Deputy Premier and Minister for State Development, Infrastructure and Planning and The Premier; Mulherin, MP (Third Party) [2014] QICmr 41 (23 October 2014)

REASONS FOR DECISION

Summary

1. The third party applied to the respondent under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents concerning staffing arrangements in Ministerial offices.  

2. The respondent located various documents, mainly comprising correspondence between Ministers and the respondent’s office concerning the appointment and remuneration of staff members.  The respondent sought the views of relevant Ministers, including the applicant, as to possible disclosure of these documents.  

3. The applicant objects to the disclosure of several items of correspondence between the applicant and the respondent concerning staff appointments, on the basis that the correspondence comprised exempt information to which access may be refused, and/or information the disclosure of which would, on balance, be contrary to the public interest.  

4 The applicant has not discharged the onus, imposed by section 87(2) of the RTI Act, of establishing that a decision not to disclose the correspondence is justified.  The respondent’s decision is affirmed.  The third party is therefore entitled to access relevant information, in accordance with the right of access prescribed in section 23 of the RTI Act.  

Background  

5. Relevant steps taken in this matter are set out in the Appendix to this decision.  

Reviewable decision

6. The decision under review is the respondent’s internal review decision dated 24 March 2014 to disclose information, made by an officer of the Department of Premier and Cabinet under the authority of the respondent.  

Evidence considered

7. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix).

Information in issue

8. The ‘Information in Issue’ comprises three single-page pieces of correspondence containing staff member names and salary information.¹  

Relevant law

Onus

9. As the decision under review is a disclosure decision,² the applicant bears the onus of establishing that a decision not to disclose the Information in Issue is justified or that the Information Commissioner should give a decision adverse to the third party (as the access applicant).³  

Right to access information

10. The RTI Act confers on persons a right to be given access to documents of a Minister.⁴  This right is subject to other provisions of the RTI Act, including grounds on which access may be refused.  Access may be refused to exempt information.⁵ Access may also be refused to information the disclosure of which would, on balance, be contrary to the public interest.⁶  

Applicant’s objections

11. In the applicant’s application for external review, the applicant argued disclosure of the Information in Issue would, on balance, be contrary to the public interest, as disclosure could reasonably be expected to prejudice the protection of named staff members’ right to privacy.  This argument was repeated in submissions dated 3 June 2014:  

…individuals negotiated their classification and levels and signed a contract with their employer on the basis that this information is confidential…releasing this information after such an undertaking has been made would be a breach of an individual’s right to privacy given their understanding at the time of their appointment that this information was to remain confidential.   

It should be noted that the tenure of Ministerial staff…is not the same as that of a public servant.  That is, the period of time that an individual is employed in a Ministerial Office is limited by the term of the Government and there is a real expectation that the disclosure of… [the Information in Issue] could harm the negotiating power for individuals to secure employment of equal or greater value in the future and thus potentially creating a public interest harm for each individual in this manner.

12. The applicant did not explicitly argue that the Information in Issue comprises exempt information.  In submissions dated 29 July 2014,⁷ however, the applicant contended as follows:

…the release of staff members’ names constitutes a potential security risk to those staff members.  Recent legislative changes and the introduction of the VLAD legislation have potentially increased the risk of harm to ministerial staff. Releasing the names of staff members therefore may place them in an unacceptable harmful situation.

13. I have taken these latter submissions to comprise an argument that that the Information in Issue comprises exempt information to which access may be refused, as information the disclosure of which could reasonably be expected to:

• endanger a person’s life or physical safety;⁸ and/or
• result in a person being subjected to a serious act of harassment or intimidation.⁹

Issues to be determined

14. The issues to be determined are whether:

• the Information in Issue comprises exempt information, to which access may be refused; or, alternatively,
• the Information in Issue comprises information the disclosure of which would, on balance, be contrary to the public interest.

15. I will address these issues in turn.

Does the Information in Issue comprise exempt information?

