18 August 2016
Mr Jack Houghton
Reporter
2 Holt Street Surry Hills NSW 2010
Via email:
Dear Mr Houghton
Freedom of Information Request
I am writing to advise you of my decision in respect of your request under the Freedom of Information Act 1982 (FOI Act) for access to documents which you sent to the Federal Circuit Court customer email address on 20 July 2016.
Authority
I am authorised under section 23 of the FOI Act to make decisions on behalf of the Federal Circuit Court in relation to your FOI request.
Scope of Request
You request access to 'official documents' relation to the 'conclusionof an investigation conducted into theconduct of Judge's Associate James Cowled.'
You go on to request 'all correspondence from any Federal Circuit Court Employee in e-mails or official documents which relate to 'James Cowled' and the investigation'
Search
A search of the Court's records was conducted and the following documents were identified as falling within the scope of your request:-
1. / 05.05.16 / Email from Director Human Resources to CEO Richard Foster re: Code of Conduct enclosing (1A) draft letter to Mr Cowled (1B) draft Instrument of Appointment and (1C) copy of Court's procedures
2. / 06.05.16 / Email from Senior HR Advisor to Director of Human Resources re: Code of Conduct
3. / 06.05.16 / Email chain between CEO Richard Foster, the Executive Director Operations and the Director of Human Resources re: Google Alert – Federal Circuit Court
4. / 06.05.16 / Email from Executive Assistant to CEO Richard Foster to Director of Human Resources re: Code of Conduct, attaching a (4A) signed Instrument of Appointment and (4B) copy of letter from Chief Executive Officer to Mr Cowled
5. / 10.05.16 / Email from Senior HR Advisor to CEO Richard Foster, the Director of Human Resources, and Others re: Court record and (5A) copy of court record
6. / 06.06.16 / Email re: Code of Conduct Investigation from Senior HR Advisor to CEO Richard Foster attaching a (6A) covering memorandum (6B) report, findings and recommendation on sanctions, a (6C) suggested letter to Mr Cowled and a (6D) copy of court record
7. / 07.06.16 / Email re: Code of Conduct Investigation from Executive Assistant to CEORichard Foster to Senior HR Advisor attaching a (7A) signed copy of the letter sent by CEO Richard Foster to Mr Cowled
8. / 14.06.16 / Email from Senior HR Advisor to CEO Richard Foster and copied to others attaching a (8A)suggested draft letter to Mr Cowled
9. / 15.06.16 / Email from Executive Assistant to CEO Richard Foster enclosing a (9A) copy of a letter dated 15 June 2016 to Mr Cowled from CEO Richard Foster
Summary of Decision
You have sought access to 'official documents' relation to the 'conclusion of an investigation conducted in to the conduct of Judge's Associate James Cowled'. You have further requested ' all correspondence from any Federal Circuit Court Employee in e-mails or official documents which relate to James Cowled and the investigation'.
In relation to this request, I note the circumstances surrounding the particular misconduct complaint. In particular, the fact that the conduct of the employee was the subject of media reports.The investigation has been reported and is a matter of public knowledge. I have also considered the request in light of public sector requirements pertaining to misconduct investigations and the relevant circulars and case law which highlight the competing public interests.
The Public Service Act 1999 (PS Act) includes a Code of Conduct that sets out in section 13, the behavioural standards expected of APS employees. Section 15(3) of the Act requires agency heads to establish procedures, having due regard to procedural fairness, for determining whether an employee has breached the Code of Conduct and what sanctions, if any, are to be imposed if a breach is found.
In the course of conducting a Code of Conduct investigation, personal information needs to be gathering about employees and other persons involved in the events associated with the alleged breach. Personal information must be handled within the boundaries set by the Privacy Act, the PS Act and accompanying Regulations.
Various Guidance documents have been issued by the APS and the Public Service Commission to guide agencies when considering request for disclosure.The guidance material is aimed at assisting agencies in deciding the extent of the information to be given to complainants about the outcome of their complaints in light of the Australian Privacy Principles and the legitimate need to realise people's expectations of privacy in handling of personal information pertaining to investigations.
