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Carver and Fair Work Ombudsman [2011] AICmr 5 (27 July 2011)

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Decision and reasons for decision of Freedom of Information Commissioner, Dr James Popple 

Summary of case details
Applicant: Phillip Carver
Respondent: Fair Work Ombudsman
Decision date: 27 July 2011
Application number: MR11/00002
Catchwords:

Freedom of information – Request for access to documents relating to an investigation under the APS Code of Conduct – Whether documents conditionally exempt from release – (CTHFreedom of Information Act 1982ss 47C, 47E, 47F

Freedom of information – Request for access to documents relating to an investigation under the APS Code of Conduct – Whether contrary to public interest to release conditionally exempt documents – (CTHFreedom of Information Act 1982 s 11A(5)


 Contents

 Summary

1. I set aside the access refusal decision of the Fair Work Ombudsman (the FWO) of 22 December 2010 and substitute my decision, under ss 11A(5) and 22 of the Freedom of Information Act 1982 (the FOI Act), refusing access to some of the documents sought and granting access, some modified by deletions.

 Background

2. Mr Phillip Carver was an employee of NHS Australia Pty Ltd (NHS). He lodged a complaint with the FWO regarding wage and employment conditions. On 31 May 2010, Mr Carver entered into a deed of settlement with NHS. Under the terms of the deed, Mr Carver agreed, amongst other things, not to pursue claims jointly with, or support claims brought by, other NHS employees (current or past).

3.On 9 June 2010, Mr Carver attended the office of the FWO with another employee of NHS who had also made complaints against NHS to the FWO. She and Mr Carver met with officers of the FWO to discuss her complaints.

4. On 16 and 28 July 2010, Mr Carver lodged a series of complaints about the conduct of two FWO inspectors arising from what happened after the meeting on 9 June. Mr Carver alleged that the FWO inspectors had inappropriately disclosed to other parties information relating to the settlement agreement with his previous employer. Mr Carver also alleged that both inspectors gave false and misleading information to NHS's legal representative that led to that legal representative writing to Mr Carver about an apparent breach of the deed. Mr Carver complained that both inspectors had breached the APS Code of Conduct.[1]

5. On 1 November 2010, Mr Carver sought access, under the FOI Act, to documents held by the FWO relating to:

  • communications concerning him between NHS and the FWO
  • communications concerning him between the two FWO inspectors about whom he had made complaints
  • the review of his complaints by the FWO
  • communications between the FWO complaint reviewers; and
  • communications between the FWO complaint reviewers and NHS and NHS's legal representatives.

6. With its reasons for decision, the FWO provided Mr Carver with a schedule of 48 documents that fell within the scope of his request. The FWO gave him full copies of 19, edited copies of 14, and refused access to 15 of those documents. In not providing full access to all of the documents, the FWO relied upon the deliberative processes exemption (s 47C of the FOI Act) and the personal privacy exemption (s 47F).

7. On 31 December 2010, Mr Carver sought IC review of this decision under s 54L of the FOI Act. 

Decision under review

8. The decision under review is the decision of the FWO of 22 December 2010 to refuse Mr Carver full access to 29 of the 48 documents identified as relevant to his request. 

Deliberative processes exemption (s 47C)

9. Section 47C(1) of the FOI Act provides:

47C Public interest conditional exemptions—deliberative processes

General rule

(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a)   an agency; or

(b)   a Minister; or

(c)   the Government of the Commonwealth; or

(d)   the Government of Norfolk Island.

10. In its reasons for decision, the FWO identified 19 of the 48 documents sought that ‘contain opinion, advice and recommendations of Fair Work Ombudsman officers concerning the conduct of code of conduct investigations into complaints made by [Mr Carver] against [two named FWO officers]'. A further five documents, the FWO said, ‘contain opinion and advice concerning matters incidental to the code of conduct complaints'. The FWO decided that the deliberative processes exemption applied to these 24 documents and that, on balance, providing access to the documents would be contrary to the public interest. Access was refused to 15 of these documents,[2] and edited copies of the remaining nine documents[3] were provided to Mr Carver.

11. It is implicit from the FWO's reasons for decision that the FWO took the view that undertaking Code of Conduct investigations is one of the ‘functions' of the FWO, for the purposes of s47C.

12. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. As the Guidelines explain, when discussing the meaning of ‘functions of the agency' in s 8 of the FOI Act:

Agencies have incidental powers and functions to complement those expressly conferred on the agency. These incidental powers and functions enable an agency to carry on its business and administer the affairs of government. Examples are the corporate functions of an agency, such as its human resource, public relations and property management activities. Other incidental activities of government agencies include administering FOI requests and complying with the Financial Management and Accountability Act 1997.[4]

13. The Guidelines make it clear that an agency's obligation, under s 8(2)(c), to publish details of its functions does not apply to these incidental functions.[5] By analogy, the reference in s 47C to the ‘deliberative processes involved in the functions of ... an agency' would not apply to these incidental functions. The FWO's function of undertaking Code of Conduct investigations of its own staff is one of these incidental functions.

14. But the concept of an agency's functions is different in s 8 than it is in s 47C. The information publication scheme, enacted by Part II of the FOI Act (which includes s 8), does not extend to the publication of details of an agency's incidental functions. However, there have been several cases[6] where a broad view has been taken of the meaning of ‘the deliberative processes involved in the functions of an agency' in s 36(1)(a) of the FOI Act, which was repealed when s 47C was inserted.[7] Following those cases, the function of undertaking Code of Conduct investigations is a function of the FWO for the purposes of s 47C.

15. I have examined unedited copies of the 24 documents that the FWO considered exempt under s 47C. The FWO was correct in deciding that disclosure of any of those 24 documents would disclose deliberative matter about the FWO's Code of Conduct investigations. 

Findings

16. The following documents, as numbered in the schedule of documents, are conditionally exempt under s 47C:

  • documents 15, 19, 21–26, 28–40, 46–48.

If these documents are exempt, it will not be reasonably practical for the FWO to provide Mr Carver with edited copies under s 22, having regard to the extent of the modifications that would be required.[8] 

Certain operations of agencies exemption (s 47E)

17. Section 47E of the FOI Act relevantly provides:

47E Public interest conditional exemptions-certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

...

(c)    have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency

...

18. The FWO did not refer to s 47E in its reasons for deciding to refuse Mr Carver full access to the documents he sought.

19. In Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900, the Administrative Appeals Tribunal (the Tribunal) considered the meaning of ‘substantial adverse effect on the management or assessment of personnel' in s 40(1)(c) of the FOI Act, which was repealed when s 47E was inserted.[9] The Tribunal decided that disclosing a consultant's report, which had been prepared in response to a complaint about treatment in the workplace, would not have a substantial adverse effect. But, in that case, the agency had asserted that the substantial nature of the adverse effect was, ‘at least in part, related to the impartiality and independence that would be lost if consultants were no longer engaged to investigate personnel matters because of the risk that their opinions, findings and recommendations, whether right or wrong, may be disclosed publicly'.[10] The issues in this IC review are different.

20. More on point is the earlier decision of Wilson and Australian Postal Corporation [1994] AATA 189. The Tribunal agreed with the agency that, by disclosing the statements submitted by staff members in relation to a particular incident, the agency would create a reluctance on the part of staff members to provide statements in respect of future misconduct or inappropriate behaviour in the work environment. This, the Tribunal decided, would mean that serious work incidents would go unreported and management would not be in a position to take steps to rectify work-related problems or potentially serious work situations. The Tribunal was also of the view that disclosure of confidential statements would be likely to impact detrimentally on the morale of staff members.[11]

21. The Guidelines explain that, for s 47E to apply:

An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect and the reasons behind the identification of those particulars should be articulated during the decision making process. Those particulars should also indicate whether the effect could reasonably be expected to occur.[12]

22. An assertion that an APS employee has breached the APS Code of Conduct is a serious allegation. When undertaking a Code of Conduct investigation of 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 that it collects in such investigations is as frank as possible. Anyone providing such 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 Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management or assessment of the agency's personnel.

23. I have considered the application of s 47E to the unedited copies of the 24 documents that the FWO identified as being exempt under the deliberative processes exemption (s 47C).[13] Some of the information that was removed from the edited copies provided to Mr Carver, or was in documents not provided to him, is not conditionally exempt under s 47E. It relates to the steps that the FWO took in these Code of Conduct investigations. The disclosure of these documents would not have a substantial adverse effect on the management or assessment of personnel by the FWO. On the contrary, these documents support the view that these investigations were appropriately conducted by the FWO.

