Dear Australian Building and Construction Commission,

On 18 May 2020 an authorised officer of the ABCC granted me access to five documents under FOI.

The ABCC is required by section 11C of the FOI Act to publish information in a disclosure log within 10 working days after the FOI Applicant was given access to a document. The disclosure log requirement does not apply to:
• personal information about any person if publication of that information would be 'unreasonable'
• information about the business, commercial, financial or professional affairs of any person if publication of that information would be 'unreasonable'
• other information covered by a determination made by the Australian Information Commissioner if publication of that information would be 'unreasonable'
• any information if it is not reasonably practicable to publish the information because of the extent of modifications that would need to be made to delete the information listed in the above dot points.

The release of the documents on 18 May 2020 by the ABCC is not reflected in its disclosure log.

Under FOI I seek access to the document that contains details of the decision not to publish information about the release in the ABCC disclosure log.

Yours faithfully,

JS

Dear ABCC - FOI,

Thank you for your email in which you invite me to withdraw the FOI request. I accept the invitation to withdraw.

The ABCC Commissioner has a responsibility to implement measures directed at ensuring that the ABCC with the law. Clearly any measures implemented are inadequate given the ABCC did not comply with its legal obligations. The failure is ongoing.

The ABCC asserts that its disclosure log:
(a) was not updated due to an oversight and
(b) was rectified immediately upon receipt of the email drawing the oversight to its attention.

To categorise an FOI request for a particular document as an email alerting the ABCC to an oversight about its legal obligations is creative. Are there more “oversights” waiting to be discovered ?

And to claim that the oversight was rectified immediately upon receipt of the email is breathtaking. As the ABCC confirms, documents were released on 18 May 2020. To date however there is no entry in the Disclosure log reflecting the release on that date. The entry in the Disclosure Log dated 17 April 2020 is not in accordance with the OAIC Guidelines or reality.

Yours sincerely,

JS

Dear ABCC - FOI,

The ABCC asserts in the Disclosure Log that the applicant was given access to documents on 17 April 2020. The RTK website establishes that the ABCC provided access on 18 May 2020.

OAIC Guidelines - Time of publication

14.22 Agencies and ministers must publish information in a disclosure log within ten working days after the FOI applicant was ‘given access’ to a document (s 11C(6)).

14.23 The date on which an FOI applicant is given access may be later than the date of the decision to grant access (see Part 3 of these Guidelines). Before giving access, an agency or minister can require that a charge be paid (s 11A(1)(b) and Charges Regulations reg 11(1)). The agency or minister must also be satisfied that all opportunities for review by third parties have run out and that the decision to grant access still stands or was confirmed (ss 26A(4), 26AA(4), 27(7) and 27A(6)).

14.24 The date on which an FOI applicant is given access may vary according to the method by which access is given. For example, it is probable that a document sent by email to an FOI applicant was received on the same day. If a document is instead sent by post it is presumed (unless the contrary is known) to have been received on the day it would be delivered in the ordinary course of post (Acts Interpretation Act 1901 s 29).

14.25 It is open to an agency or minister to publish information on a disclosure log earlier than the period of ten days stipulated in s 11C(6). Independently of the FOI Act an agency or minister may (subject to applicable secrecy provisions) publish information at any time and by any method. The FOI Act does not erode that discretion. It follows, accordingly, that an agency or minister may publish information that is to be provided to an FOI applicant on the same day that access is provided. This is consistent with the principle of equal public access rather than exclusive individual access, which is inherent in the disclosure log mechanism and the IPS.

14.26 It is for each agency and minister to decide, generally and in individual cases, the particular day (within the ten day period stipulated in s 11C(6)) on which information will be published on a disclosure log. The general practice of the agency or minister (if one has been adopted) should be made known publicly on the agency website and drawn to an FOI applicant’s attention.

As the ABCC Commissioner might say, the Federal Parliament passed a law .....

Yours sincerely,

JS