Submissions IC Review MR23 01428.pdf

Dear FOI Contact Officer
OAIC ref: MR23/01428 | APSC ref: LEX 767
We refer to your notice of Information Commissioner Review (IC Review) and
request for documents received on 19 December 2023.
The requested documents were provided on 10 May 2024 and we now provide our
submissions in this matter. We thank you for your patience.
Scope of IC Review
1.  This IC Review Application concerns an Internal Review (IR) decision made
by Amanda Harmer of the Australian Public Service Commission (the
Commission) on 27 October 2023.
2.  During the IR stage, the Commission affirmed the original decision which
found that no documents exist within scope of the Applicant’s request
pursuant to section 24A(1) of the Freedom of Information Act (1982) (FOI
Act).
3.  The Applicant’s request was submitted through the through the Right to Know
website on 30 August 2023, and sought access to the following documents from
the Commission:
“[A]ny and all documents sent or received by, or prepared for, or prepared by,
or made use of by each of:
a) Gordon de Brouwer,
b) Peter Woolcott,
c) Helen Wilson,
d) Rina Bruinsma,
e) Grant Lovelock,
f) Jo Talbot,
g) Charmaine Sims,
h)  any  occupants,  whether  in  a  substantive  or  acting  capacity,  of  the  role  of
Assistant Commissioner, Integrity, Performance and Employment policy,
in respect of inadequate investigations, or in respect of reports of inadequate
investigations, relating to misconduct in the Australian Public Service, or any
kinds of unlawful conduct by officials in the Australian Public Service (including
agency heads and statutory office holders), from 1 January 2020 to 29 August
2023.”
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4.  We understand the Applicant is seeking IC Review because they disagree
with the Commission’s finding that, despite reasonable steps being taken to
find the requested documents, no documents falling within the scope of the
applicant’s request were found to exist (s 24A(1)).
5.  In their Application for IC review, the Applicant submitted:
The decision is wrong because the statement that there are no documents
that can be found is false.
As I have already stated, I know the documents exist because they have been
published in various places, including on Right to Know (AU).
Commission submissions
6.  The Application for IC Review indicates the Applicant is seeking documents
which are published online. The Applicant has provided the following links in
their Application form and has stated, “There are other documents that are
within the scope of my request that have been published on other websites. I
will provide links when requested.”
https://www.righttoknow.org.au/request/9867/response/31994/attach/14/Quest
ions%20on%20notice%20Estimates.pdf?cookie_passthrough=1
https://www.righttoknow.org.au/request/9867/response/31994/attach/15/18%2
0March%202022%20McKay%20to%20Woolcott.pdf?cookie_passthrough=1
7.  The Commission submits the Application for IC Review is not directed
towards gaining access to documents held by the Commission, as the
Applicant already has access to the documents they claim fall within the terms
of the request through publically available sources. Rather, the Commission is
of the view that the Applicant’s motivation in submitting the request is twofold:
i.
The Applicant is attempting to use the FOI system to resolve their
grievances regarding the Commission’s handling of the Public Interest
Disclosure (PID) investigation, by characterising the Commission’s PID
investigation as ‘inadequate’ and seeking an FOI decision from the
Commission that accords with this characterisation; and
ii.
The Applicant is intending to annoy and harass Commission staff by
initiating a request for documents that the Applicant already has access
to. This in turn creates a psychosocial hazard in relation to workplace
interactions and behaviours, by harassing or intimidating staff and
creating stress and anxiety in the recipients of the Applicant’s emails.
8.  For example, in response to correspondence from the Commission asking the
Applicant to refine the scope of the request on the basis that it was too broad
to process in its current form, the Applicant responded on 6 September 2023
and stated:
“As a Commonwealth integrity agency, the response to my FOI request
should be that there are no documents that fall within the scope of the request
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because Commonwealth integrity agencies should not be conducting
inadequate investigations (i.e. investigations not conducted according to law).
That being said, a set of materials has come to my attention that has
prompted me to make this FOI request.
…
Of course, if you are about to claim that processing a request in respect of
documents in the possession of 7 identified individuals and an office holder
about inadequate investigations (i.e. investigations not conducted according
to law), or in respect of reports of inadequate investigations (i.e. reports of
investigations not conducted according to law), relating to misconduct in the
Australian Public Service, or any kinds of unlawful conduct by officials in the
Australian Public Service (including agency heads and statutory office
holders) would substantially and unreasonably divert the resources of the
entire Australian Public Service Commission from its other operations, then
the Australian Public Service Commission is in deeper trouble than I thought.”
9.  Despite the Commission’s view that the Applicant’s motivation in submitting
the request is not related to obtaining access to documents, the Commission
nevertheless processed the Applicant’s request of 30 August 2023 in good
faith and did not consider the Applicant’s reasons for seeking access to the
documents when making its primary and internal review decisions.
Cohort of Complex and Interrelated Matters
10. As previously advised to your office, this IC review is part of a larger cohort of
complex and interrelated matters, where applicants have used pseudonyms to
make requests to the Commission connected to a recruitment process in the
Federal Court that was the subject of a Public Interest Disclosure Act 2013
investigation by the Commission and subsequent complaint to the
Commonwealth Ombudsman about that PID investigation. Some of these
applicants have personally targeted, and harassed, Commission staff
processing their requests. We understand through discussions with our
colleagues, that similarly worded requests about the same or similar facts
have also been received by the Commonwealth Ombudsman and the Federal
Court of Australia.
11. To date, the Commission has received 121 such requests, many of which
have been made in substantially similar terms and which refer to, and attach,
documents released under separate FOI requests. Fourteen of these requests
are currently before the Information Commissioner for IC review (refer to
updated spreadsheet attached for a breakdown of these applications). We
expect the number of IC reviews to continue to rise as the Commission
continues to process requests from this cohort of applicants.
12. Internal and Information Commissioner reviews from these individuals are
unusual in that they often do not seek access to information that was redacted
or withheld, but rather assert the request was not adequately addressed and
the Commission has either:
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i.
provided access to documents which do not meet the terms of the
request;
ii.
refused access to documents which are publically available or where
the applicant already has possession; or
iii.
provided access to documents where the correct decision should have
been that no documents exist (s 24A(1)).
Engagement with the Applicant
13. On 5 June 2024, the Commission wrote to the Applicant for the purpose of
attempting to resolve or at least narrow the issues in dispute in the IC review.
The Commission asked the Applicant to explain why they disagree with the
APSC’s decision and what action the Commission could take to resolve their
concerns. See copy of engagement email attached.
14. On 6 June 2024, the Applicant responded and provided reasons why they
disagree with the decision under review (attached). In their response, the
Applicant stated:
“I applied for IC review of Amanda Harmer's decision because I was able to
demonstrate that what Amanda communicated in her decision was plainly
false. There are obviously documents within scope of my request. I provided
links to some of those documents in my internal review request, which I invite
you to again refer to. There are also other documents that have been
published by the APSC demonstrating that there are in fact documents in the
possession of the APSC that are within the scope of my request: e.g.