24. However, some of the documents that are conditionally exempt under s 47C are also conditionally exempt under s 47E. These are the documents, or parts of documents, that contain information about the evidence provided by FWO officers and others during the course of the Code of Conduct investigations. I think that disclosure of this information could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations-by the FWO or by other agencies. This would have a substantial adverse effect on the FWO's capacity to manage and assess its personnel. 

Findings

25. The following documents, as numbered in the schedule of documents, are conditionally exempt under s 47E:

  • documents 29–32, 34, 36, 37, 40 and 48.

If these documents are exempt, it will not be reasonably practical for the FWO to provide Mr Carver with edited copies under s 22, having regard to the extent of the modifications that would be required.

26. The following documents are conditionally exempt under s 47E and, if exempt, edited copies could be provided to Mr Carver under s 22 as follows:

  • document 25 (with page 2 deleted from the third paragraph inclusive)
  • document 26 (with the text that is duplicated in document 25 deleted as for that document)
  • document 38 (with page 2 deleted)
  • document 39 (with pages 2 and 3 deleted)
  • document 46 (with pages 2 and 3 deleted); and
  • document 47 (with pages 3–5 deleted).

 

Personal privacy exemption (s 47F)

27. Section 47F(1) of the FOI Act provides:

47F Public interest conditional exemptions-personal privacy

General rule

(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).

28. In its reasons for decision, the FWO identified the following personal information in five of the 48 documents sought by Mr Carver, for the purposes of the conditional exemption in s 47F:

  • the name of an individual unrelated to the complaints[14]
  • email addresses;[15] and
  • information about personal assistance.[16]

29. The FWO decided that the personal privacy exemption applied to these five documents and that, on balance, providing access to the documents would be contrary to the public interest. Edited copies of the five documents were provided to Mr Carver.

30. As the Guidelines explain:

The personal privacy exemption is designed to prevent the unreasonable invasion of third parties' privacy.[17] The test of ‘unreasonableness' implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not however amount to the public interest test of s 11A(5), which follows later in the decision making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance.[18]

31. All 29 of the documents that are the subject of this IC review contain personal information about FWO officers. However, where a public servant's personal information is included in a document because of their usual duties or responsibilities, it will generally not be unreasonable to disclose that personal information.[19]

32. Most of the documents that are the subject of this IC review relate to the work performance of the two FWO inspectors about whom Mr Carver complained. In response to Mr Carver's FOI request, the FWO consulted those two officers who both raised objections to their personal details being released to Mr Carver.

33. In Department of Social Security v Dyrenfurth (1988) ALD 232; [1988] FCA 148, the Federal Court considered the relationship between an assessment of a person's work performance or work capacity and that person's ‘personal affairs' (the term that was then used in the personal privacy exemption in the FOI Act [20]). The Court explained that such an assessment can contain personal information, but that such an assessment is not personal information per se:

... information relating to the personal affairs of a person such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information.[21]

34. I have examined unedited copies of the five documents[22] that the FWO decided were exempt under s 47F:

  • I agree with the FWO that the name of an individual unrelated to Mr Carver's complaints is personal information that it would be unreasonable to disclose. This appears in two of the documents.[23]
  • I do not agree that it would be unreasonable to disclose the email addresses that were deleted from the edited copies of two documents. Email addresses can be personal information, but they are included in these documents because of public servants' usual duties or responsibilities.
  • I do not agree that it would be unreasonable to disclose the ‘information about personal assistance' that the FWO deleted from the edited copies of four documents, for the reasons discussed below. 

Information about personal assistance

35. The FWO edited copies of four of the documents, before they were provided to Mr Carver, because they contained ‘information about personal assistance'. These four documents are the two letters (and covering emails) that were sent by the FWO to the two FWO inspectors, advising them of the result of the investigation of Mr Carver's complaints against them. Each letter advised that the writer (the FWO's Acting Executive Director of Human Resources) had considered a preliminary assessment report and information provided in response by each FWO inspector. In one case she advised that she had determined that the evidence did not support a finding of a breach of the APS Code of Conduct. In the other she advised that she had determined that further investigation of the allegations under the FWO's formal procedures for determining breaches of the Code of Conduct was not warranted. In each letter she advised that she considered the complaint as being closed.

36. In each letter, the writer encouraged the recipient to contact the FWO's employee assistance program. The FWO removed that paragraph from the edited copies that it provided to Mr Carver. Reminding employees of the availability of such services is a good practice for an agency, given the personal stresses that can be caused by being the subject of a complaint. But I do not think that this information is personal information about the two FWO inspectors.

