Dear Federal Court of Australia,

In 2023, the Federal Court of Australia sought the services of CPM Reviews Pty Ltd in respect of human resources management issues.

"CPM Reviews specialises in conducting workplace investigations" and provides "professional and independent reviews of workplace behaviour, administrative actions and employment decisions for the public sector at all levels of government and for other organisations, including universities and private sector organisations": https://cpmreviews.com.au/index.html

I am interested in three files associated with the services that the Federal Court sought from CPM Reviews. These files contain documents of the Federal Court of Australia in relation to the services that the Federal Court sought from CPM Reviews.

Under the Freedom of Information Act 1982 (Cth), I request access to:

a) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0130; and

b) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0137; and

c) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0138.

Please provide the requested documents by return email.

Yours faithfully,

FOIBLES

Dear B Henderson,

Please pass this to the person who conducts Freedom of Information reviews.

I disagree with your conclusion that it is not in the public interest to grant access to any one of the requested documents, and request internal review of your handling of my FOI request 'Access to files PA-2023-0137 and PA-2023-0138'.

Ultimately, the FOI Commissioner may have to decide if the blanket appeal to conditional exemptions and refusal to grant access to documents, supposedly on the ground that disclosure is against the public interest, are justified.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...

Yours faithfully,

FOIBLES

Dear Federal Court of Australia,

Internal review request submitted - https://www.righttoknow.org.au/request/a...

Yours faithfully,

FOIBLES

Dear External FOI,

I am somewhat concerned that it has taken somebody at the Federal Court almost a month since Ms Yuvaraj contacted us to establish contact with me to resolve or narrow the issues in dispute.

Like you, I work during business hours so it is impractical for me to engage in a telephone or video conference. I am best able to communicate during my personal time, which is late at night, after work, or on weekends.

Pursuant to paragraph 3.10 of the Directions as to certain procedures to be followed by agencies and ministers in IC reviews, i am notifying you that my preferred mode of communication is email (via this website).

I look forward to receiving your proposals on resolving the issues in dispute (or at least narrowing them down).

To get the ball rolling, I think that the best way to re-establish goodwill is for the Federal Court to grant access to those classes of documents that it realistically will not be able to maintain exemptions over. For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.

Yours sincerely,

FOIBLES

Dear External FOI,

I am prepared to remove the draft and preliminary investigation reports from the scope of my request. I am also prepared to remove the voice recording referred to in B Henderson's decision. Everything else remains in scope at this stage.

I may consider further limiting the scope of the materials but that is likely to depend on the way this consultation progresses and whether the blanket refusal adopted by R Muscat is reconsidered. As I have noted in my IC review application, the blanket refusal, which has been applied without providing adequate reasons, strikes me as unjustifiable.

Yours sincerely,

FOIBLES

MR24/00737

ATTN: FOIDR

To whom it may concern,

I received Mr Rohan Muscat’s submissions in relation to MR24/00737 on 4 September 2024. They are needlessly lengthy. I do not intend to detain the readers of these submissions with prolixity.

Consultation process

Ms Yuvaraj sent a notice to the Court and me on 24 July 2024 in which she requested that the Court consult with me to narrow the scope of issues. The Court first contacted me on 20 August 2024, almost a month after receiving Ms Yuvaraj’s notice (https://www.righttoknow.org.au/request/a...). There was not much by way of consultation on the part of the Court.

Issues

My application for IC review arises from the fact that I am sceptical that every single document in scope (248 documents originally) is exempted from release. That scepticism is justified.

At paragraphs 68 – 69 of his submissions (https://www.righttoknow.org.au/request/1...), Mr Muscat states:

“The only contention made by the applicant in the present IC review is that at least some
of the information in the documents at issue should be released. The applicant provides
no material in support of this contention. The applicant appears to make this contention on the assumption that the quantity of documents found from the searches conducted
means that something should be provided to them, stating:

I find it hard to believe that there are 248 documents within scope (see original decision of B
Henderson) and not a single document has been released because conditional exemptions apply to
each and every document and all aspects of the documents in scope.

