Request Number : 1322414
Doc No: D24/355990
John Smith (subNAC)
Pascoe Vale South
Dear John Smith
Freedom of Information Request
1.
I refer to previous correspondence in relation to an intended request for access under the
Freedom of Information Act 1982 (Vic) (“
FOI Act”).
2.
In summary, this letter:
(a)
sets out a history of the attempts by Merri-bek City Council (“
Council”) to provide
reasonable assistance for an intending applicant to make a request for access under
the FOI Act;
(b)
sets out the need for identification information to be provided in relation to the
intending applicant before a valid request is considered as having been made under
the FOI Act;
(c)
sets out numerous matters in relation to what the Council now understands to be
requested under the FOI Act which require clarification or confirmation before the
request could be considered valid under the FOI Act.
(d)
sets out that unless the matters if identification of an applicant and issues about clarify
of request are addressed within 14 days of this letter, the Council not be able to assist,
the request wil be treated as having lapsed, and this matter wil be brought to an end.
Relevant background
3.
On 18 November 2023 the Council received an email with a subject heading “Freedom of
Information request – Local Councils rationale on supporting Palestine”. It was from SubNAC
and sought access in the fol owing terms:
I am submitting a comprehensive request under the Freedom of Information Act 1982
for the disclosure of information concerning the Merri-bek City Council’s discussions
and actions on several key matters. Specifical y, I am seeking access to:
1.
Al correspondence, including emails, letters, and memoranda, exchanged
between executives and councillors discussing the Gaza crisis.
2.
Records of meetings, minutes, or reports related to discussions and decisions
made by the council regarding the Gaza crisis.
3.
All instances of antisemitic comments made by staff, executives, councillors,
and residents, with details of the comments and actions taken by the council in
response.
4.
Correspondence, including extracts from secure chat applications such as
WhatsApp, between council ors, the CEO, and executives concerning the Gaza
crisis.
5.
All correspondence, including emails, letters, and memoranda, discussing the
decision to raise the Palestinian flag.
6.
Records of meetings, minutes, or reports related to the decision-making
process and discussions leading to the raising of the Palestinian flag.
7.
Any communication between executives, council ors, and staff regarding the
logistics, public response, and any associated costs of raising the Palestinian
flag.
8.
Documents outlining the council’s official stance, policies, or guidelines related
to the display of flags, specifically the Palestinian flag.
9.
All correspondence, including emails, letters, and memoranda, discussing the
council’s support for Hamas.
10.
Records of meetings, minutes, or reports related to discussions and decisions
made by the council regarding support for Hamas.
11.
Any documentation outlining the council’s stance or policies on supporting
organisations, specifically Hamas.
12.
Information related to the awareness and consideration of potential breaches
of the Criminal Code Act 1995 and Division 102 in the council’s support for
Hamas.
13.
Al financial records related to security measures for the protection of staff and
council ors who voted against the raising of the Palestinian flag.
14.
Financials and time allocations related to the council’s support for Hamas,
including expenses covered by ratepayers.
15.
Records of discussions or decisions made concerning Jewish residents and
businesses in the municipality, including any financial implications.
I understand that certain information may be sensitive or confidential, and I request
that any redactions be clearly justified in accordance with the relevant provisions of
the Freedom of Information Act. If possible, please provide the information in
electronic format.
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I appreciate your attention to this matter and look forward to a timely response within
the statutory timeframe stipulated by the Freedom of Information Act. Should there be
any fees associated with processing this request, please inform me in advance.
4.
On 13 December 2023 the Council responded to subNAC:
Thank you for submitting your Freedom of Information (FOI) request. Unfortunately,
you have not provided us with enough information to validate and process your
request. Would you please email us via xxx@xxxxxxxxx.xxx.xxx.xx and provide us with
your name and contact details, or your name and the name and address of the
company or incorporated association you represent (if applicable).
5.
On 29 December 2023 the Council received a response from subNAC which included the
following:
In light of your request for additional information to validate and process our FOI
request, we want to assure you of our ful cooperation within the bounds of relevant
legislation. While maintaining our preference for anonymity, we are prepared to
provide any necessary details that align with the requirements of applicable
legislation.
In addition to the Freedom of Information Act 1982 (Cth), we would like to draw
attention to the Privacy Act 1988 (Cth), which outlines principles concerning the
col ection and handling of personal information. We believe that our request aligns
with the principles of privacy and data protection outlined in this legislation.
Furthermore, we appreciate your understanding of the importance of maintaining
confidentiality, and we trust that col aboration wil ensure the processing of our FOI
request is in compliance with any relevant federal or local laws and guidelines.
If there are specific legal requirements or questions that need clarification, please feel
free to communicate them.
6.
That response from subNAC:
(a) referred to “we” and “our” and “our FOI request” suggesting a collective or joint
request rather than referring to an individual;
(b) referred to Commonwealth freedom of information and privacy legislation, which has
no application to the Council.
7.
After receiving a fol ow up response from subNAC on 5 January 2024, the Council reiterated
to subNAC:
As previously advised, Council does not have enough information to validate and
process your request. In accordance with Section 17 of the FOI Act 1982 (VIC), you
must pay an application fee of $31.80 to validate your request. Alternatively, you can
provide proof of concession for an application fee waiver.
Would you please email us at xxx@xxxxxxxxx.xxx.xxx.xx with your name and contact
details, or with your name, and the name and address of the company/incorporated
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organisation you represent (if applicable), so that an invoice can be raised for your
application fee.