https://archive.org/download/pid-2020-400006-investigation-into-registrar-
appointments-federal-court-of-austr/PID-2020-400006%20-
%20Investigation%20into%20registrar%20appointments%20%28Federal%20
Court%20of%20Australia%20Statutory%20Agency%29.pdf

There are others too.
The problem is that I do not just how many there are. Perhaps there will be
documents that were sent to the APS Commissioner about the preliminary
inquiry referred to in the Senate estimates pocket brief.”
15. The Commission notes that the documents attached by the Applicant to their
internal review request, and linked in their recent engagement response, were
released by the APSC under FOI (see for example LEX 450). It therefore
follows that many of the documents sought by the Applicant appear to have
already been released by the Commission.
Objects of the FOI Act
16. The FOI Guidelines at 1.7 relevantly provide that, in performing functions and
exercising powers under the FOI Act, agencies and ministers must consider
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the objects of the FOI Act, which are contained within section 3 and relevantly
include:
Giving the Australian community access to information held by
government, by requiring agencies to publish that information and by
providing for a right of access to documents [emphasis added];
and
that powers and functions under the FOI Act are to be performed and
exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
17. The Commission submits that the IC review is not directed towards gaining
access to documents, but rather, the applicant is seeking to address their
perception that the recruitment decisions made by the Federal Court and the
subsequent PID investigation undertaken by the Commission, were
‘inadequate’. The Applicant has expressed in their IC review Application that
the requested documents (which they claim support this proposition) “have
been published in various places” and they can “provide links when
requested”. The Commission therefore submits that the Information
Commissioner will not be able to make a decision that will be of any practical
benefit to the Applicant, and therefore, to use the words of Blow DP in Re
Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33] “it would
be a waste of everyone's time and money for [the application] to be allowed to
remain on foot.”
18. There has been a lot of discussion recently about the delays across the FOI
system (including in the finalisation of IC reviews) and the improvements
needed to bring about greater efficiencies across the FOI regime.1 In the
Commission’s view, it is as important as ever that matters are prioritised
where there is a genuine desire on the part of Applicants to gain access to
documents. In circumstances where a request is not capable of conferring a
practical benefit on the Applicant, such as where the Applicant already has
access to the documents, continuing to review the matter will not, in the
Commission’s view, promote the objects of the FOI Act.
19. In light of the above reasons, the Commission respectfully submits that the
Information Commissioner should exercise the discretion in section 54W(a)(i)
of the FOI Act to discontinue the IC review on the basis that it is lacking in
substance and is not made in good faith.
Please feel free to contact the Commission should you require any further
information. The Commission understands that the Information Commissioner will
share a copy of these submissions with the Applicant.
Yours sincerely Melanie McIntyre, General Counsel

1 Legal and Constitutional Affairs References Committee report on the Operation of Commonwealth
Freedom of Information (FOI) laws, December 2023, see for example paragraphs [5.9] to [5.20]
commencing at page 89.
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