16. No, for the following reasons.

17. Access may be refused to information subject to the RTI Act to the extent it comprises exempt information.¹⁰  Exempt information includes information, the disclosure of which could reasonably be expected to¹¹  endanger a person’s life or physical safety.¹²

Endanger life or physical safety

18. The question of whether disclosure of information could reasonably be expected to endanger a person's life or physical safety is to be objectively judged, in light of all relevant evidence.  Relevant evidence will include any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment.¹³

19. Essentially, for the Information in Issue to be exempt under this provision, a source of danger to individuals must be in contemplation, and there must be evidence of a risk that disclosure of the Information in Issue would endanger the life or physical safety of individuals.¹⁴

20. There is nothing before me to support the application of schedule 3, section 10(1)(c) to the Information in Issue.  It is difficult to see, on an objective analysis, that the release of what is relatively routine staffing information could give rise to a reasonable expectation that any person would harm named staff or anyone else.  There is nothing in the information before me identifying any source of potential harm, and no evidence has been put before me to support a claim that disclosure of this information could reasonably be expected to result in a risk to the life or safety of any person.

21. My view in this regard is reinforced by the fact that names of the applicant’s staff as contained in the Information in Issue already appear in the public domain, in contexts clearly identifying relevant individuals as existing or former Ministerial staff members.¹⁵  There would thus already appear to be sufficient information available to any person seeking to target staff members as a consequence of ‘legislative changes’ or ‘VLAD legislation’.¹⁶  Despite the public availability of this information, there is nothing before me to suggest any person has taken action endangering another’s life or physical safety.  In the circumstances, it is difficult to conceive how disclosure under the RTI Act of information already generally available¹⁷ could reasonably be expected to endanger any person’s life of physical safety.

22. I think it also relevant to note that a large amount of equivalent information concerning the staff members of other Ministerial offices (including staff members of the respondent, and other Ministers with responsibility for high-profile legislative initiatives) has already been released to the third party pursuant to his RTI access application.  No evidence has been presented indicating those other staff or any other persons have been endangered as a consequence of this disclosure.  This tends in my view to counter any suggestion disclosure of the substantially similar information in issue could reasonably be expected to lead to such adverse consequences in this case.

23. There is insufficient information before me to support a finding that the Information in Issue comprises exempt information under schedule 3, section 10(1)(c) of the RTI Act.

Result in serious act of harassment/intimidation

24. Information will also be exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. As with schedule 3, section 10(1)(c) of the RTI Act, this provision requires a decision maker to consider objectively all relevant evidence, including information from and/or about the claimed source of harassment or intimidation.¹⁸

25. Factors that may be relevant in assessing whether a serious act of harassment or intimidation could reasonably be expected to occur may include:

• past conduct or a pattern of previous conduct
• the nature of the relevant matter in issue
• the nature of the relationship between the parties and/or third parties
• relevant contextual and/or cultural factors.¹⁹

26. There is insufficient evidence before me to justify a reasonably based view that disclosure of the Information in Issue²⁰ could result in a person being subjected to a serious act of harassment or intimidation.

27. In making this finding, I note the applicant’s concerns as to increased risks to staff arising from unspecified legislative initiatives and the VLAD legislation.  There is, however, no evidence before me as to the source, nature or degree of this risk, and, importantly, nothing to suggest that disclosure of information concerning routine staffing matters is likely to lead the escalation of such risk or to otherwise result in serious harassment or intimidation.²¹

28. In the circumstances, I cannot see that disclosure of the Information in Issue could reasonably be expected to result in a pattern of conduct, which could be characterised as a serious act of harassment and/or intimidation.

29. In the absence of any evidence to the contrary, I am therefore unable to conclude that release of comparatively innocuous employment information could reasonably be expected to result in any person being subjected to serious ‘repeated attacks’ or ‘torment,’ or being ‘made timid’, ‘inspired with fear’ or ‘overawed’.²² Accordingly, the requirements for exemption under schedule 3, section 10(1)(d) of the RTI Act have not been established.