That is, the Council clarified that the Victorian FOI Act was in play and notified the need for an
application fee and again requested identifying information, to facilitate payment of the
application fee.
8.
On 10 January 2024 the Council received from subNAC:
Thank you for your swift response. In order to expedite payment, we propose utilising
a money order without the inclusion of personal identifiers. Kindly provide the
necessary details, including a reference number for tracking purposes.
In consideration of privacy, it’s worth noting Section 11C of the Freedom of
Information Act 1982 (Cth), which underscores the significance of ensuring applicant
anonymity. We appreciate your commitment to complying with relevant legislation
and anticipate a smooth processing of our request.
It again wrongly refers to a provision in the Commonwealth legislation, despite the Council’s
previous email clarifying that the Victorian FOI Act applied and, in any event, referred to a
provision which is not about anonymity of applicants.
9.
On 26 January 2024 the Council received from subNAC further contact seeking “an internal
review” of the Council’s handling of the FOI request and raising concerns about delay in
circumstances where no valid request had yet been received.
10.
On 31 January 2024 the Council responded by reiterating that the Council does not have
enough information to validate and process the request, pointing out that the Council is an
agency under the Victorian FOI Act, not the Commonwealth legislation, and reiterating it
requires more information to determine eligibility to make a request for access under s 13 of
the FOI Act before issuing an invoice for the application fee. It described the meaning of
“person” and “individual” under the
Interpretation of Legislation Act 1984 (Vic) and requested
for the third time more identifying information:
A natural person is commonly taken to refer to an individual human being. You have
provided insufficient information to demonstrate you are applying as a person or a
body politic or corporate, as defined in Section 38 of the Interpretation of Legislation
Act 1984, for the purpose of Section 13 of the FOI Act and are therefore ineligible to
make a request. I am inviting you to provide further information and/or documentation
in support of you as a person, body politic or corporate.
Would you please email us via xxx@xxxxxxxxx.xxx.xxx.xx and provide us with your
name and contact details, or your name and the name and address of the company or
incorporated organisation that you represent (if applicable).
The Council also provided links to information available on its website in relation to the
Council’s position on the war in Gaza.
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11.
On 28 February 2024, subNAC responded by apologising for confusion as to jurisdiction,
thanked the Council for the links to information, and purported to provide “the necessary
information for validation” as follows:
Name: John Smith
Contact details: Pascoe vale south
12.
On 21 March 2024 the Council sent an invoice to subNAC in the name of J Smith, confirmed
that contact details are incomplete, and foreshadowed that the “request wil also need to be
clarified under Section 17 of the FOI Act before it can be processed.
13.
On 6 April 2024 the application fee required by the FOI Act was paid by recipient ‘Public’,
with the surname given of ‘Anon’. Payment was acknowledged by the Council on 11 April
2024, and it was confirmed that the Council wil be in touch about the request.
14.
On 29 April 2024 the Council sent a letter under s 17 of the FOI Act seeking clarification of
the request before it could be considered valid. That letter:
(a) pointed out that a specific date range was needed and asked whether the range of 7
October 2023 (when the current Gaza conflict started) to 18 November 2023 (when
the request was submitted) was a satisfactory date range.
(b) asked for clarification of what was meant by the word “executive” in item 1 of the
request and asked for confirmation that it meant the CEO and directors of the 4
branches of the Council available on a web page to which a link was provided.
(c) asked for clarification of item 12, which sought access to information and not a
document and sought confirmation as to whether that information was being sought
outside the FOI Act.
(d) pointed out that, on the understanding that the term “support” meant any financial,
material, practical or promotional assistance that uses the resources of the Council or
its officers, the Council had no documents for items 9-11 and 14 of the request.
(e) pointed out in relation to item 8 of the request where the Council’s civic flag policy
could be found on its website and requested confirmation that satisfied item 8.
(f) provided outside the FOI Act, in relation to item 15 of the request, a link to its website
in relation to the Council’s position on business with companies who manufacture,
distribute or benefit from weapons of war and sought confirmation that satisfied item
15.
(g) confirmed that information was already proactively disclosed in relation to items 2, 5
and 8 of the request and sought confirmation those items were resolved.
(h) asked for the stated matters to be addressed or consultation undertaken in relation to
them by 20 May 2024.
15.
After hours, at 7.24pm, on 20 May 2024 subNAC responded by providing “the necessary
clarifications to ensure my request is processed efficiently and comprehensively” as fol ows:
Clarifications and Additional Details:
1. Specific Date Range:
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To provide a clear timeframe for my request, I specify the period from 7 October 2023
to the present date. This extended period should cover al relevant communications
and actions.
2. Definition of ‘Executive’:
My reference to ‘executive’ includes Cathy Henderson (CEO of Merri-bek Council) and
the Directors of the four branches who report directly to the CEO. The directors are:
• Chief Executive Officer (CEO): Cathy Henderson
• Director of Business Transformation: Sue Vujcevic
• Director of City Infrastructure: Anita Curnow
• Director of Community: Eamonn Fennessy
• Director of Place and Environment (Acting): Phillip Priest
3. Systems and Platforms:
The search for relevant documents should include al digital and electronic systems
utilised by the Council. These systems include but are not limited to:
• Content Manager (formerly TRIM)
• Microsoft Exchange
• Microsoft Teams
• OneDrive
• Network Shares
• CRM Systems (such as Pathway)
• Communication platforms (WhatsApp, iMessage, SMS)
• Any calls or call recordings
Please ensure that al devices (mobiles, computers, etc.) that have logged into any
Council accounts (such as Microsoft 365) are included. If these devices have accessed
or stored Council information, they fal within the scope of this request.
