Officials have in the past gained access, with redactions, to job applications, referee reports and notes made by selection panels. That access reflected initiatives - weakened over the past 15 years - to enhance efficiency by increasing the transparency of APS recruitment/promotion activity and reduce favouritism, the latter being a substantive problem in particular agencies rather than just a misperception by disgruntled candidates.
In the 'BA' dispute a female official in the Human Services Department scored a promotion in 2011. Her male colleague 'Y', along with another unsuccessful applicant for that job, sought a review through the standard Promotion Review Committee and then through the Merit Protection Commissioner, both of which upheld the appointment.
Mr Y then sought FOI access to documents regarding the appointment, progressively narrowing the scope of the request and for example excluding phone numbers. The Merit Protection Commissioner conditionally agreed to release
- a selection summary, which describes the vacant position, the number of applicants, the interview process; the names of the selection panel members, the panel’s recommendation that X be promoted to the vacancy, the recommended salary, the five point rating scale applied by the panel, a summary using that rating scale of how the applicant was rated against five selection criteria by the panel and referees, and a three paragraph description of the panel’s assessment of X (referring to her strengths, why she was assessed more strongly than other applicants, and to shortcomings in her candidature that would be taken up as part of post-selection feedback)
- a comparison of the applicants,
- X's job application, with redaction of her date of birth, home address, phone number and email address, along with redaction of a short paragraph that contained personal information of a third party
- X's resume,
- X's claims against the selection criteria,
- X's referee report and
- nine pages of handwritten comments made by the selection panel.
The Merit Protection Commissioner referred to Administrative Appeals Tribunal cases that held that APS job applications, referee reports, selection committee reports and comparative assessments of a successful job applicant are not exempt under the FOI Act.
In Re Dyki and FCT (1990) 22 ALD 124; 12 AAR 544 the Tribunal for example stated that "it would not be unreasonable" under s 41(1) of that Act to disclose the "application, statement or curriculum vitae" of two successful candidates, subject to redaction of purely personal information. Those candidates had
since been appointed to the advertised positions and their new status has entered the public domain. I am satisfied that it is both in the public interest and reasonable that promotions must not only be just, but be seen to be just. It follows that those applications, having achieved their aim, are opened up to public scrutiny and their authors’ claim to promotion is henceforth in the public domain. It follows that the applicants’ claim to privacy must be deemed to have been abandoned, if only because it is public knowledge that they have applied for the promotions and were successful. Thus, the job applications of the two successful candidates have lost whatever entitlement to anonymity they had (subject to deletion of material adjudged to be purely personal). ... [Also] their curriculum vitae has entered the public domain and their publication can no longer be regarded as immune from disclosure.The Merit Protection Commissioner accordingly envisaged that some information - such as X's name, phone and date of birth - would be redacted. From a privacy perspective the effectiveness of such redaction is problematical given that X worked in the same Department (and was readily identifiable as having been appointed to the contested job) and other information might be readily accessible online.
The Commissioner also decided that Y could view (but not copy) X's submission to the Promotion Review Committee, including "various statements of attainment, team performance awards and course accreditation certificates" (which the Information Commissioner characterises as "nothing especially confidential").
X challenged that decision, expressing fears for her personal safety and concern that Y might misuse documents that she had provided in confidence. She apparently also believed Y had made false accusations about her in the review process. She argued that
- it would be unfair and inconsistent that Y should be granted access to documents relating to her, as she had applied for and was denied access to similar documents relating to Y.
- the documents she submitted to the Promotion Review Committee in support of her application were not made publicly available; they were received by the MPC on an in-confidence basis and featured confidential statements about her capabilities, experience, employment history and achievements
- those documents do not relate to Y
- the Promotion Review Committee process is finalised, and there is no public interest in providing the FOI applicant with access to documents that will not be of any assistance or benefit to him
The Information Commissioner has overturned by the decision by the Merit Protection Commissioner, ruling that Y can access the selection panel's summary of its decision to give X the job – with her identifying details removed – but not the other documents.
The Information Commissioner, in noting changes to the privacy and FOI statutes over the past twenty years, indicates that -
The term ‘personal information’ should bear the same meaning in the Freedom of Information Act 1982 (Cth) and the Privacy Act 1988 (Cth). Accordingly, in applying s 47F of the FOI Act, regard should be had to the privacy protection framework in the Privacy Act.
The term ‘personal information’ can apply to any information that reasonably identifies a public official, including vocational assessment and routine work information. The view adopted in many earlier cases, and relied upon by the agency in this case, that it would not be unreasonable to release vocational assessment information relating to a successful candidate for promotion should be reassessed in light of changes in privacy law, information technology and community concern about privacy protection. Those changes are also relevant to whether it would be contrary to the public interest to release vocational assessment information relating to a successful candidate.
The release of vocational assessment information under the FOI Act is different to providing participants in a competitive personnel selection process with information about other candidates, including the successful candidate. The FOI Act does not require that access principles under both regimes are consistent.
If guidelines are issued by the Australian Public Service Commissioner under regulation 9.2(6) of the Public Service Regulations 1999, concerning the use and disclosure of personal information, agency compliance with the guidelines will be a relevant consideration in deciding (under s 47F of the FOI Act) whether disclosure of personal information relating to a public official would be unreasonable and contrary to the public interest.We will presumably see guidance from the Australian Public Service Commissioner alongside the amendments to the Privacy Act 1988 (Cth) that come into effect next month.