Would disclosure of the Information in Issue be, on balance, contrary to the public interest?

30. No, for the reasons that follow.

31. The RTI Act requires a decision-maker to take the following steps in deciding the public interest: 

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure of the Information in Issue
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the Information in Issue would, on balance, be contrary to the public interest.

32. Following those steps, I have not taken irrelevant factors into account.  

Factors favouring disclosure

33. As to factors favouring disclosure, each of the individuals named in the Information in Issue is (or was) an employee of the State,²³ remunerated with public monies.  In the circumstances, I consider disclosure could reasonably be expected to enhance:

• the transparency of Ministerial staff member appointments and the appointment process; and
• the accountability of government for such appointments, and monies spent on remuneration.  

34. As I have elaborated further below, these are important public interests, each of which deserves substantial weight in balancing the public interest.  

Factors favouring nondisclosure  

35. The Information in Issue discloses both that named individuals work (or have worked) as Ministerial staff members, and the salary range paid to each. I accept that this information comprises the personal information²⁴ of relevant individuals. The RTI Act presumes the existence of a public interest harm where disclosure of information would disclose personal information,²⁵ and recognises a public interest in avoiding prejudice to protection of an individual’s right to privacy,²⁶ factors each which arise for consideration in this case.

36. In assessing the weight to be given to these factors, it is pertinent to recall that various staff names already appear in the public domain, in circumstances connecting individuals with their Ministerial employment.²⁷  This significantly diminishes, if not eliminates, the privacy interest attaching to this information.²⁸  To the extent the public interest factors favouring nondisclosure could be said to continue to apply to these names, I consider they warrant negligible weight.  (For the sake of completeness, I note that even if there was no evidence of prior publication of relevant names, I am nevertheless satisfied that the balance of the public interest in this case favours their disclosure, for the reasons explained below.)

37. As for salary information, relevant information only discloses the range of individual remuneration, and not a precise salary figure, thus diminishing the privacy sensitivity attaching to this information.  I have therefore afforded relevant nondisclosure considerations moderate weight as they apply to this information.

38. The applicant did not expressly raise any other factors favouring nondisclosure, although parts of the submissions extracted in paragraph 11 above could arguably be construed as a contention disclosure of the Information in Issue could reasonably be expected to adversely affect an individual’s financial affairs,²⁹ and/or affect confidential communications.³⁰  The applicant, however, did not seek to develop nor press any such submission in this review, nor tender any evidence in support of assertions made in this regard. 

39. In the absence of any such material – and bearing in mind the legal onus borne by the applicant to justify a decision to refuse access³¹ – I am unable to see how release of information of the kind in issue could reasonably be expected to result in the prejudice necessary to enliven relevant harm factors; factors which, in any event, I consider would be outweighed by the transparency and accountability public interest considerations identified above and discussed further below.  

Balancing the public interest

40. I am satisfied that the balance of the public interest in this case favours release of the identities of individuals whose salaries are ultimately being met by the public, and of information revealing the range within which those salaries fall.  As OIC has previously noted:³²  

Governments fund their operations by imposts on the public of one kind or another.  In a representative democracy, elected representatives are accountable to the electors for decisions made in respect of raising and spending public funds.  The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest.  This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding …

41. The above observations are directly applicable to the salary range information appearing on all three pages.³³ Additionally, while the comments excerpted above were directed toward information revealing gross salary levels,³⁴ it is my view that they are equally applicable to information revealing the identities of individuals in receipt of those salaries.  Disclosure of this information will advance the public interest in ensuring taxpayer monies are ‘expended efficiently and effectively’.³⁵

42. In making these comments, I acknowledge that Ministerial staff members are appointed on contract, rather than under the tenure enjoyed by permanent public servants.  I am not, however, persuaded that this is a matter of particular significance in determining where the balance of the public interest lies.