4. Council ors:
The search should include records involving al current council ors. The Merri-bek City
Council consists of:
• North-East Ward:
• Annalivia Carli Hannan
• Adam Pulford
• Sue Bolton
• Helen Pavlidis-Mihalakos
• North-West Ward:
• Oscar Yildiz
• Helen Davidson
• Angelica Panopoulos
• Monica Harte
• South Ward:
• Lambros Tapinos
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• Mark Riley
• James Conlan
5. Scope of the Request:
Please ensure that all emails sent directly to councillors, as well as any personal emails
or documents created or saved on Council devices, are included. This encompasses al
communications related to the specified topics, regardless of the platform used.
6. Specific Items of Interest:
Please ensure that searches cover:
• Correspondence and decisions regarding the Gaza crisis.
• Discussions and decisions related to the raising of the Palestinian flag.
• Any support for Hamas, including potential breaches of the Criminal Code
Act 1995 and Division 102.
• Security measures for the protection of staff and council ors who opposed
the flag-raising.
• Discussions and decisions concerning Jewish residents and businesses.
• Instances of antisemitic comments made by staff, executives, council ors, and
residents, with details of
the comments and actions taken by the council in response.
• Financial records related to security measures for the protection of staff and
council ors who voted
against the raising of the Palestinian flag.
• Financials and time al ocations related to the council’s support for Hamas,
including expenses covered by
ratepayers.
7. Public Disclosure and Support for Palestine:
Given the publicly disclosed support for Palestine and its potential funding and
backing by Iran, I request al relevant communications and documents. This is essential
for understanding how these align with Council’s policies and actions.
Request for Evidence of Searches:
To ensure transparency, I request evidence of the searches conducted and the criteria
used for each system mentioned above. This includes logs or reports generated from
the searches to verify the thoroughness and scope of the inquiry.
I trust these clarifications address the issues raised and facilitate a comprehensive
search and processing of my FOI request. I look forward to your timely response
within the statutory timeframe stipulated by the Freedom of Information Act.
Yours sincerely,
John Smith
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16.
On 19 June 2024, the Council sent a further letter seeking that additional points be addressed
by subNAC before the request could be considered valid. That letter:
(a) confirmed the date range from 7 October 2023 to “the present date”.
(b) confirmed the definition of “Executive” and added that the names of additional
persons wil be added for the time there were Acting Directors.
(c) pointed out that the previous query in relation to item 12 and whether information
was sought outside the FOI Act had not been addressed and that if documents were
sought, seeking further information to enable any documents sought to be identified.
(d) pointed out that the previous request to confirm that items 2,6, 8 and 15 had been
resolved had not been addressed and that if they had not been, to provide further
information to identify the documents sought.
(e) in light of point 7 of the response of 20 May 2024, asking for confirmation that this
was an additional, new point which did not previously exist in the earlier request and,
if so, to provide further information to identify the documents sought.
(f) providing until 10 July 2024 for subNAC to address the above matters.
17.
On 20 June 2024, subNAC sent a response in the fol owing terms amending and expanding
the request (deleting any commentary that does not bear on the scope of the request):
1. Specific Date Range
To provide a clear timeframe for my request, I specify the period from 7 October 2023
to the present date. This period should cover al relevant communications and actions
up to the day after my request is deemed valid.
2. Definition of ‘Executive’
My reference to ‘executive’ includes:
• Cathy Henderson, CEO of Merri-bek Council
• Sue Vujcevic, Director of Business Transformation
• Anita Curnow, Director of City Infrastructure
• Eamonn Fennessy, Director of Community
• Phillip Priest, Acting Director of Place and Environment from 6 May to 31 May 2024
• Victoria Hart, Acting Director of Place and Environment from 3 June to 24 June 2024
• Joseph Tabacco, Director of Place and Environment up to 3 May 2024
• Yvonne Cal anan, Manager Governance and Strategy
• Yvonne Attard, Legal Services Officer
3. Systems and Platforms
The search for relevant documents should include al digital and electronic systems
utilised by the Council.
These systems include but are not limited to:
• Content Manager (formerly TRIM)
• Microsoft Exchange
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• Microsoft Teams
• OneDrive
• Network Shares
• CRM Systems (such as Pathway)
• Communication platforms (WhatsApp, iMessage, SMS)
• SharePoint
• CXone (for cal recordings)
• Any other calls or call recordings
Please ensure that al devices (mobiles, computers, etc.) that have logged into any
Council accounts (such as Microsoft 365) are included. If these devices have accessed
or stored Council information, they fal within the scope of this request. If there are
other systems in use, please include them in the search and inform me of their
inclusion.
4. Council ors
The search should include records involving al current council ors. The Merri-bek City
Council consists of:
• North-East Ward:
• Annalivia Carli Hannan
• Adam Pulford
• Sue Bolton
• Helen Pavlidis-Mihalakos
• North-West Ward:
• Oscar Yildiz
• Helen Davidson
• Angelica Panopoulos
• Monica Harte
• South Ward:
• Lambros Tapinos
• Mark Riley
• James Conlan
5. Scope of the Request
Please ensure that all emails sent directly to councillors, as well as any personal emails
or documents created or saved on Council devices, are included. This encompasses al
communications related to the specified topics, regardless of the platform used.
6. Specific Items of Interest
Please ensure that searches cover:
• Correspondence and decisions regarding the Gaza crisis.
