
6. 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.[2]
7. In making my decision, I have had regard to the following:
   • the Department's decisions of 29 October 2021, 30 November 2021 and 20 June 2024 and reasons for those decisions
   • the documents at issue
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
   • the parties' submissions.

1. A document or material will be conditionally exempt under this conditional exemption if it contains 'personal information' and disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47F(1)).
2. The Department submitted that it has claimed the ss 47F, 47E(c) and 47E(d) exemptions over material containing the names and other personal information of certain staff members below Senior Executive Service level. I will firstly consider whether this material is exempt under s 47F.

Whether the material contains personal information

1. 'Personal information' under the FOI Act has the same meaning as the equivalent term in the Privacy Act 1988.[6] That definition is set out in Annexure A.
2. I have reviewed unedited copies of the three videos at issue in this IC review. The only redactions that have been made to the videos are to:
   • blur the face of 'AYI'
   • change the pitch of 'AYI''s voice
   • redact 'AYI''s surname in videos 2 and 3, and
   • redact 'AYI''s location in videos 2 and 3.
3. I find that the face, voice pitch, surname and work location of 'AYI' are 'personal information' for the purposes of s 47F(1) of the FOI Act.

Whether disclosure would involve an unreasonable disclosure of personal information

1. In summary, the Department submitted that:
   • disclosure of some of the personal information in the documents at issue would be unreasonable given the risk of harassment to Departmental staff, who are working in a heightened risk environment
   • Departmental staff have been known to be targeted, insulted and/or harassed following the disclosure of their full names and contact details. This can result in stress associated with being contacted directly, outside of intended communication channels for members of the public to interact with the Department
   • the Department's client base is disproportionately comprised of people who have received significant military training compared to the client base of other agencies which have extensive client contact. There is an overall higher risk that a disgruntled client of the Department will be a person who also has the skills, training and capacity to identify staff, determine their location and carry out threats or acts of violence or engage in other behaviour that is dangerous or frightening to staff, if their names and other personal information and identifying features were released
   • on occasions, security incidents[7] have been escalated to emergency services including the police. Such risks substantially challenge the Department's ability to manage the wellbeing and safety of its staff. In turn, this can substantially and adversely affect the ongoing management, retention of and ability to attract future staff by the Department
   • the Department takes its obligations under the Work Health and Safety Act 2011 (Cth) verry seriously[8]
   • the risk of harm exists whether or not the applicant already knows the identity of the individuals named in the documents at issue because, disclosing the name of an individual known to the applicant would exacerbate an existing risk, and disclosing the name of an individual not known to the applicant would create a new risk for that individual, and
   • there is no restriction on what a person may do with information released under the FOI Act, such information may be given to others or made publicly available.
2. The applicant did not provide any submissions specifically in relation to s 47F.
3. I have examined an unedited and unredacted copy of the videos at issue, as well as the parties' submissions. I have considered the mandatory factors in s 47F(2) of the FOI Act as well as the other relevant factors below.
4. I consider that the following factors weigh against disclosure of the material at issue:
   • it is not well known or available from publicly accessible sources
   • it contains biometric and other personal information in relation to 'AYI', and
   • while the Department has not provided any evidence of 'AYI''s views in relation to the release of their personal information, there is a reasonable possibility that they would object to the disclosure of this information.
5. The Department did, however, release to the applicant in full, pursuant to its original decision, a training video featuring 'AYI'. The applicant provided screenshots from that video to the Office of the Australian Information Commissioner (OAIC) in support of his application for IC review. It was clear from that evidence that 'AYI''s face and surname were disclosed to the applicant. Given the video was released in full it is a reasonable assumption for me to make that the applicant is also aware of the actual voice of 'AYI'.
6. The Department has not provided any evidence in relation to why biometric and personal information of 'AYI' that was released to the applicant in the video he received pursuant to the Department's original decision is now being claimed to be exempt in the videos at issue identified in its revised decision. In this regard, I do not consider that the Department has met its onus of satisfying me that I should make a decision adverse to the applicant.

