Date: Fri, 06 Jul 2018 02:23:55 +0000
Subject: Internal review of Freedom of Information request - APSC produced document for the IPA
From: Fliccy <xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
To: FOI <xxx@xxxx.xxx.xx>

Dear FOI,

Pursuant to section 54 of the Freedom of Information Act 1982 (the FOI Act), I seek internal review of xxxxx xxxxxxxxxxx’s decision of 7 June 2018 to refuse access to the documents the subject of my request made under the FOI Act on 2 November 2017.

My request made under the FOI Act on 2 November 2017 concerned:
“[…] a 13 page document by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the “APSC produced document for the IPA”) beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf) for the use and benefit of far right wing political extremist group, the Institute of Public Affairs (the ‘IPA’) – a political group for which the current Public Service Commissioner is a contributing member, and former director.”

Specifically, I sought access to:
“[…] all documents held by the APSC that relate to the APSC produced document for the IPA.”

On 7 June 2018, xxxxx xxxxxxxxxxx, being the Group Manager of the APSC team that prepared “the APSC produced document for the IPA”, refused access to the documents the subject of my request on the basis that the APSC produced document for the IPA:
“[…] was not “prepared for the IPA” ” – just that the IPA happened to be the only recipient of that document and therefore, according to Mr xxxxxxxxxxx, no related documents exist.

My submissions in support of my application for internal review of Mr xxxxxxxxxxx’s access refusal decision are as follows.

[1] My FOI request of 2 November 2017 sought copies of all documents held by the APSC that relate to ““[…] a 13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf”

[2] To simplify my request, I abbreviated reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf” by referring to it, for the purposes of my FOI request, as the “APSC produced document for the IPA”.

[3] The use of abbreviated references is a commonly used and understood literary technique. Mr xxxxxxxxxxx is aware of this, not least because Mr xxxxxxxxxxx uses the same literary technique in the work that he does for the Institute of Public Affairs (or, using an abbreviated reference, “the IPA”) while as a Commonwealth public servant. See, for example, Mr xxxxxxxxxxx’s email to his colleagues at the IPA at page 5 of the document here: https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf .

[4] An abbreviated reference need not necessarily bear any relationship to the document, entity or thing to which it refers. For example, one might abbreviate reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf” by referring to it as: i) “document(s) indicating xxxxx xxxxxxxxxxx was given advance notice of questions to be asked by Government senators at Senate Estimates”; or ii) “document(s) indicating the xxxxx xxxxxxxxxxx has given misleading information to the FWC” - but those abbreviated references would still be references to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf”.

[5] In the same way, even if it were true, as xxxxx xxxxxxxxxxx asserts, that the APSC produced document for the IPA, “[…] was not “prepared for the IPA” ”, the abbreviated reference of “the APSC produced document for the IPA” remains a reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3471/response/9986/attach/4/Documents%20C17%201026.pdf”. In any case, regardless of whether the APSC produced document for the IPA, was or wasn’t initially prepared for the IPA, it is not in dispute that the document was prepared by the APSC, and provided to the IPA, to advance the political agenda of the IPA – and so it is accurate to refer to the document as “the APSC produced document for the IPA”.

[6] Accordingly, I am of the view that Mr xxxxxxxxxxx’s decision to refuse access to the documents the subject of my request has been incorrectly and dishonestly made:
i) for purposes that run contra to the objects of the FOI Act,
ii) for the purpose of hindering scrutiny of the unethical and illegal practices of senior APSC staff; and
iii) in contravention of Mr xxxxxxxxxxx’s legal obligations to: i) behave honestly and with integrity (s.13(1) of the Public Service Act 1999), ii) (noting Mr xxxxxxxxxxxx’s involvement in the preparation of the APSC produced document for the IPA and Mr xxxxxxxxxxx’s affiliation with the IPA), take steps to manage his conflict of interest in making a decision on this matter (s.13(7) of the Public Service Act 1999); iii) to behave in a way that upholds the APS Values (s.13(11) of the Public Service Act 1999) and, iv) by personal example, behave in a manner that promotes the APS Values and APS Code of Conduct (s.35(3)(c) of the Public Service Act 1999).

[7] But the APSC’s internal reviewer need not solely rely on my interpretation – he/she can simply look at how my FOI request was interpreted by other APSC staff.

[8] Upon receipt of my request, the APSC’s then Acting General Counsel, on 15/11/17 responded to it by stating that I am “liable to pay a charge for the processing of [my FOI] request” and that the APSC’s then Acting General Counsel preliminary assessment of that charge was $233.77 constituted of $77.50 for the search, retrieval and production of the relevant documents and $156.27 for decision-making time in respect of those relevant documents.

