Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

'C' and Department of Agriculture, Fisheries and Forestry [2013] AlCmr 8 (18 February 2013)

Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim

Summary of case details
Applicant:

'C'

Respondent: Department of Agriculture, Fisheries and Forestry
Decision date: 18 February 2013
Application number: MR11/00179
Catchwords:

Freedom of information — Request for access to the result of a secret ballot — Whether edited version of document conditionally exempt from release — Whether edited version is reasonable (CTH) Freedom of Information Act 1982 ss 22, 47E, 47F

  Contents

 Summary

  1. I affirm the decision of the Department of Agriculture, Fisheries and Forestry (the Department) of 28 June 2011 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act).

 Background

  1. On 28 April 2011, the applicant requested access to 'the electronic voting tally ... for the election of [a] Health and Safety Representative (HSR) for' a work area within the Department.
  2. The Department conducted a secret ballot for the election of the HSR in the relevant work area between January and February 2011. The applicant was a candidate in the ballot, which was terminated early due to alleged violations of Departmental HSR election guidelines. The applicant was not informed how many votes he received before the election was declared null and void.
  3. On 27 May 2011, the Department advised that it had identified one document within the scope of the applicant's request. The Department also advised that, following discussions with the applicant, it understood that the applicant was not interested in the names of the voters in the election and had agreed to revise the scope of his request accordingly. Consistent with this understanding, the Department deleted the names of those officers who had participated in the election on the basis that it was irrelevant to the applicant's request (s 22).
  4. The remainder of the document was exempted from disclosure under the operations of agencies exemption (s 47E(c) and (d)).
  5. On 29 May 2011, the applicant requested internal review of the Department's decision. As well as challenging the Department's reliance on s 47E, the applicant stated that he had not agreed to revise the scope of his request as understood by the Department and that the eligible voters' names were within the scope of his FOI request.
  6. On 28 June 2011, the Department affirmed its initial decision to exempt the document on the basis of s 47E and the personal privacy exemption (s 47F).
  7. On 1 July 2011, the applicant sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department on 28 June 2011 to refuse the applicant's request.

 Certain operations of agencies exemptions (s 47E)

  1. The document identified by the Department contains the voting tally of the ballot conducted by the Department for the HSR position, including the names of eligible voters and the votes of those who participated in the ballot prior to it being terminated.
  2. Section 47E(c) and (d) of the FOI Act relevantly provides:

    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;

    (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

  3. In the reasons for its decision, the Department decided that disclosure of the document, in whole or part, would have a substantial and adverse effect on its management of personnel and the conduct of its operations.
  4. I am satisfied that the election was conducted as a 'secret' ballot and disclosure of the document would adversely impact on the Department's ability to conduct future staff voting processes or surveys where staff have been advised that their votes, comments or feedback would be received in confidence.
  5. The Department also contended that the disclosure of the document would undermine the Department's decision to declare the voting process null and void as staff would be less likely to participate in future voting processes or surveys initiated by the Department.
  6. The Department further considers that the voting and survey process provides an efficient and effective means to assess the operation of its policies and procedures. A reduction in staff participation would impact on the utility of future surveys for this purpose.
  7. I am satisfied that the disclosure of the document would have a substantial and adverse effect on the Department's management of personnel and conduct of its operations by impacting on the number of staff willing to participate in staff voting or surveys.

 Findings

  1. The document the applicant seeks is conditionally exempt under s 47E of the FOI Act.

 Personal privacy exemption (s 47F)

  1. 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).
  2. Section 4 provides that personal information means 'information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'.
  3. The document at issue contains the name of individuals who were eligible to vote, who did vote, the time they voted and the name of the candidate they voted for in the HSR election. This information clearly falls within the definition of 'personal information' as defined in s 4(1) of the FOI Act.
  4. It is my view that disclosure of the personal information in the document that the applicant seeks would be unreasonable. This information is not already well known, and is not otherwise publicly accessible. Given the ballot was explicitly a secret ballot, voters had a clear expectation that their vote would not be disclosed.

 Findings

  1. I agree with the Department that the document contains the personal information about individuals other than the applicant and is conditionally exempt under s 47F of the FOI Act.