In this regard I refer you to the following:-
- Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants:-
- 2014 Australian Public Service Commission Discussion Paper Privacy and Transparency: Disclosing outcomes of misconduct complaints - a discussion paper, feedback from which is intended to contribute to revised guidance to agencies:-
- Disclosing outcomes of misconduct complaints:-
These documents point to a greater degree of disclosure in respect of the provision of information about the outcome of an investigation and even recognise that there may be circumstances in which it is appropriate to disclose such information to the broader public.This is recognised in the requirement that an employee whose employment has been terminated for misconduct is noted in the APS Gazette.
I note your request is as a member of the public and not as another employee or complainant. I also note you do not seek information solely about the outcome but more widely to documents pertaining to this investigation. Accordingly the agency is under an obligation to ensure that where appropriate, necessary, and reasonable, personal information about an employee will remain confidential. Unauthorised disclosure of confidential information is prescribed by the Agency’s Code of Conduct.
Many of the documents you have sought contain material obtained in confidence. Confidentiality is a key aspect of the investigatory process. There is a public interest in ensuring that complainants and other witnesses are willing to speak openly and frankly. It is important to protect those who are the subject of a complaint and the integrity of the process generally. In this regard I refer to Carver and Fair Work Ombudsman [2011] AICmr 5 in which it was noted that wide disclosure of evidence provided to misconduct investigations ' 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.'.
I have decided to release the following documents:
I have decided to release the following documents
Document identified in 1 (c) which is intended as a public document and accordingly I have attached a copy.
Copy of the newspaper article attached to the email chain documents identified in 3.
Copy of the signed Instrument of Appointment (but with the name of the investigator deleted). The Instrument merely sets out the relevant statutory requirements and is therefore released but with the name of the Investigator deleted.
Relevant page from APS Gazette showing Retirement/Termination details. This information is available to the public and there is a requirement that an employee whose employment has been terminated for misconduct is noted in the Gazette.
I have refused access to the remaining documents under one or more of the following exemption sections of the FOI Act (ss 47C,47E(c) and /or 47F).
I set out below my findings in full of fact and reasons in respect of each of these documents and the exemption(s) applicable.
It would not be possible to prepare an edited or redacted copy of the document modified by deletion to remove exempt material as provided for under section 22 of the Act as the deletions would be so extensive that the resulting document would be of no value to you whatsoever.
1. / 05.05.16 / Email from Director Human Resources to CEO Richard Foster re: Code of Conduct enclosing (1A) draft letter to Mr Cowled (1B) draft Instrument of Appointment and (1C) copy of Court's procedures2. / 06.05.16 / Email from Senior HR Advisor to Director of Human Resources re: Code of Conduct
3. / 06.05.16 / Email chain between CEO Richard Foster, the Executive Director Operations and the Director of Human Resources re: Google Alert – Federal Circuit Court
I have declined your request for access in respect of all the documents in 1, 2 & 3 except document 1(c) and media article in document 3. The email and draft documents attached would disclose certain deliberative matters as set out in section 47C of the Act and are therefore conditionally exemption. It would in my view be contrary to the public interest were communications between the Director of Human Resources and the Chief Executive Officer released. I have considered factors favouring access in subsection 11B(3) and have not had regard to factors that are irrelevant in subsection 11B(4). The opinion, advice and recommendation conveyed in the email and draft attachments were prepared and given in the course of, or for the purposes of, the deliberative processes of the Chief Executive Officer in deciding whether to establish a Code of Conduct investigation. I note the balancing factors are set out in section 11B. In favour of disclosure it is noted that the matter had been the subject of various press reports.The document may inform the community generally about the factors considered in a determination as to whether to undertake a Code of Conduct investigation. Access could also enhance the scrutiny of government decision making and inform public debate.Against disclosure is that the release of these documents could reasonably be expected to prejudice the ability of the Chief Executive Officer (and Agency Heads generally) to obtain, in the future, full frank and candid opinions advice and recommendations to assist in deciding whether or not to establish a Code of Conduct investigation. These factors outweigh those in favour of the release of the documents.