[9] But, if as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, why did the APSC’s then Acting General Counsel decide to impose a processing charge of $233.77 (being representative of the apparent costs of searching, retrieving, producing and deciding upon relevant documents) in respect of my request for documents?

[10] When I wrote to the APSC to request that the $233.77 processing charge not be imposed because access to the documents is in the general public interest, on 12/1/18, the APSC’s Director, Integrity declined my request and affirmed the $233.77 preliminary charges decision including by stating:
•“[h]aving consulted with the relevant line areas and reviewed certain documents falling within the scope of your request [...]”;
•“I consider that disclosure of the documents sought, being emails relating to the [APSC produced document for the IPA] is not in the general public interest or of interest to a substantial section of the public. This is because the documents you are seeking were created three years' ago and in my view, release of the same do not meet the objectives of the FOI Act.”
•“I have also taken into consideration the cost to the Commission in processing your FOI request, noting that the processing charges do not compensate the actual costs associated with the processing of your request. The true processing time for your request is longer than the total time considered for the purposes of determining the preliminary assessment of charges.”
•“I have independently considered the calculation of the preliminary charges assessment, and I am satisfied that the estimated charge is valid, based on discussions with the relevant line area and my own knowledge of the time required to undertake third party consultations, and to draft and settle a decision.”

[11] In the APSC’s Director, Integrity’s own words, she has identified “certain documents falling within the scope of [my] request”. But, if as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, why did the APSC’s Director, Integrity decide to affirm a decision to impose a processing charge of $233.77 (being representative of the apparent costs of searching, retrieving, producing and deciding upon relevant documents) in respect of my request for documents? And how can it possibly be that the APSC’s Director, Integrity’s decision to affirm a decision to impose a charge for processing documents (when apparently there are none) complies with the legal obligations imposed on the APSC’s Director, Integrity by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), and 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999? If, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, then the APSC’s Director, Integrity’s decision to affirm the charge must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

[12] In March 2018, the APSC’s General Counsel, in recognition of the public interest in the documents the subject of my request, entered into a binding agreement on behalf of the APSC, with the OAIC and myself, to waive any charges in relation to my request.

[13] On 1 May 2018, the APSC’s General Counsel wrote to me stating “It has been determined following assessment of the documents [that fall within the scope of my request] that it is necessary for the Commission to conduct formal consultation with affected third parties as required by sections 27 and or 27A of the FOI Act.”

[14] But if, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, why did the APSC’s General Counsel indicate to me that she had identified documents falling within the scope of my request and that she had to consult with third parties identified in those documents? And if, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, did the APSC’s General Counsel really consult with any third parties, and if so, who? If, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, then how can it possibly be that the APSC’s General Counsel’s decision to consult with third parties apparently identified in documents that xxxxx xxxxxxxxxxx contends don’t exist, complies with the legal obligations imposed on the APSC’s General Counsel by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999, and section 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (regarding dishonest and disreputable conduct)? If, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, then the APSC’s General Counsel’s decision to consult with third parties apparently identified in documents identified as falling within the scope of my request, must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

[15] On 17 May 2018, the APSC’s General Counsel wrote to me stating that: “The decision maker is currently assessing the documents relevant to your request and has determined that there are a number of duplicate documents. As such, are you agreeable for duplicates to be removed from the scope of the request? In addition there are a number of draft versions of the documents titled Examples of 'soft' arrangements in Commonwealth Enterprise agreements. To limit the number of pages and number of documents you receive, are you agreeable to being provided with the final version of those documents, or do you require all draft versions of those documents?”

[16] But if, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, why did the APSC’s General Counsel indicate to me that not only had she identified documents “relevant to [my] request”, but that there were draft and duplicate versions of documents that fell within the scope of my request? And if, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, then how can the APSC’s General Counsel’s act of notifying me to indicate that she had identified documents “relevant to [my] request” (and that there were duplicate and draft versions of those documents) be reconciled with the legal obligations imposed on her by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999, and section 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (regarding dishonest and disreputable conduct)? If, as xxxxx xxxxxxxxxxx asserts, there are no relevant documents, then the APSC’s General Counsel’s statements indicating that she had identified documents “relevant to [my] request” and that there were draft and duplicate versions of documents that fell within the scope of my request, must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

For the reasons set out above, I contend that xxxxx xxxxxxxxxxx’s decision of 7 June 2018, to refuse access to the documents the subject of my request was improperly, dishonestly and unethically made.

-----Original Message-----

UNCLASSIFIED
Good afternoon ‘Fliccy’

Please find attached correspondence relevant to your FOI request lodged on 23 May 2018 as detailed below.

Regards

FOI Coordinator
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
E: [email address]

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