• Discussions and decisions related to the raising of the Palestinian flag.
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• Any support for Hamas, including potential breaches of the Criminal Code Act 1995
and Division 102.
• Security measures for the protection of staff and council ors who opposed the flag-
raising.
• Discussions and decisions concerning Jewish residents and businesses.
• Instances of antisemitic comments made by staff, executives, council ors, and
residents, with details of the comments and actions taken by the council in response.
• Financial records related to security measures for the protection of staff and
council ors who voted against the raising of the Palestinian flag.
• Financials and time allocations related to the council’s support for Hamas, including
expenses covered by ratepayers.
7. Public Disclosure and Support for Palestine
Given the publicly disclosed support for Palestine and its potential funding and
backing by Iran, I request al relevant communications and documents. This is essential
for understanding how these align with Council’s policies and actions.
8. Request for Evidence of Searches
To ensure transparency, I request evidence of the searches conducted and the criteria
used for each system mentioned above. This includes logs or reports generated from
the searches to verify the thoroughness and scope of the inquiry.
Specific Clarifications Required
1. Further Information for Point 12:
• I am specifical y seeking documents related to the council’s awareness and
consideration of potential breaches of the Criminal Code Act 1995 and Division 102
regarding the council’s support for Hamas. This includes any internal memos, reports,
legal advice, or correspondence discussing potential legal implications or breaches of
these provisions.
2. Resolution of Points 2, 6, 8, and 15:
• Regarding the information already provided for points 2, 6, 8, and 15 of my original
request, I confirm:
• Point 2 (Council decisions concerning Jewish residents and businesses): The
information provided does not ful y satisfy my request. I seek additional documents or
records of discussions that include financial implications and specific actions taken by
the council concerning Jewish residents and businesses.
• Point 6 (Council reports and minutes regarding Gaza and the Palestinian flag): The
information provided resolves this part of my request.
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• Point 8 (Civic Flag Policy): The additional information provided resolves this part of
my request.
• Point 15 (Council decisions concerning Jewish residents and businesses): As noted
above, the information provided does not ful y resolve this part of my request.
3. Security Measures for Protection:
• The mention of “security measures for the protection of staff and council ors who
opposed the flag raising” is not a new point but rather a clarification and expansion of
point 13 from my original request. This point specifically seeks all financial records and
measures implemented for the protection of those who opposed the flag-raising.
4. Public Disclosure and Support for Palestine:
• The request for al relevant communications and documents related to the publicly
disclosed support for Palestine and its potential funding and backing by Iran is indeed
a new point. This new point seeks to understand how these actions align with
Council’s policies and actions, including any correspondence, reports, or internal
discussions.
Request for Edited Copies
In accordance with section 25 of the FOI Act, I confirm that I wish to receive edited
copies of documents that contain exempt material, with the exempt portions removed.
Deadline for Compliance
I expect a ful response to this FOI request, including the provision of al requested
documents, by no later than 21 days from the date of this letter. Failure to comply
within this timeframe will result in immediate escalation to the appropriate legal
authorities.
I trust these clarifications address the issues raised and facilitate a comprehensive
search and processing of my FOI request. I look forward to your timely response
within the statutory timeframe stipulated by the Freedom of Information Act.
Thank you for your assistance.
Yours sincerely,
John Smith
18.
On 4 July 2024 the Council sent an email seeking confirmation that its understanding of the
terms of the request as follows was correct and, if not, to please clarify:
Timeframe:
7 October 2023 to 20 June 2024
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Officer search:
Cathy Henderson, CEO of Merri-bek Council
Sue Vujcevic, Director of Business Transformation
Anita Curnow, Director of City Infrastructure
Eamonn Fennessy, Director of Community Phil ip Priest,
Acting Director of Place and Environment from 6 May to 31 May 2024
Victoria Hart, Acting Director of Place and Environment from 3 June to 24 June 2024
Joseph Tabacco, Director of Place and Environment up to 3 May 2024
Yvonne Cal anan, Manager Governance and Strategy
Yvonne Attard, Legal Services Officer
Council or Search:
North-East Ward:
Annalivia Carli Hannan
Adam Pulford
Sue Bolton
Helen Pavlidis-Mihalakos
North-West Ward:
Oscar Yildiz
Helen Davidson
Angelica Panopoulos
Monica Harte
South Ward:
Lambros Tapinos
Mark Riley
James Conlan
Platforms:
Content Manager (formerly TRIM)
Microsoft Exchange
Microsoft Teams
OneDrive
Network Shares
CRM Systems (such as Pathway)
Communication platforms (WhatsApp, iMessage, SMS)
SharePoint
CXone (for cal recordings)
Any other calls or call recordings
Point Request
1
Al correspondence, including emails, letters, and memoranda, exchanged
between executives and councillors discussing the Gaza crisis
2
Records of meetings, minutes, or reports related to discussions and decisions
made by the council regarding the Gaza crisis. I seek additional documents or
12 of 24
records of discussions that include financial implications and specific actions
taken by the council concerning Jewish residents and businesses.
3
All instances of antisemitic comments made by staff, executives, councillors,
and residents, with details of the comments and actions taken by the council in
response
4
Correspondence, including extracts from secure chat applications such as
WhatsApp, between council ors, the CEO, and executives concerning the Gaza
crisis.