37. In one of the letters, the writer also advised that she would be recommending to another FWO officer that the recipient of that letter participate in a debriefing process in relation to the complaint. The FWO also removed that paragraph from the edited copy that it provided to Mr Carver. This information relates to the work performance of the FWO inspector who received that letter. Having regard to the Federal Court's decision in Dyrenfurth,[24] I do not think that this is personal information about her for the purposes of s 47F. 

Findings

38. Document 27, as numbered in the schedule of documents, is conditionally exempt under s 47F. If exempt, a copy could be provided to Mr Carver under s 22, edited (as it was by the FWO) to remove the name of an individual unrelated to Mr Carver's complaints. Document 27 is duplicated in document 39, which I have already found conditionally exempt under s 47E.

 The public interest test (s 11A(5))

39. I have found that 25 of the 29 documents that are the subject of this IC review are conditionally exempt.[25] Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'.

40. As the Guidelines explain, ‘[t]he pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure'.[26]

41. Of the factors favouring disclosure set out in s 11B(3), two are relevant to this IC review: promoting the objects of the FOI Act, and allowing a person (Mr Carver) to access his own personal information.[27] But the principal factor favouring disclosure in this IC review is the importance of transparency in investigations of the work-related conduct of public officials. The Tribunal considered similar issues in Albanese and said:

There is a public interest in ensuring that serious allegations against a senior officer in public employment are properly investigated. That interest may be promoted by providing transparency in such processes, being mindful of the privacy of those concerned. I accept that there is a public interest in [the agency's] ability to effectively manage its employees, particularly with regard to the independent and impartial investigation of complaints ... However that must be weighed against the public interest in ensuring that complaints of a serious nature involving serious allegations of misconduct or misbehaviour in the administration of a Commonwealth agency are properly and appropriately investigated and dealt with, and all those involved are afforded procedural fairness. In that regard the public interest in the administration of justice weighs heavily in the balance and must be considered.[28]

42. Against these factors must be balanced the factors against disclosure. The FOI Act does not specify any factors against disclosure, but the Guidelines include a non-exhaustive list of such factors.[29] Of those factors listed in the Guidelines, the ones relevant to this IC review are those that Ihave discussed above when considering the applicability of conditional exemptions. In relation to the deliberative processes exemption (s 47C) and the certain operations of agencies exemption (s 47E) [30] these are that disclosure:

  • could reasonably be expected to prejudice an agency's ability to obtain confidential information
  • could reasonably be expected to prejudice an agency's ability to obtain similar information in the future; and
  • could reasonably be expected to prejudice the management function of an agency.

In relation to the personal privacy exemption (s 47F) these are that disclosure:

  • could reasonably be expected to prejudice the protection of an individual's right to privacy.

43. I think that all four of these factors against disclosure should be weighted heavily in this case. In relation to the first three factors, disclosure would cause a significant harm if it prejudiced the FWO's capacity to undertake Code of Conduct investigations. In relation to the last factor, it must be remembered that the individual whose right to privacy is being considered is a person unrelated to Mr Carver's complaints.

44. In balancing these factors for and against disclosure, I think it is important that the documents given to Mr Carver in response to his FOI application (the documents that the FWO has already given to him, and those that the FWO decided were exempt but Ihave decided are not) provide a high level of transparency about the FWO's investigation of Mr Carver's complaints. 

Findings

45. Giving Mr Carver access to the 16 documents that I have found to be conditionally exempt under s 47E and s 47F [31] would, on balance, be contrary to the public interest for the purposes of s 11A(5). However, edited copies of seven of those documents could be provided to Mr Carver under s 22.

46. Giving him access to the nine documents that I have found to be conditionally exempt only under s 47C [32] would not, on balance, be contrary to the public interest. 

Disclosure log

47. Since 1 May 2011, agencies and ministers have been required by s 11C of the FOI Act to publish on a website, to the public generally, information that has been released in response to each FOI access request, subject to some exceptions. This publication is known as a ‘disclosure log'.[33]

48. One of the exceptions to this requirement to publish is where the documents in question contain ‘personal information about any person, if it would be unreasonable to publish the information' (s 11C(1)(a)). Several of the documents that Mr Carver has sought, and which I have decided are not exempt from disclosure, contain personal information about FWO officers, including the FWO inspectors about which Mr Carver complained.

