Complaining to the FOI Commissioner about the Government’s Delay of Reviewing Its FOI Decision
Dear Prof McMillan,
I complain that the Department of the Prime Minister and Cabinet’s delay of dealing with my application made on 9 March 2012 almost three months ago. I lodged the application for reviewing the decision made by Mr Russell Egan, Assistant Secretary of Government Division of the Department of the Prime Minister and Cabinet on 16 February 2012. The decision's reference number is FOI/2012/006.
The timeframe for the review is 30 days according the government’s guideline and the FOI Act. On 12 April 2012, on (02) 6271 5849, Jasminder of the department acknowledged that the department failed to follow the FOI Act, but the only thing she could do was to inform the decision maker that I made the call. On 18 May I informed her that I would complain to you if no decision was made in two weeks. She replied that she would pass my message to the decision maker.
Please find the enclosed application for the review of the department's decision and the original decision made on 22 February 2012. I believe the department’s performance is unacceptable. Please help the officers do their job properly.
Enclosure:
My application for reviewing Mr Egan’s decision
Application for Internal Review of FOI Decision of Refusing to Release Any Substantial Information
Dear FOI Co-ordinator,
Your Ref: FOI/2012/006
I am writing to apply for an internal review of the decision made by Mr Russell Egan, Assistant Secretary of Government Division of the Department of the Prime Minister and Cabinet on 16 February 2012. Mr Egan refused to grant access to the conditionally exempt documents within the meaning of 47C of the Freedom of Information Act 1982 (the FOI Act).
A. Documents 1, 2, and 3
The undisclosed parts in documents 1, 2 and 3 are actually the same parts because document 3 is a part of document 2 and document 2 is a part of document 1. According to the contexts of the document, the deleted parts are:
a. Ms Brendan MacDowell’s proposed reasons and actions regarding my request of remitting application fee based on the public interest ground,
b. Ms MacDowell’s discussions with Mr Mathew Jose
c. Mr Jose’s final decision
d. Ms MacDowell’s final affirmation to accept Mr Jose’s decision even though she might not completely agree with Mr Jose’s opinion and decision.
(a) ‘purely factual material’
In Mr Jose’s email of 15 July 2009 to Ms MacDowell, he wrote: ‘I agree to the transfer of this request to the department, as proposed’; however such proposal in Ms MacDowell’s email is not disclosed. Her proposal is a ‘purely factual material’ under section 47C(2)(b) of the FOI Act, so the proposal should be released accordingly. Furthermore, as Mr Jose did not address the matter about the application fee, Ms MacDowell naturally raised the matter again to Mr Jose in her email of 17 July 2009. This is a ‘purely factual matter’; therefore, it should be released as well under section 47C(2)(b) of the FOI Act.
(b) ‘final decision’
Under section 47C (3)(c) of the FOI Act, the ‘final decision given in the exercise of a power or of an adjudicative function’ must be disclosed. In the released parts, there is no final decision. According to the context Mr Jose gave his decision regarding the remission of application fee in his email of 17 July 2009 to Ms MacDowell; as a result, the final decision in both Mr Jose’s email of 17 July 2009 to Ms MacDowell and her affirmative email on the same day must be disclosed under section 47(3)(c) of the FOI Act and section 6.68 of the Guidelines issued by the Information Commissioner under section 93A (the FOI Guideline).
(c) ‘opinion’ and ‘advise’
Under section 47C of the FOI Act, accessing to opinion and advice ‘must generally be given’. Mr Egan did not release any deliberative matter in the nature of opinion and advice; that is contrary to section 47C of the FOI Act. Apparently, he believes that disclosing any opinion and advice has the potential to compromise relevant officers’ confidence to provide frank and candid opinion and advice. According to his logic, the FOI Act has the potential to compromise relevant officers’ confidence to provide frank and candid opinion and advice. On the face of it, he believed that relevant officers do not have confidence in themselves in their ability to provide proper, reasonable and legitimate opinions and advices. Section 11B(4) of the FOI Act particularly deals with such worry and defines such worry as irrelevant facts.