43. This is because it remains the fact that Ministerial staff members are State employees³⁶ remunerated by way of public monies, engaged to provide ‘advice and assistance to Ministers in the performance of their functions’³⁷ – functions that are carried out on behalf of the public.  As I have noted above, that public is, in turn, entitled to know who is assisting with functions performed on its behalf – to know who is occupying roles with ‘closeness to the most significant decisions of government’³⁸ – and an indication of how much they are receiving to do so.   

44. The status of Queensland Ministerial Office staff members would appear to be substantially analogous to that of ‘special advisers’ in the United Kingdom, whose names and salary information are published to the UK’s ‘Open Data’ portal.³⁹  As the current UK Cabinet Office Minister⁴⁰ noted on introducing this publication regime:  

[s]pecial advisers⁴¹ have an important role in public life and it’s right that they should be open to the fullest scrutiny…We are drawing back the curtains to let light into the innermost corridors of power.⁴²

45. Given the parallels between special advisers and Queensland Ministerial staff members, these observations can be fairly applied to the similar information in issue in this review.  There is a substantial public interest in ensuring community access to information sufficient to enable it to scrutinise public recruitment and expenditure decisions; a public interest that is in my view of a weight sufficient to displace any considerations favouring nondisclosure.  

Conclusion

46. A degree of public scrutiny – including disclosure of the fact of appointment, and level of remuneration – is something that must reasonably be expected to ‘come with the territory’ of State employment, and those serving in government roles should anticipate they will cede a degree of personal privacy in exchange for receipt of public monies.  In this case, I consider disclosure of the Information in Issue will:

•  enhance the accountability of Government for its expenditure and recruitment decisions; and
•  foster public confidence in the making of these decisions.

47. These are significant public interest outcomes, and should be preferred to the factors favouring nondisclosure identified above.

48. For these reasons, it is my view that disclosure of the Information in Issue would not, on balance, be contrary to the public interest.

DECISION

49. I affirm the decision under review.  The applicant has not established that the Information in Issue is either exempt information to which access may be refused, or information disclosure of which would, on balance, be contrary to the public interest.

50. The third party is therefore entitled to access the Information in Issue, in accordance with the right of access conferred by section 23 of the RTI Act.

51. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.    

________________________
JS Mead
Right to Information Commissioner  

Date: 23 October 2014    

 

APPENDIX  

Significant procedural steps

Date	Event
21 November 2013	The respondent received the third party’s access application under the RTI Act.
19 December 2013 and 21 January 2014	The respondent sought the views of the applicant as to possible disclosure of the Information in Issue.
4 February 2014	The applicant objected to disclosure of the Information in Issue.
7 February 2014	The respondent decided to disclose the Information in Issue.
24 February 2014	The applicant applied to the respondent for internal review of the decision dated 7 February 2014.
24 March 2014	The respondent issued an internal review decision to disclose the Information in Issue.
8 April 2014	OIC received the applicant’s application for external review.
1 May 2014	OIC notified the respondent and the applicant that the application for external review had been accepted.
22 May 2014	OIC wrote to the applicant exploring possible partial disclosure of the Information in Issue.
3 June 2014	The applicant replied to OIC, generally affirming its objections to disclosure.
11 June 2014	OIC contacted the third party and advised it of the external review.  The third party withdrew its access application as it related to one page, but otherwise confirmed its desire to press for access to the Information in Issue.
26 June 2014	OIC wrote to the applicant clarifying the Information in Issue and conveying a preliminary view that there were no grounds for refusing access to that information.  OIC also wrote to the third party, confirming OIC’s external review and the Information in Issue, and inviting the third party’s participation in the review. The third party applied to participate in the external review.
28 July 2014	The applicant wrote to OIC, advising that it accepted OIC’s preliminary view, but maintaining a ‘formal objection’ to disclosure.
30 July 2014	OIC contacted the applicant to clarify its position.  The applicant wrote to OIC, confirming its continuing objection to disclosure of the Information in Issue and setting out submissions in support of its case.
1 August 2014	OIC wrote to the applicant, conveying a further preliminary view that there were no grounds for refusing access to the Information in Issue.
19 August 2014	The applicant confirmed its objections to disclosure of the Information in Issue.
21 August 2014	OIC wrote to the applicant, confirming the applicant’s position and advising a decision would issue in due course.
22 August 2014	OIC wrote to the respondent, advising of the status of the review.
28 August 2014	OIC wrote to the third party, confirming its status as a participant in the review.
12 September 2014	OIC wrote to the third party, advising of the status of the review.