1. I am not satisfied that the material at issue is conditionally exempt under s 47F of the FOI Act.

1. The Department also claimed that the material at issue was exempt under ss 47E(c) and 47E(d). I will now consider whether it is exempt under s 47E(c).
2. Subsection 47E(c) of the FOI Act provides that a document is conditionally 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.
3. In summary, the Department submitted that:
   • disclosure of this information would or could reasonably be expected to have a substantial adverse effect on the Department's ability to effectively manage the wellbeing and safety of its staff
   • knowing that employees' names and other personal information can be routinely released under the FOI Act can reasonably be expected to make the Department a less desirable place to work and reduce staff willingness to remain with the Department
   • staff may not feel safe at work and feel that they are at increased risk of being targeted due to their work with the Department, and
   • it repeats its submissions made in relation to the application of s 47F of the FOI Act relating to harmful impact on staff management and steps taken to address the work, health and safety risks to its staff.
4. The applicant did not provide any submissions specifically in relation to s 47E(c).
5. The Department's submissions are brief and general in nature. For the reasons set out at paragraphs [20] to [21] above, I do not consider that the Department has met its onus of satisfying me that I should make a decision adverse to the applicant.

1. I am not satisfied that the material at issue is conditionally exempt under s 47E(c) of the FOI Act.

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

1. As referred to above, the Department also claimed the s 47E(d) exemption over the material at issue.
2. A document will be conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)).
3. In summary, the Department submitted that:
   • disclosure of the material at issue would or could reasonably be expected to have a substantial effect on the proper and efficient conduct of Department operations
   • it provides government services and payments to veterans. This includes providing income support to 99,732 eligible veterans or dependents, processing 200,200 primary determinations and providing 337,477 Open Arms (counselling) services as set out in the Department's 2023-24 Annual Report
   • it has created specific pathways for publishing information and undertaking public consultation on various topics, usually via its website www.dva.gov.au. Members of the public can provide feedback (compliments, complaints, opinions and suggestions) using mechanisms published at https://www.dva.gov.au/about/feedback
   • it considers that these pathways provide sufficient transparency and opportunity for increased public participation in government processes in a way that promotes public access to information promptly at the lowest reasonable costs (s 3 of the FOI Act)
   • disclosing staff names and other personal information could reasonably be expected to result in clients and others attempting to contact the Department through personal official email addresses and similar means. Such an outcome would be a substantial adverse effect to the Department's operations, as the Department would need to shut down existing pathways to ensure people reach the right area within the Department to help them with the issue they are contacting the Department about, and
   • disclosure of the material at issue could result in harm to Departmental employees of the kind described in the Department's submissions relating to the application of ss 47F and 47E(c), and departing from the established transparency and communication channels would involve additional effort and costs to the Department that would not facilitate and promote public access to information promptly and at the lowest reasonable cost (s 3(4) of the FOI Act).
4. The applicant did not provide any submissions specifically in relation to s 47E(d).
5. The Department's submissions are high-level and general in nature. I am not satisfied that disclosure of the material at issue would result in a significant number of people attempting to contact 'AYI' directly, therefore necessitating the Department having to 'shut down' its existing communication pathways. I also do not consider that the Department has substantiated its claim that disclosure of the material at issue would result in harm to employees, particularly in circumstances, as referred to above, where the Department released personal information of 'AYI' to the applicant pursuant to its original decision.
6. For the above reasons, I do not consider that the Department has met its onus of satisfying me that I should make a decision adverse to the applicant.

1. I am not satisfied that the material at issue is conditionally exempt under s 47E(d) of the FOI Act.

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.

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]

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

Section 47E(d) 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 proper and efficient conduct of the operations of an agency.

As discussed in the FOI Guidelines[11] and in IC review decisions,[12] a document is conditionally exempt under s 47E(d) if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

With respect to the term 'substantial adverse effect', the FOI Guidelines also explain:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons under s 26 to show their deliberations in determining the extent of the expected effect. It may sometimes be necessary to use general terms to avoid making the statement of reasons itself an 'exempt document' (s 26(2)).[13]

Further, in Re James and Others and Australian National University (1984) 6 ALD 687; [1984] AATA 501, Deputy President Hall explained:

As a matter of ordinary English, I think that the expression "the conduct of the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. [14]

Section 47F of the FOI Act states '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).'