49. It is for the FWO to decide whether these documents should be published on the disclosure log. The test that the FWO has to apply (whether it would be unreasonable to publish the information on a website to the public generally) is different to the test that I have applied in this IC review (whether it would be unreasonable to disclose that information to Mr Carver). 

Decision

50. Under s 55K of the FOI Act, I set aside the FWO's decision of 22 December 2010 and decide, in substitution for that decision, that:

  • the following documents, as numbered in the schedule of documents, are exempt and it is not reasonably practical for the FWO to provide Mr Carver with edited copies under s 22, having regard to the extent of the modifications that would be required:
  • documents 29–32, 34, 36, 37, 40 and 48
  • the following documents are exempt, but edited copies should be provided to Mr Carver under s 22 as follows:
    • document 25 (with page 2 deleted from the third paragraph inclusive)
    • document 26 (with the text that is duplicated in document 25 deleted as for document 25)
    • document 27 (edited, as it was by the FWO, to remove the name of an individual unrelated to Mr Carver's complaints)
    • document 38 (with page 2 deleted)
    • document 39 (with pages 2 and 3 deleted, and with page 4 edited as document 27 was edited by the FWO)
    • document 46 (with pages 2 and 3 deleted)
    • document 47 (with pages 3–5 deleted); and
  • the remaining documents that are the subject of this IC review are not exempt, and Mr Carver should be given access to them, namely:
    • documents 15, 19, 21–24, 28, 33, 35, 42–45.

James Popple

Freedom of Information Commissioner

27 July 2011

Review right

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 Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] The APS Code of Conduct is set out in s 13 of the Public Service Act 1999. The Code imposes obligations on APS employees (people engaged under the Act).

[2] Documents 25, 26, 28–30, 33–40, 46 and 47 in the schedule of documents.

[3] Documents 15, 19, 21–24, 31, 32 and 48.

[4] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010) [13.46].

[5] Guidelines [13.47].

[6] For example, Harris v Australian Broadcasting Corporation (1983) 5 ALD 545; [1983] FCA 242; Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588; [1984] AATA 67; Re Murtagh and Federal Commissioner of Taxation (1984) 6 ALD 112; [1984] AATA 249; Re Reith and Attorney-General's Department (1986) 11 ALD 345; [1986] AATA 437.

[7] Section 36 of the FOI Act was repealed, and s 47C inserted, by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010.

[8] See s 22(1)(c)(i).

[9] Section 40 of the FOI Act was repealed, and s 47E inserted, by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010.

[10] [2006] AATA 900, [20] (Webb M).

[11] [1994] AATA 189, [20]–[24] (McMahon DP).

[12] Guidelines [6.94].

[13] See [10] and [15]–[16] above.

[14] Document 27, which is duplicated in document 39.

[15] Documents 44 and 45

[16] Documents 42-45.

[17] See Re Chandra and Department of Immigration and Ethnic Affairs [1984] AATA 437.

[18] Guidelines [6.126].

[19] Guidelines [6.139].

[20] Section 29(1) of the Freedom of Information Amendment Act 1991 amended s 41(1) of the FOI Act by replacing ‘information relating to the personal affairs of' any person with ‘personal information about' any person, with effect from 25 October 1991. Section 41 was repealed, and s 47F inserted, by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010. Section 47F also uses the term ‘personal information'.

[21] [1988] FCA 148, [22] (Sweeney, Keely and Ryan JJ).

[22] Documents 27 and 42–45.

[23] Document 27, which is duplicated in document 39.

[24] [1988] FCA 148 (see [33] above).

[25] Documents 15, 19, 21–40 and 46–48 (see [16], [25], [26] and [38] above).

[26] Guidelines [6.12].

[27] Sections 11B(3)(a) and 11B(3)(d), respectively.

[28] Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900, [15] (Webb M).

[29] Guidelines [6.29].

[30] These factors are discussed above in relation to s 47E (see [20]–[24]) but not in relation to s 47C. That is because the certain operations of agencies exemption in s 47E requires that disclosure would cause harm, or could reasonably be expected to cause harm. The deliberative processes exemption in s 47C does not require that there be any harm in order for a document to be conditionally exempt; all that is required is that the document includes content of a specific type: deliberative matter. However, the question of a possible harm resulting from disclosure is relevant when applying the public interest test regardless of which conditional exemption applies.

[31] Documents 25–27, 29–32, 34, 36, 37, 39, 40, 47 and 48.

[32] Documents 15, 19, 21–24, 28, 33, 35, 38 and 46.

[33] See Guidelines, part 14.