 

[1] Excluding limited segments of information comprising mobile telephone numbers, salary ‘paypoints’ and a signature, which the third party excluded from the scope of his access application. During the course of this review, the third party also withdrew his access application as it related to a fourth page of correspondence originally in issue. 
[2] That is, a decision to disclose a document or information contrary to the applicant’s views: section 87(3) of the RTI Act.
[3] Section 87(2) of the RTI Act.
[4] Section 23(1)(b) of the RTI Act.  The documents must, relevantly, ‘relate to the affairs of an agency’: section 13 of the RTI Act.  This phrase is to be understood broadly, as encompassing any matter that falls within the portfolio responsibility of a minister: Fletcher and Prime Minister of Australia [2013] AICmr 11 (22 February 2013) (Fletcher), paragraph [20], addressing materially equivalent wording contained in the Commonwealth Freedom of Information Act 1982.  As Ministerial staff members are employed to ‘provide support to’ Ministers ‘in fulfilling portfolio responsibilities’ (Queensland Ministerial Handbook, section 1.1), I am satisfied that documents relating to their employment comes within the ambit of this provision, as explained in Fletcher.  Additionally, under the Ministerial and Other Office Holder Staff Act 2010 (Qld), Ministerial staff members are employed by the Director-General of the Department of Premier and Cabinet, an agency within the meaning of the RTI Act.
[5] Sections 47(3)(a) and 48 of the RTI Act.
[6] Sections 47(3)(b) and 49 of the RTI Act.
[7] Forwarded to the Office of the Information Commissioner (OIC) by email dated 30 July 2014.
[8] Schedule 3, section 10(1)(c) of the RTI Act. 
[9] Schedule 3, section 10(1)(d) of the RTI Act.
[10] See note 5.
[11] The words ‘could reasonably be expected to’ are to be given their ordinary meaning and ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous’ to expect the consequences prescribed by a particular provision to flow from disclosure: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190.
[12] See note 8.
[13] See Murphy and Treasury Department (1995) 2 QAR 744, at [47].
[14] As above.
[15] Section 108(3) of the RTI Act constrains me from revealing information claimed to be exempt or contrary to the public interest information; for the purposes of these reasons, it is sufficient to note that names have been published in various places, such as government publications, government communications, and professional networking profiles.
[16] The latter which I understand to be a reference to the Vicious Lawless Association Disestablishment Act 2013 (Qld).
[17] It neither being suggested nor apparent that disclosure of salary band information could endanger any person.
[18] Sheridan and South Burnett Regional Council and Others (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan), at [201]. These comments concerned section 42(1)(ca) of the former Freedom of Information Act 1992 (Qld) but are equally applicable to schedule 3, section 10(1)(d) of the RTI Act, which is worded in substantially similar terms. 
[19] Sheridan, at [193].
[20] Recalling that staff names already appear in the public domain: see paragraph 21 and note 15.
[21] Noting again the release to the third party of large amounts of similar information concerning staff of other Ministerial offices (as referred to in paragraph 22), disclosure of which has not, as far as I am aware, resulted in any person’s harassment or intimidation. 
[22] Paraphrasing the dictionary definitions of ‘harass' (which includes 'to trouble by repeated attacks,…to disturb persistently; torment’) and 'intimidate' (which includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear’):  Macquarie Dictionary Online www.macquariedictionary.com.au, cited and applied in Sheridan at [194]-[197]. 
[23] Ministerial and Other Office Holder Staff Act 2010 (Qld), section 11(c).
[24] Personal information is information 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: Section 12 of the Information Privacy Act 2009 (Qld) and section 10, schedule 6 of the RTI Act.