5
All correspondence, including emails, letters, and memoranda, discussing the
decision to raise the Palestinian flag
6
Records of meetings, minutes, or reports related to the decision-making
process and discussions leading to the raising of the Palestinian flag (resolved
outside of the act)
7
Any communication between executives, council ors, and staff regarding the
logistics, public response, and any associated costs of raising the Palestinian
flag
8
Documents outlining the council’s official stance, policies, or guidelines related
to the display of flags, specifically the Palestinian flag (resolved outside of the
act)
9
All correspondence, including emails, letters, and memoranda, discussing the
council’s support for Hamas.
10
Records of meetings, minutes, or reports related to discussions and decisions
made by the council regarding support for Hamas.
11
Any documentation outlining the council’s stance or policies on supporting
organisations, specifically Hamas
12
I am specifical y seeking documents related to the council’s awareness and
consideration of potential breaches of the Criminal Code Act 1995 and Division
102 regarding the council’s support for Hamas. This includes any internal
memos, reports, legal advice, or correspondence discussing potential legal
implications or breaches of these provisions
13
Al financial records related to security measures for the protection of staff and
council ors who voted against the raising of the Palestinian flag.
14
Financials and time allocations related to the council’s support for Hamas,
including expenses covered by ratepayers
15
Records of discussions or decisions made concerning Jewish residents and
businesses in the municipality, including any financial implications. I seek
additional documents or records of discussions that include financial
implications and specific actions taken by the council concerning Jewish
residents and businesses.
16
Al relevant communications and documents related to the publicly disclosed
support for Palestine and its potential funding and backing by Iran
13 of 24
19.
On 7 July 2024 subNAC sent yet a further response providing “necessary confirmations and
additional clarifications” in the fol owing terms (again deleting any commentary that does not
bear on the scope of the request):
1. Timeframe:
• Council’s Understanding: 7 October 2023 to 20 June 2024.
• Clarification: The requested timeframe should extend from 7 October 2023 to
the present date or until the date when the documents are provided. Fixing the
end date at 20 June 2024 is not acceptable as it may exclude relevant
documents generated after this date.
2. Officer Search:
The list of officers provided matches my request:
• Cathy Henderson, CEO of Merri-bek Council
• Sue Vujcevic, Director of Business Transformation
• Anita Curnow, Director of City Infrastructure
• Eamonn Fennessy, Director of Community
• Phillip Priest, Acting Director of Place and Environment from 6 May to 31 May 2024
• Victoria Hart, Acting Director of Place and Environment from 3 June to 24 June 2024
• Joseph Tabacco, Director of Place and Environment up to 3 May 2024
• Yvonne Cal anan, Manager Governance and Strategy
• Yvonne Attard, Legal Services Officer
3. Council or Search:
The list of councillors provided matches my request:
• North-East Ward:
• Annalivia Carli Hannan
• Adam Pulford
• Sue Bolton
• Helen Pavlidis-Mihalakos
• North-West Ward:
• Oscar Yildiz
• Helen Davidson
• Angelica Panopoulos
• Monica Harte
• South Ward:
• Lambros Tapinos
• Mark Riley
• James Conlan
4. Platforms:
The platforms listed match my request, including all digital and electronic systems
utilised by the Council:
• Content Manager (formerly TRIM)
• Microsoft Exchange
• Microsoft Teams
• OneDrive
• Network Shares
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• CRM Systems (such as Pathway)
• Communication platforms (WhatsApp, iMessage, SMS)
• SharePoint
• CXone (for cal recordings)
• Any other calls or call recordings
• Microsoft 365
• Any document management systems active, including those with third-party
providers like Grace
• Backups of information not in the live environment
• Data from personal devices that have been used to access council accounts or
information
5. Point Request:
Your understanding of the specific points is largely correct with the fol owing
clarifications:
• Point 1: All correspondence, including emails, letters, and memoranda,
exchanged between executives and council ors discussing the Gaza crisis.
• Point 2: In addition to records of meetings, minutes, or reports related to
discussions and decisions made by the council regarding the Gaza crisis,
please include documents or records of discussions that include financial
implications and specific actions taken by the council concerning Jewish
residents and businesses.
• Point 3: Al instances of antisemitic comments made by staff, executives,
council ors, and residents, with details of the comments and actions taken by
the council in response.
• Point 4: Correspondence, including extracts from secure chat applications
such as WhatsApp, between council ors, the CEO, and executives concerning
the Gaza crisis.
• Point 5: All correspondence, including emails, letters, and memoranda,
discussing the decision to raise the Palestinian flag.
• Point 6: Ensure that al records of meetings, minutes, or reports related to the
decision-making process and discussions leading to the raising of the
Palestinian flag are provided. If this point is fully resolved outside the act,
please confirm no further documents are needed.
• Point 7: Any communication between executives, council ors, and staff
regarding the logistics, public response, and any associated costs of raising the
Palestinian flag.
• Point 8: Ensure all documents outlining the council’s official stance, policies,
or guidelines related to the display of flags, specifically the Palestinian flag, are
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provided. If this point is ful y resolved outside the act, please confirm no further
documents are needed.
• Point 9: All correspondence, including emails, letters, and memoranda,
discussing the council’s support for Hamas.
• Point 10: Records of meetings, minutes, or reports related to discussions and
decisions made by the council regarding support for Hamas.
• Point 11: Any documentation outlining the council’s stance or policies on
supporting organisations, specifically Hamas.
• Point 12: Documents related to the council’s awareness and consideration of
potential breaches of the Criminal Code Act 1995 and Division 102 regarding
the council’s support for Hamas. This includes any internal memos, reports,
legal advice, or correspondence discussing potential legal implications or
breaches of these provisions.