The request is also declined as the documents fall within the personalinformation conditional exemption of the Act. In particular sections 47F and 11A(5). I have considered factors favouring access in subsection 11B(3) and have not had regard to factors that are irrelevant in subsection 11B(4) . The documents include personal information and opinions about individuals including direct phone numbers and email addresses and, with the exception of the CEO, not readily accessible through public sources and not well known. The communication is confidential in nature being advice from various offices including the Director of Human Resources to the Chief Executive Officer in the context of a possible public sector misconduct investigation these deliberative documents contain personal information of individuals and email discussions pertaining to individuals and their conduct. The documents include email communication about possible workplace actions which need to be put in place pending any investigation. The divulgence of such communications could impact not only on the person the subject of the investigation but other officers who had provided this information on a confidential basis pending any investigation and the outcome of same. Disclosure would interfere not only with the privacy of the individuals concerned but with the efficacy of any future investigatory work. As a result disclosure would be an unreasonable disclosure of personal information and, as a consequence, each is conditionally exempt under section 47F of the Act
The document referred to in (IC) is a public document and sets out the procedures established by the agency for a Code of Conduct investigation and is attached
The PS Act provides in subsection 15(7) that: -
(7)An Agency Head must ensure that the procedures established under subsection(3) are made publicly available.
In accordance with this requirement a copy of the procedures established under subsection (3) for Determining whether an APS Employee in the Family Court or Federal Circuit Court have Breached the APS Code of Conduct, is available to the public from the Courts website at:
4. / 06.05.16 / Email from Executive Assistant to CEO Richard Foster to Director of Human Resources re: Code of Conduct, attaching a (4A) signed Instrument of Appointment and (4B) copy of letter from Chief Executive Officer to Mr CowledI have declined the request in respect of these documents as falling within the personal information conditional exemption of the Act. In particular section 47F and 11A(5) to the extent that disclosure would involve the unreasonable disclosure of personal information about individuals.
I find that the email contains personal contact details of individuals, being the Executive Assistant to the CEO and the Director of Human Resources. Specifically, direct phone numbers and email addresses, not accessible through public sources. I do not consider that the disclosure of this information would shed light on the workings of the Government or enhance accountability or transparency. In respect of the enclosed signed letter it is correspondence of a confidential nature to an employee.
Disclosure of the documents (identified in 4A and 4B) would interfere with the privacy and the efficiency of the agency and the individuals concerns. I acknowledge that there is a public interest in the documents being made available to the public for the purpose of encouraging public debate and a better understanding of the investigatory processes of the agency. By contrast the interference with the privacy of individuals including the employee the subject of the investigation would be an unreasonable disclosure of personal information and, as a consequence, each is conditionally exempt under section 47F of the Act.
5. / 10.05.16 / Email from Senior HR Advisor to CEO Richard Foster, the Director of Human Resources, and Others re: Court record and (5A) copy of court recordThe request in respect of the email is declined as falling within the personal information exemption of the Act. In particular section 47F and 11A5 which conditionally exempts a document to the extent that its disclosure would involve the unreasonable disclosure of personal information about any person.
The email contains personal contact details of the Senior HR Adviser, the CEO, the Director of Human Resources and other individuals, specifically, direct phone numbers and email addresses, which are, (except in respect of the CEO), not accessible through public sources and I do not consider that the disclosure of this information would shed light on the workings of the Government or enhance accountability or transparency.
The email also encloses a copy of a court record.
Section 5(1) of the FOI Act provides:
(1) For the purposes of this Act:
(a) a court (other than a court of Norfolk Island) shall be deemed to be a prescribed authority;
(b) the holder of a judicial office (other than a judicial office in a court of Norfolk Island) or other office pertaining to a court (other than a court of Norfolk Island) in his or her capacity as the holder of that office, being an office established by the legislation establishing the court, shall be deemed not to be a prescribed authority and shall not be included in a Department; and
(c) a registry or other office of a court (other than a court of Norfolk Island), and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court;
but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.