The Court rejects the applicant’s contentions in full. The Court seeks to rely upon the
reasons given in its original FOI decision dated 15 March 2024 (Attachment 4) and
internal review decision dated 15 April 2024 (Attachment 7) in addition to making the
following submissions.”

My scepticism is not informed by the number of documents in scope. That is a misrepresentation. Mr Muscat appears to have given no regard to what I noted during the consultation process. On 22 August 2024 (https://www.righttoknow.org.au/request/a...), I noted:

“For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.”

Clearly, what PARTLY informs my scepticism is the nature of the documents in issue, but that has been conveniently ignored by Mr Muscat.

Mr Muscat is also under a misapprehension about the legal requirements associated with an IC review, particularly on the issue of onus of proof.

Subsection 55D(1) of the FOI Act provides that “in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that:

 (a) a decision given in respect of the request or application is justified; or
 (b) the Information Commissioner should give a decision adverse to the IC review applicant.”

I am entitled to apply for IC review. I have a right to access documents, subject to the law. I have no onus of proving my case for access to documents. Rohan Muscat’s submissions suggesting that I should “provide materials in support of this contention” is contradicted by the law. The onus to justify the internal review decision rests squarely and exclusively with the Court. Mr Muscat’s submissions in that regard should be dismissed as misconceived.

The Federal Court has the onus of establishing that Rohan Muscat’s internal review decision of 15 April 2024 is justified, and the internal review decision is clearly not justified.

On 30 August 2024 (https://www.righttoknow.org.au/request/a...), an unnamed FOI officer wrote to me and released a document to me in full. The document was one of the documents within scope (https://www.righttoknow.org.au/request/1...).

If Rohan Muscat’s internal review decision of 15 April 2024 was correct, then the document released on 30 August 2024 would not have been released. That released document would be exempt in full instead of being released in full. Thus, I am justified in my scepticism.

The language in Rohan Muscat’s submission is an uncompromising as the language in his internal review decision of 15 April 2024.

How should I know if the submissions are correct? Austlii is replete with decisions made by the Information Commissioner or the FOI Commissioner in which one or other commissioner has found that, notwithstanding the unyielding claims of FOI officers in Commonwealth agencies, documents withheld by an agency should be released. What’s to say that there are no other documents that, upon an objective assessment, would not be released under the FOI Act? As I noted on 22 August 2024, there are classes of documents that are just so unlikely to be exempt in full that, upon assessment according to law, they will, either partly or in full, be released under the FOI Act.

At root, this all boils down to trust. For the reasons outlined, I was justified in receiving Mr Muscat’s internal review reasons with scepticism, and am justified in my scepticism of his submissions. I do not know what will be released under the FOI Act because I do not have access to the materials I am requesting, but I am quite certain, in the light of decisions that have been made in the past by FOI and Information Commissioner, as well as some of the classes of documents within scope, that there will be other documents released if and when the documents in scope are reassessed by an arms-length decision maker.

Finally, I note that, for all its length, Rohan Muscat's submissions do not adequately address how and why the claimed conditional exemptions apply to the documents requested. Rather, Mr Muscat's submissions on the matter are vague, lacking in particularity and merely address types/classes of documents in passing (with most of the submissions merely rehearsing authorities). Rehearsing authorities without adequately addressing how those authorities apply to the instant documents is unhelpful and frustrating.

Yours sincerely,

FOIBLES

Dear Mr Muscat,

Please find my submissions set out here: https://www.righttoknow.org.au/request/a...

I have also reproduced them below for your convenience.

______________________________________________________________

MR24/00737

I received Mr Rohan Muscat’s submissions in relation to MR24/00737 on 4 September 2024. They are needlessly lengthy. I do not intend to detain the readers of these submissions with prolixity.

Consultation process

Ms Yuvaraj sent a notice to the Court and me on 24 July 2024 in which she requested that the Court consult with me to narrow the scope of issues. The Court first contacted me on 20 August 2024, almost a month after receiving Ms Yuvaraj’s notice (https://www.righttoknow.org.au/request/a...). There was not much by way of consultation on the part of the Court.