[25] Schedule 4, part 4, section 6 of the RTI Act.
[26] Schedule 4, part 3, item 3 of the RTI Act.
[27] See paragraph 21 and note 15.
[28] And in this regard, I note that in its submissions dated 3 June 2014, the applicant did indicate a preparedness to concede to the disclosure of two of the several names in issue (these specific names appear in multiple official publications, identifying those named as Ministerial staff members).  In view of the applicant’s later correspondence reasserting objections to disclosure (eg, submissions dated 29 July 2014), I have, however, treated these names as information in issue.
[29] Schedule 4, part 4, section 7(1)(c) of the RTI Act.
[30] Schedule 4, part 4, section 8 of the RTI Act, briefly considered and dismissed in the decision under review.  Schedule 3, section 8 of the RTI Act also provides that information will be exempt (and susceptible to refusal of access) where its disclosure would found an action for breach of confidence; the applicant did not, however, seek to argue a case for exemption under this provision, nor tender any evidence in support of the section’s application.  Accordingly I have not considered it, although – and without determining the point – I note that this would appear to be a case in which any mutual understanding of confidence that might be argued to exist between state and employee may be limited, because of the public accountability factors attaching to the expenditure of public funds, and to the terms and conditions of employment of persons employed to serve the public: Henderson and Queensland Law Society (Unreported, Queensland Information Commissioner, 8 June 2001), at [56].
[31] See paragraph 9.
[32] Williams and Burdekin Shire Council; Lower Burdekin Newspaper Company Pty Ltd (Third Party) (2004) 6 QAR 328 at [27] (Williams), the Deputy Information Commissioner following the approach adopted in several similar Victorian and Western Australian decisions (as explained at paragraphs [29]-[31]).  These authorities include Re Asher and Department of State and Regional Development [2002] VCAT 609 (6 August 2002), in which Deputy President McNamara observed that ‘the fact that the taxpayers ultimately meet the remuneration [of senior public officers] gives them a legitimate interest in this matter, even though it is one that is clearly a matter relative to the personal affairs of the officers themselves.’  (Extracted at paragraph 29 of Williams.)
[33] Particularly that concerning named senior officers, the Deputy Information Commissioner going on in the same paragraph to note that the ‘public interest [in disclosure] is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes.’ 
[34] That is, information of greater detail than the salary information in issue here, which as noted only discloses the band or range within which individuals are being paid, the third party having, as noted earlier, excluded specific ‘paypoints’ from the scope of his access application (see note 1).
[35] Williams, as cited in paragraph 40.
[36] See note 23.
[37] ‘Code of Conduct – Ministerial Staff Members’, 31 October 2012, page 2.  Available at http://www.premiers.qld.gov.au/right-to-info/published-info/assets/code-of-conduct-ministerial-staff.pdf. (Accessed 16 June 2014).
[38] As above.
[39] See www.data.gov.uk.  For an example of a report of Special Adviser names and salaries, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/253081/SPAD_list_Live_UPDATE.pdf  (Accessed 17 June 2014.)
[40] Rt Hon Frances Maude MP.
[41] Special advisers are similarly appointed on a temporary basis to assist Ministers with matters such as media relations and policy advice.  The Cabinet Office notes that special advisers are ‘employed to help ministers on matters where the work of government and the work of the political party in power overlap, and where it would be inappropriate for permanent civil servants to become involved.’ ‘Transparency agenda reaches heart of government’, 10 June 2010:  https://www.gov.uk/government/news/transparency-agenda-reaches-heart-of-government, note 1. (Accessed 16 June 2014.)
[42] As above.