• Point 13: Al financial records related to security measures for the protection
of staff and council ors who voted against the raising of the Palestinian flag.
• Point 14: Financials and time allocations related to the council’s support for
Hamas, including expenses covered by ratepayers.
• Point 15: Records of discussions or decisions made concerning Jewish
residents and businesses in the municipality, including any financial
implications. Please ensure additional documents or records of discussions that
include financial implications and specific actions taken by the council
concerning Jewish residents and businesses are provided.
• Point 16: Al relevant communications and documents related to the publicly
disclosed support for Palestine and its potential funding and backing by Iran.
…
Request for Edited Copies:
In accordance with section 25 of the FOI Act, I confirm that I wish to receive edited
copies of documents that contain exempt material, with the exempt portions removed.
…
Deadline for Compliance:
I expect a ful response to this FOI request, including the provision of al requested
documents, by no later than 21 days from the date of this letter. Failure to comply
within this timeframe will result in immediate escalation to the appropriate legal
authorities.
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I trust these clarifications address the issues raised and facilitate a comprehensive
search and processing of my FOI request. I look forward to your timely response
within the statutory timeframe stipulated by the Freedom of Information Act.
Thank you for your assistance.
Yours sincerely,
John Smith
Current wording of request
20.
The clarification of the timeframe covered by the request in the communication of 7 July 2024
is stated as being from 7 October 2023 “to the present date or until the date when
documents are provided”.
21.
A request for access may be made to an agency, such as the Council, for documents in its
possession as at the date of the request. An applicant cannot seek access to documents
which are not in existence as at the date of the request.
22.
Accordingly, the timeframe covered by the request wil be taken to be 7 October 2023 to 7
July 2024.
23.
Subject to matters contained later in this notice, the Council wil treat the request for access to
be in the following terms:
1. Al correspondence, including emails, letters and memoranda, exchanged between
executives and councillors discussing the Gaza crisis.
2. (a) Records of meetings, minutes, or reports related to discussions and decisions
made by the Council regarding the Gaza crisis.
(b) Documents that include financial implications and specific actions taken by the
Council concerning Jewish residents and businesses.
3. All instances of antisemitic comments made by staff, executives, councillors, and
residents, with details of the comments and action taken by the Council in
response.
4. Correspondence, including extracts from secure chat applications such as
WhatsApp, between council ors, the CEO and executives concerning the Gaza
crisis.
5. All correspondence, including emails, letters, and memoranda, discussing the
decision to raise the Palestinian flag.
6. Al records of meetings, minutes or reports related to decision making process and
discussions leading to the raising of the Palestinian flag.
7. Any communication between executives, council ors and staff regarding the
logistics, public response, and any associated costs of raising the Palestinian flag.
8. All documents outlining the Council’s official stance, policies, or guidelines related
to the display of flags, specifically the Palestinian flag.
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9. All correspondence, including emails, letters, and memoranda, discussing the
Council’s support for Hamas.
10. Records of meetings, minutes, or reports related to discussions and decisions
made by the council regarding support for Hamas.
11. Any documentation outlining the council’s stance or policies on supporting
organisations, specifically Hamas.
12. Documents related to the council’s awareness and consideration of potential
breaches of the Criminal Code Act 1995 and Division 102 regarding the council’s
support for Hamas. This includes any internal memos, reports, legal advice, or
correspondence discussing potential legal implications or breaches of these
provisions.
13. Al financial records related to security measures for the protection of staff and
council ors who voted against the raising of the Palestinian flag.
14. Financials and time allocations related to the council’s support for Hamas,
including expenses covered by ratepayers.
15. (a) Records of discussions or decisions made, including any financial implications,
concerning Jewish residents and businesses in the municipality.
(b) Documents that include financial implications and specific actions taken by the
Council concerning Jewish residents and businesses.
16. Al relevant communications and documents related to the publicly disclosed
support for Palestine and its potential funding and backing by Iran.
Where:
“executives” is a reference to:
• Cathy Henderson, CEO of Merri-bek Council
• Sue Vujcevic, Director of Business Transformation
• Anita Curnow, Director of City Infrastructure
• Eamonn Fennessy, Director of Community
• Phillip Priest, Acting Director of Place and Environment from 6 May to 31
May 2024
• Victoria Hart, Acting Director of Place and Environment from 3 June to 24
June 2024
• Joseph Tabacco, Director of Place and Environment up to 3 May 2024
• Yvonne Cal anan, Manager Governance and Strategy
• Yvonne Attard, Legal Services Officer
“council ors” is a reference to:
• Annalivia Carli Hannan
• Adam Pulford
• Sue Bolton
• Helen Pavlidis-Mihalakos
• Oscar Yildiz
• Helen Davidson
• Angelica Panopoulos
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• Monica Harte
• Lambros Tapinos
• Mark Riley
• James Conlan
And you expect the Council to search the platforms including all digital and electronic
systems utilised by the Council:
• Content Manager (formerly TRIM)
• Microsoft Exchange
• Microsoft Teams
• OneDrive
• Network Shares
• CRM Systems (such as Pathway)
• Communication platforms (WhatsApp, iMessage, SMS)
• SharePoint
• CXone (for cal recordings)
• Any other calls or call recordings
• Microsoft 365
• Any document management systems active, including those with third-party
providers like Grace
• Backups of information not in the live environment
• Data from personal devices that have been used to access council accounts
or information
And you wish to receive access to documents with any exempt matter deleted in
accordance with s 25 of the FOI Act. (“
Request”)
Validity – identification of applicant
24.