Mr Egan’s reasons are formulated for any documents, circumstances and time. He did not provide any reason why the circumstance is a ‘particular circumstance’ required by sections 6.14, 6.20 and 6.21 of the FOI Guidelines. Under section 26 of the FOI Act Mr Egan should give some substantial and particular factors to clarify why the circumstance is an unusual circumstance.
(d) A matter of public importance
Mr Egan did not consider the factor favouring access to the document in the public interest given in section 11B(3)(b) of the FOI Act. This FOI inquiry is relevant to all workers’ legal rights, and thousands people have petitioned to the Parliament about the matter, to which this FOI inquiry is relevant; therefore the opinion and advice given by officers or advisers about the matter will inform the debate on the matter of a public importance.
B. Documents 4
There is not any final decision in document 4; implicitly, the deleted part of the document must contain the decision. As outlined at A(b) above, the final decision should be disclosed under section 47C (3)(c) of the FOI Act. Nevertheless, as outlined at A(c) and A(d) above, the reason or advice for the final decision should be released as well due to the public importance of the matter and for promoting the objects of the FOI Act.
Summary
Mr Egan’s reasons did not contain any ‘substantial adverse effect’ to ‘the particular document, particular circumstance and particular time’, which are required by sections 6.14, 6.20 and 6.21 of the FOI guidelines. His reasons are formulated and can be applied to any documents, circumstances and time. He did not release any information about the contents of the final decision, the final decision-makers, and the reasons and advice considered in the final decision-making processes being contrary to above-mentioned sections of the FOI Act.
Enclosure:
Assistant Secretary Mr Russell Egan’s Decision on Refusing to Release Substantial Information
Amended FOI Application of 23 January 2012
Dear Ms Mckivat,
Your Ref: Foi/2012/001
I refer to your letter of 16 January 2012 regarding the charges quoted on my FOI inquiry. Even though all previous FOI charges in relation to the same matter have been waved on public interest or relevant grounds, this time I take a practical approach about the charges. I withdraw this FOI inquiry, rather than request a review on the decision on charge.
I make a new request under the FOI Act to access the four documents below:
1. Email of 17/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, PMO, confirming deletion of one paragraph of a response letter to Mr He, with additional email traffic attached.
2. Email of 15/07/2009 from Mr Jose, SA, PMO to Mr MacDowell, SA, LPB agreeing to transfer Mr He’s request to PM&C, with additional email traffic attached.
3. Email of 15/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, SA, PMO seeking transfer of the request to PM&C, with additional email traffic attached.
4. Email of 10/01/2008 from Mr Gavin Ryan, Office of Senator Gavin Marshall, to Ms Sarah Adams regarding Mr He.
I hope the first 5 hour free of charge can cover the costs of the new FOI inquiry.
Enclosure:
Ms McKivathttp://users.tpg.com.au/hildaz/FOIdecision2scanned-23-01-12.pdf’s decision of 16 January 2012 on the charge of FOI inquiry
FOI Application of 3 January 2012 for Documents Exempted Under Repealed Section of the FOI Act
Dear Mr Anagnostis,
Thanks you for sending the FOI documents requested.
Based on previous communications, my impression was that Mr Anderson had decided to release all documents in the list, and his only concern was application fee and late, the processing fee. Therefore, when you mentioned Mr Anderson’s decision in your email of 3 October 2011, I misunderstood it as Mr Anderson’s previous decision. Now I find many documents on the list are exempted from releasing under section 36 of the Freedom of Information Act 1982 (the FOI Act). My understanding is that s. 36 of the FOI Act has been repealed.
In her decision of 17 February 2011 on waiving the processing charges, Ms Lynch took practical approach by considering the changes of the FOI Act regarding the requests made after 1 November 2010. Mr Anderson might have not read Ms Lynch’s decision of 17 February 2011 on reviewing his decision of 10 December 2010 as he has not adapted Ms Lynch’s method in relation to making the decision on FOI requests made before 1 November 2010.