The operation of s 5 of the Act, and in particular the meaning of the expression 'matters of an administrative nature' was considered by the High Court in Kline v Official Secretary to the Governor General (2013) 249 CLR 645. The FOI Act only applies to documents which relate to the management and administration of registry and office resources. The FOI Act does not apply to documents which relate to individual cases in a court. Accordingly the FOI Act does not apply to the document.
6. / 06.06.16 / Email re: Code of Conduct Investigation from Senior HR Advisor to CEO Richard Foster attaching a (6A) covering memorandum (6B) report, findings and recommendation on sanctions, a (6C) suggested letter to Mr Cowled and a (6D) copy of court record7. / 07.06.16 / Email re: Code of Conduct Investigation from Executive Assistant to Richard Foster to Senior HR Advisor attaching a (7A) signed copy of the letter sent by CEO Richard Foster to Mr Cowled
8. / 14.06.16 / Email from Senior HR Advisor to CEO Richard Foster and copied to others attaching a (8A) suggested draft letter to send Mr Cowled
9. / 15.06.16 / Email from Executive Assistant to CEO Richard Foster enclosing a (9A) copy of a letter dated 15 June 2016 to Mr Cowled from CEO Richard Foster
The request in respect of the emails is declined as falling within the personal information exemption of the Act. In particular section 47F and 11A5 which conditionally exempts a document to the extent that its disclosure would involve the unreasonable disclosure of personal information about any person.
The email contains personal contact details of the Senior HR Adviser, the Executive Assistant to the CEO,including direct phone numbers and email addresses, andexcept in respect of the CEO these details are not accessible through public sources and I do not consider that the disclosure of this information would shed light on the workings of the Government or enhance accountability or transparency.
The PS Act 1988 gives an agency head the capacity to disclose Code of Conduct information but only in limited circumstances. The documents attached to these emails include personal information about an APS employee the subject of an investigation, witness statements, recommendations and findings by an investigator. The request in respect of these documents is declined as the documents fall within the personal information exemption of the Act. In particular section 47F and 11A5 which conditionally exempts a document to the extent that its disclosure would involve the unreasonable disclosure of personal information about any person. It might be acknowledge that there is a public interest in the documents being made available to the public for the purpose of encouraging public debate and a better understanding of the investigatory processes of the agency. By contrast disclosure would impact on the privacy of individuals including the employee the subject of the investigation and those interviewed. It could also impact adversely on the operations of the agency and the public sector investigatory processes more generally.
The documentation in respect of such investigations is marked and treated on a 'Staff-in Confidence' basis and release could amount to an unauthorised disclosure under the PS Act and accompanying regulations. As a result, disclosure of any of these documents would be an unreasonable disclosure of personal information and, as a consequence, each is conditionally exempt under section 47F of the Act.
In addition, the request in respect of attached documents is declined as also falling within the conditional exemption contained in section 47E(c). In considering the public interest requirement test it is acknowledged that there is a public interest in transparency concerning investigations into the work-related conduct of public sector employees. In this particular instance the circumstances surrounding the alleged misconduct where the subject of media reports and is therefore a matter of some public knowledge. Public disclosure would shed light on the investigative processes and how it dealt with the alleged misconduct in this particular circumstance. However the countervailing public interest in safeguarding the privacy of government employees and those witnesses involved must also be considered. I find that each of the documents contains personal information obtained in confidence and divulgence would interfere with the privacy and the efficiency of the agency by impeding the investigatory process. This is so not only in respect of witnesses and their willingness to come forward and report complaints and give statements candidly and openly but it would also impact on those assigned to undertake the investigatory role. It would make the task of investigation a very difficult one as witnesses may be reluctant to participate in future investigations if personal information could be divulged. I appreciate that this exemption requires that the impact is one that fall within the ‘substantial adverse effect’ requirementof para (c).