Issues

My application for IC review arises from the fact that I am sceptical that every single document in scope (248 documents originally) is exempted from release. That scepticism is justified.

At paragraphs 68 – 69 of his submissions (https://www.righttoknow.org.au/request/1...), Mr Muscat states:

“The only contention made by the applicant in the present IC review is that at least some
of the information in the documents at issue should be released. The applicant provides
no material in support of this contention. The applicant appears to make this contention on the assumption that the quantity of documents found from the searches conducted
means that something should be provided to them, stating:

I find it hard to believe that there are 248 documents within scope (see original decision of B
Henderson) and not a single document has been released because conditional exemptions apply to
each and every document and all aspects of the documents in scope.

The Court rejects the applicant’s contentions in full. The Court seeks to rely upon the
reasons given in its original FOI decision dated 15 March 2024 (Attachment 4) and
internal review decision dated 15 April 2024 (Attachment 7) in addition to making the
following submissions.”

My scepticism is not informed by the number of documents in scope. That is a misrepresentation. Mr Muscat appears to have given no regard to what I noted during the consultation process. On 22 August 2024 (https://www.righttoknow.org.au/request/a...), I noted:

“For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.”

Clearly, what PARTLY informs my scepticism is the nature of the documents in issue, but that has been conveniently ignored by Mr Muscat.

Mr Muscat is also under a misapprehension about the legal requirements associated with an IC review, particularly on the issue of onus of proof.

Subsection 55D(1) of the FOI Act provides that “in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that:

(a) a decision given in respect of the request or application is justified; or
(b) the Information Commissioner should give a decision adverse to the IC review applicant.”

I am entitled to apply for IC review. I have a right to access documents, subject to the law. I have no onus of proving my case for access to documents. Rohan Muscat’s submissions suggesting that I should “provide materials in support of this contention” is contradicted by the law. The onus to justify the internal review decision rests squarely and exclusively with the Court. Mr Muscat’s submissions in that regard should be dismissed as misconceived.

The Federal Court has the onus of establishing that Rohan Muscat’s internal review decision of 15 April 2024 is justified, and the internal review decision is clearly not justified.

On 30 August 2024 (https://www.righttoknow.org.au/request/a...), an unnamed FOI officer wrote to me and released a document to me in full. The document was one of the documents within scope (https://www.righttoknow.org.au/request/1...).

If Rohan Muscat’s internal review decision of 15 April 2024 was correct, then the document released on 30 August 2024 would not have been released. That released document would be exempt in full instead of being released in full. Thus, I am justified in my scepticism.

The language in Rohan Muscat’s submission is an uncompromising as the language in his internal review decision of 15 April 2024.

How should I know if the submissions are correct? Austlii is replete with decisions made by the Information Commissioner or the FOI Commissioner in which one or other commissioner has found that, notwithstanding the unyielding claims of FOI officers in Commonwealth agencies, documents withheld by an agency should be released. What’s to say that there are no other documents that, upon an objective assessment, would not be released under the FOI Act? As I noted on 22 August 2024, there are classes of documents that are just so unlikely to be exempt in full that, upon assessment according to law, they will, either partly or in full, be released under the FOI Act.

At root, this all boils down to trust. For the reasons outlined, I was justified in receiving Mr Muscat’s internal review reasons with scepticism, and am justified in my scepticism of his submissions. I do not know what will be released under the FOI Act because I do not have access to the materials I am requesting, but I am quite certain, in the light of decisions that have been made in the past by FOI and Information Commissioner, as well as some of the classes of documents within scope, that there will be other documents released if and when the documents in scope are reassessed by an arms-length decision maker.

Finally, I note that, for all its length, Rohan Muscat's submissions do not adequately address how and why the claimed conditional exemptions apply to the documents requested. Rather, Mr Muscat's submissions on the matter are vague, lacking in particularity and merely address types/classes of documents in passing (with most of the submissions merely rehearsing authorities). Rehearsing authorities without adequately addressing how those authorities apply to the instant documents is unhelpful and frustrating.

Yours sincerely,

FOIBLES