Even though I have the right to apply for reviewing Mr Anderson’s decision of 30 September 2011, I take practical approach and make a new request under the FOI Act to access all the documents which were exempted.
A. the documents exempted by Mr Anderson under the repealed s. 36 of the FOI Act.
1. Email of 17/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, PMO, confirming deletion of one paragraph of a response letter to Mr He, with additional email traffic attached.
2. Email of 15/07/2009 from Mr Jose, SA, PMO to Mr MacDowell, SA, LPB agreeing to transfer Mr He’s request to PM&C, with additional email traffic attached.
3. Email of 15/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, SA, PMO seeking transfer of the request to PM&C, with additional email traffic attached.
4. Email of 10/01/2008 from Mr Gavin Ryan, Office of Senator Gavin Marshall, to Ms Sarah Adams regarding Mr He.
5. Brief of 22/01/2008 from Mr Peter Cully, AS, Workplace Relation Legal Group, DEEWR, to Ms Sarah Adams, SA, PMO.
B. the documents exempted by Mr Anderson under s. 22 of the FOI Act, which requests the applicant’s agreement, whereas I have not given any agreement
6. Email of 07/10/2008 from Mr Broad, LPB, to Mr Corbett, regarding unfair dismissal correspondence in relation to Mr He, with additional email traffic.
7. Email of 13/10/2008 from Mr Corbett to Mr Broad.
8. Email of 13/10/2008 from Mr Corbett to Mr Broad.
I look forward to hearing from you.
Enclosure:
1. Mr Alex Anderson’s decision of 30 September 2011 on exempted documents
2. The attachment to Mr Anderson’s decision of 30 September 2011
Complaint dated 9 June 2011 to Ombudsman about the FOI delay of Prime Minister Department
Dear Prof McMillan,
I made the FOI inquiry on 8 May 2009 more than two years ago. The reference number of the inquiry is FOI/2009/032.
I complain that the Legal Policy Branch of the Department of the Prime Minister and Cabinet has failed to release the FOI documents after the Department decided to release the documents without charge on 17 February 2011. The relevant officers have no ideas when the documents can be released. Please find the enclosed communications with the officers. I believe the Department’s performance is unacceptable. Please help the officers do their job properly.
Prime Minister’s Department Encourages Me to Complain about its Delay on 31 May 2011
Dear Mr He
I regret the delay in responding to your email. My supervisor, Ms Jill Clark, advised me that you called yesterday seeking an update on your FOI request. Regrettably, no progress has been made since my last email to you. As Ms Clark indicated to you, the decision-maker for the request has been busy working on some legislation and therefore there has not been an opportunity to make progress on your request. Further, there has been a delay in initiating the consultation with the other Australian Government agency because of competing workloads and priorities, but we aim to initiate that as soon as possible.
Ms Clark advised me that you asked for details on how to lodge a complaint. Should you wish to complain, you may do so to the Information Commissioner. More information about making a complaint is available at the web site of the Office of the Australian Information Commissioner: http://www.oaic.gov.au/publications/FOI_fact_sheet13_how_to_make_a_complaint.html.
I shall contact you again when I have more information.
Regards
Angelo Anagnostis
Adviser
Access and Administrative Review Section
Legal Policy Branch
Department of the Prime Minister and Cabinet
Email of 24 February 2011 in Response to the Department’s Inquiry
Dear Ms Clark,
Thanks for your quick response. I would like that ‘[my] comments in relation to the meaning of benefit and public interest’ are assessable by more officers in the Government. I hope ‘the benefit from the release of’ my comments to relevant decision makers ‘would flow to the public at large, or a substantial section of the public’. I really appreciate Ms Lynch’s attitude toward an applicant’s opinion on the Government’s Guidelines.
Could you please kindly advise me when I can get the documents?
Enclosure: The Prime Minister Department’s Inquiry of 23 February 2011