The right of access to documents created by s 13 of the FOI Act is subject to the FOI Act.
Under s 17 of the FOI Act request for access must be made “in accordance with this Act.”
That includes that a person who wishes to obtain access must comply with s 17 of the FOI
Act.
25.
A “person” is defined in s 38 of the
Interpretation of Legislation Act 1984 (Vic) as including a
body politic or corporate as well as an individual. An “individual” is defined in that section to
mean a natural person.
26.
In communications from the Council, subNAC was requested to provide information sufficient
information to enable the Council to determine whether the request under the FOI Act was
being made by a natural person, a corporate body, or a body politic. Requests were made for
identifying information in the Council’s communications of:
• 13 December 2023;
• 5 January 2024;
• 31 January 2024;
• 21 March 2024.
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link to page 20
27.
The responses from subNac were:
•
While maintaining our preference for anonymity, we are prepared to provide any
necessary details that align with the requirements of applicable legislation: 29 December
2023 (referring to Commonwealth laws);
• Seeking to make payment of the application fee “without the inclusion of personal
identifiers” and asserting the (incorrect) Commonwealth legislation supported anonymity:
10 January 2024;
• Purporting to provide the “the necessary information for validation” by stating the Name:
John Smith and contact details as Pascoe vale south: 28 February 2024. It is noted that in
dealings with the Office of the Information Commissioner and the complaint made by
subNAC, correspondence has been signed off by “A Citizen”;
1
• Failing or refusing to provide any further information identifying the applicant despite the
Council’s indications of inadequacy of information, the last of which was on 21 March
2024.
28.
It is not practicable for a request for access to be made under the FOI Act unless and until an
agency is provided with sufficient information to identify an applicant. That information is
reasonably necessary, and consistent with government agency practice in dealing with FOI
requests, for the fol owing reasons to enable an agency to be satisfied that the right of access
has been properly enlivened under the FOI Act, and to be able to properly satisfy its legal
obligations under the FOI Act in relation to a request:
(a)
to ascertain whether there is a person seeking to make a request;
(b)
to ascertain whether the person is a natural person or not and, if so, whether the
request is being made individual y, on behalf of another person, by more than one
person (as suggested by references in subNAC communications referring to “we” and
“our FOI request”), or on behalf of a corporate or other body;
(c)
to determine whether access charges and if so which are payable if documents contain
“information relating to the personal affairs of the applicant” (s 22(1)(h)(i i), FOI Act) or
whether the applicant is a member of the Victorian Parliament (s 22(1)(h)(i ), FOI Act),
or the applicant’s intended use is of general public interest or benefit (s 22(1)(h)(i), FOI
Act);
(d)
when considering whether documents are exempt, the Council is required to decide
matters on the basis of disclosure to a
particular applicant, and not to the world at
large – requiring identification of the particular applicant to enable that to occur;
(e)
when consulting with third parties, as required under various potential exemptions,
being able to obtain ful y informed responses from those third parties who are entitled
to know who the applicant is when their views are sought about exemption.
29.
In short, anonymity in the making of a request for access under the FOI Act is not practicable
without sufficient identifying information being provided.
30.
Accordingly, and subject to the remainder of this notice, the Council requires the fol owing
information before it is able to treat the Request as valid:
(a)
if the applicant is a natural person/individual:
1 As is customary, the Office of the Victorian Information Commission has provided to the Council a copy of the
complaint made to it.
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(i) name
(ii) postal address and/or email address
(iii) unedited photo identification (eg driver's license, passport, etc)
(iv) if the request is being made by more than one person jointly, the same information for
each intending applicant
(v) if the request is being made on behalf of another person, signed written authority of
that person;
(b)
if the applicant is a corporate or other body:
(i) name and type of body
(ii) address (including registered office)
(iii) capacity in which the individual representing that body is making the request (eg
director, secretary, etc)
(iv) Unedited photo identification (eg driver's license, passport, etc)
(v) if the request is being made by more than one person jointly, the same information for
each intending applicant
(vi) if the request is being made on behalf of another person, signed written authority of
that person.
Validity – unclear request
31.
Another requirement of s 17 of the FOI Act is that an FOI request must provide such
information concerning the documents sought as is reasonably necessary to enable a
responsible officer of the agency to identify those documents. An applicant must strive to
define with as much precision as possible the documents sought in terms that wil enable an
appropriate officer of the agency to constructively search for al those documents. The
documents sought must be described in a way which would enable the agency to identify al
the documents sought within a reasonable time and with the exercise of reasonable effort.
32.
If a request is ambiguous, unclear or otherwise il defined, it does not comply with the FOI Act
and need not be processed. It should not be for officers of an agency to assume what
documents are actual y sought or to tease out what an applicant might be getting at.
33.
Further, the FOI Act is about access to
documents and not
information as such and a request
for information might not be validly made.
34.
The Request is presently ambiguous and unclear, and does not provide sufficient information
to enable the Council to identify the documents you seek within a reasonable time and with
reasonable effort. As a result, the Council seeks clarification of some aspects of the Request
and provides the fol owing information to assist you in doing so:
(a)
In relation to
Item 1 of the Request you seek correspondence “exchanged between
executives and council ors…”. Could you please confirm that you seek al
correspondence “exchanged between one or more of the executives, and one or more
of the council ors” and that not al correspondence must go to al executives and al
council ors identified. If that is not what is intended, please clarify what is meant.