 The public interest test (s 11A(5))

  1. I have found that the documents that are the subject of this IC review are conditionally exempt under s 47F and s 47E of the FOI Act. Section 11A(5) 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'.
  2. Section 11B(3) of the FOI Act lists factors that favour access when applying the public interest test.[1] The Guidelines include a non-exhaustive list of factors that favour disclosure.[2] I have reviewed the document. I find that the only factor favouring access is that providing the document to the applicant would allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.
  3. The document that the applicant seeks is the outcome of a terminated secret ballot. It is possible that there is a public interest in releasing documents that shed light on how such a ballot was conducted for the purpose of giving assurance as to the integrity of the ballot process. However, the document at issue would reveal nothing about the process of the secret ballot as it is only a list of names and votes cast.
  4. Further, in the course of this IC review, the Department agreed to provide the applicant with a description of the document and the results of the ballot, which I consider provides the applicant with meaningful information regarding the voting process and results of the election up to the point it was declared null and void. The description stated:

    In relation to the election held in January 2011, for the Health and Safety Representative (HSR) ... the Occupational Health and Safety (OHS) Returning Officer opened and validated six votes at random in order to check that the Microsoft Outlook automatic voting tally was operating correctly during the election process. Of the votes opened and validated, three were for [the applicant]. As the election was terminated before voting closed due to candidate non-compliance with section 2.6.2 of the Central East Region guidelines, the remaining votes were never tallied and the election ended without a result.

  5. The Guidelines also include a non-exhaustive list of factors against disclosure.[3] The factors that are relevant to this IC review are that disclosure:
    • could reasonably be expected to prejudice the protection of an individual's right to privacy
    • could reasonably be expected to harm the interest of an individual or group of individuals
    • could reasonably be expected to prejudice the management function of an agency.
  6. The employees who voted in the ballot did so on the understanding that their votes would be received and stored in confidence. It is in the public interest that information obtained in confidences remains as such. Otherwise, there would be a clear prejudice and harm to an individual's privacy. Disclosure would also impact the ability of the Department to hold future staff voting processes or surveys and is likely to result in staff being less likely to participate in future elections and surveys. This would inhibit the Department from obtaining accurate results or quality feedback in the future and therefore have a substantial adverse effect on the ability of the agency to manage its personnel functions.
  7. In balancing the factors for and against disclosure, I give the greatest weight in this IC review to the factors against disclosure.

 Findings

  1. Giving the applicant access to the document would, on the balance, be contrary to the public interest.

 Access to edited copy with exempt or irrelevant matter deleted (s 22)

  1. I have found that the document is exempt under ss 47E and 47F. However, normally when a document contains exempt material, it is open to the agency to prepare an edited version of the document with exempt material deleted under s 22.
  2. I have inspected the document identified within the request. It contains two columns. The left-hand column lists the names of employees who were eligible to vote. The right-hand column lists the vote that each employee named in the left-hand column cast, including the time and date on which the vote was cast, and who the vote was for. As the election was terminated early, many rows of the right hand column do not have a vote recorded against the employee's name.
  3. In his application for IC review, the applicant stated that he 'would understand if the names of the voters were blacked out.' In later correspondence with this office, the applicant confirmed that he was 'not interested in the names of the voters'. Therefore, the issue is whether it would be reasonably practicable to prepare an edited copy of the document that redacted the names of eligible voters in the left-hand column.[4]
  4. In this particular case, redacting the voter's names is not sufficient to prevent the employees from being identified because the names and number of eligible voters is known to the applicant and the order of these names is alphabetical.
  5. The list of voters consists of 30 people who work in the same shift group in the Department and are therefore well known to both the applicant and each other. Because the shift hours worked by the list of voters limits their access to a computer to cast a vote, it is possible that information about the date and time of the vote could also reveal information about the voter that could disclose their identity to the applicant. Therefore, redacting the left-hand column containing the names of employees who were eligible to vote would not prevent the applicant being able to deduce the employees who voted and who they voted for.

 Findings

  1. I find that it would not be reasonably practicable to prepare an edited copy of the document for release to the applicant.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of the 28 June 2011.

 

Timothy Pilgrim
Privacy Commissioner

18 February 2013

Review rights

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 $816, 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] These are whether access to the document would promote the objects of the FOI Act; inform debate on a matter of public importance; promote effective oversight of public expenditure; or allow a person to access his or her own personal information.

[2] Guidelines, [6.25].

[3] Guidelines, [6.29].

[4] As permitted by s 22 of the FOI Act.