Section 4(1) of the FOI Act states 'personal information' has the same meaning as the Privacy Act 1988, which provides:

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.[15]

Section 47F(2) of the FOI Act states that in determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister decision maker must have regard to the following matters:

• the extent to which the information is well known
• 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
• the availability of the information from publicly available sources, and
• any other matters that the agency or Minister considers relevant.

As discussed in the FOI Guidelines and IC review cases,[16] the main requirements of this public interest conditional exemption are that a document contains 'personal information;' disclosure in response to the applicant's FOI request would be 'unreasonable' (s 47(1)); and it would be 'contrary to the public interest' to release the material at the time of the decision (s 11A(5)).

The FOI Guidelines explain that the test of 'unreasonableness' in s 47F 'implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals'.[17]

In addition to the mandatory factors outlined at s 47F(2) of the FOI Act, the FOI Guidelines explain that other relevant factors include:

a) the author of the document is identifiable

b) the document contains third party personal information

c) release of the document would cause stress to the third party

d) no public purpose would be achieved through release.

• the nature, age and current relevance of the information
• any detriment that disclosure may cause to the person to whom the information relates
• any opposition to disclosure expressed or likely to be held by that person
• the circumstances of an agency's or minister's collection and use of the information
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
• any submission an FOI applicant chooses to make in support of their request as to their reasons for seeking access and their intended or likely use or dissemination of the information and
• whether disclosure of the information might advance the public interest in government transparency and integrity.[18]

The last-mentioned factor - the public interest in government transparency and integrity - is to be balanced with all other relevant factors arising in the particular case, including the private interest that third party individuals may have in maintaining privacy of their personal information.[19]

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.

[1] The applicant further submitted that he had only been provided with an edited version of the video as it contained slides. He noted that at the very least he should have been provided with the raw video taken on the phone (the Department advised that the video was recorded on a phone and then saved into DVA record keeping systems).

[3] Sections 11A, 47E(c), 47E(d) and 47F set out in Annexure A.

[4] 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).

[6] Privacy Act 1988 s 6(1) (definition of 'personal information').

[7] The Department submitted that a 'security incident' includes a threat of self-harm to threat to others, concerns for security of Departmental staff or visitors, or unauthorised entry to Departmental premises.

[8] For example, in 2016 the Secretary of the Department agreed to the implementation of a depersonalised signature block on correspondence to clients from delegates. This decision was made in response to concerns about cyber-bulling of staff by clients.

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

[11] See FOI Guidelines at [6.90] - [6.92], and [6.112] - [6.118] and the cases referenced there.

[12] See, Raymond Williams and Department of Defence (Freedom of information) [2023] AICmr 26; Refugee Advice & Casework Service and Department of Foreign Affairs and Trade (Freedom of information) [2023] AICmr 16; Christis Tombazos and Australian Research Council (Freedom of information) [2023] AICmr 14; 'ACF' and Australian Public Service Commission (Freedom of information) [2022] AICmr 73; Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022] AICmr 66; 'ZA' and Department of Veterans Affairs (Freedom of information) [2021] AICmr 83; Australian Society for Kangaroos and Rural Industries Research and Development Corporation trading as AgriFutures Australia (Freedom of information) [2019] AICmr 31; and 'PR' and Comcare (Freedom of information) [2019] AICmr 2.

[13] FOI Guidelines at [6.18] - [6.19] (footnotes omitted).

[15] Section 6(1) of the Privacy Act 1988 (Cth) (emphasis in original).

[16] Generally, see FOI Guidelines at [6.119] - [6.155]; 'AEE' and Department of Defence (Freedom of information) [2023] AICmr 69; 'AED' and Australian Criminal Intelligence Commission (Freedom of information) [2023] AICmr 67; 'OE' and Australian Taxation Office (Freedom of information) [2018] AICmr 29.

[18] FOI Guidelines at [6.137] - [6.138] (footnotes omitted).