(b)
In relation to
Item 2(a) of the Request, could you please confirm that the documents
you seek should not only record discussions about the “Gaza crisis” but also include
decisions made by the Council about the “Gaza crisis”. If that is not what is intended,
please clarify what is meant.
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(c)
In relation to
Item 2(b) of the Request, could you please confirm that the documents
sought must also be “regarding the Gaza crisis”. At present, the documents sought
could be about financial implications and specific actions taken by the Council
concerning Jewish residents and businesses but without any connection to the Gaza
crisis.
(d)
In relation to
Item 2(b) of the Request, could you please confirm that the reference to
Jewish residents and businesses is about those in the municipality. At present there is
no geographical limitation.
(e)
Subject to the clarification in the previous paragraphs, in relation to
Item 2(b) could
you please confirm that the documents you seek should not only include financial
implications, but should also include specific actions taken by the Council. If that is not
what is intended, please clarify what is meant.
(f)
In relation to
Item 3, the Request is presently for information as such and not
documents. Could you please confirm that what is sought are al documents recording
any antisemitic comments made by staff, executives, councillors, or residents, and
action taken by the Council in response.
(g)
Subject to the clarification in the previous paragraph, in relation to
Item 3 could you
please confirm that the documents you seek should not only record the antisemitic
comments, but should also record the action taken by the Council in relation to those
comments. If that is not what is intended, please clarify what is meant.
(h)
In relation to
Item 4 of the Request, and given that the CEO is included in the
definition of “executives”, could you please confirm that you seek al correspondence
between one or more of the executives, and one or more of the council ors and that
not all correspondence must be between all executives and all councillors. If that is
not what is intended, please clarify what is meant.
(i)
In relation to
Item 6 of the Request, it presently seeks al correspondence “
related to
decision making process and discussions”. Could you please clarify whether the
correspondence must deal with
both decision making process
and discussions or
whether you intended that to be a reference to decision making
or discussions.
(j)
In relation to
Item 7 of the Request, could you please confirm that you seek al
communications (not just any communications).
(k)
In relation to
Item 7 of the Request could you please confirm that you seek
communications between:
•
one or more of the executives;
•
one or more of the council ors; and/or
•
one or more members of staff of the Council.
(l)
In relation to
Item 7 of the Request, it presently seeks communications “
regarding the
logistics, public response, and any associated costs”. Could you please clarify whether
the communications must deal with al three subject matters, or whether you intended
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that to be a reference to any one or more of those subject matters in relation to raising
the Palestinian flag.
(m)
In relation to
Item 10 of the Request, could you please confirm whether you seek
documents which record discussions
and decisions made by the council, or whether
that was intended to be discussions
or decisions made by the Council.
(n)
In relation to
Item 11, the Request presently seeks documents about
“supporting
organisations”. It then goes on to refer to,
“specifically Hamas”. As it presently
literal y reads, it would capture al organisations which the Council might support, no
matter what the cause. Did you intend that to be limited only to documents about
supporting Hamas or something broader and, if so, what.
(o)
Item 14 of the Request presently seeks “Financials”. Bearing in mind Item 13 refers to
“all financial records”, could you please describe what is meant by “Financials” in Item
14 and how that relates to “expenses covered by ratepayers” referred to later in Item
14.
(p)
Item 14 of the Request also presently seeks “time al ocations” which appears to be a
request for information and not a document. Could you please describe what
document or documents are sought and in respect of what. For example, in relation to
al ocation of what or whose time, and how does that relate to “expenses covered by
ratepayers” referred to later in Item 14.
(q)
In relation to
Item 14 of the Request, what is meant by “expenses covered by
ratepayers” in the context of the remainder of that Item?
(r)
In relation to
Items 15(a) and (b), and bearing in mind the terms of Items 2(a) and (b)
being in relation to the Gaza crisis, could you please explain or clarify in respect of
what the Council is understood or expected to have discussed, made decisions or
taken action concerning Jewish residents and businesses in the municipality.
(s)
In relation to
Item 16 of the Request, could you please clarify what you consider to be
“relevant” communications and documents about the subject matter described in that
Item. What the Council considers relevant and what you consider as relevant and
relevant to what could differ.
The way forward
35.
For the reasons set out above:
(a) the Request is not valid; and
(b) a search for documents cannot reasonably be commenced until it is clear what
documents are sought.
36.
I invite you to consult with the Council with a view to addressing the identification of the
applicant and either amending or clarifying the Request so that it is in a form which complies
with s 17 of the FOI Act and provides the information necessary to enable the Council to
identify the documents sought. If you wish to consult, please feel free to email me at
xxx@xxxxxxxxx.xxx.xxx.xx
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37.
Alternatively, you may wish to submit an amended request to address the two validity issues
raised above in relation to identification of an applicant and clarification of the Request (the
latter of which could potential y involve or by removing parts of the Request).
38.
Please note that until the Request is made in a manner required by s 17 of the FOI Act it
cannot be processed and the 30 day time period within which a decision must be made on
the Request has not commenced to run.
39.
It is noted that the Council has engaged with you over a lengthy period of time with a view to
addressing the identity issue and previously identified issues about clarity, to no avail. In all
the circumstances, pleases note that if those matters are not addressed adequately or at al
within 14 days of today, the Council wil refuse to comply with the request by treating the
request as having lapsed.
40.
The Council looks forward to hearing from you or receiving an amended request.
Yours sincerely
Troy Delia
FOI Officer
18 September 2024
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