Dear Australian Energy Regulator,

Can I please have a copy of the current FOI Delegations, and any related directions issued in respect of FOI.

I believe this information could be considered "operational information" so I therefore request release under the IPS, or under Administrative Access. If not consider this an application under FOI.

Yours faithfully,

JS

Dear FOI,

Thank you for your letter and for explaining that FOI arrangements are via an instrument of authorisation rather than delegation. At this stage it seems a person authorised by the AER under section 23 of the FOI Act has not responded to the FOI application. The FOI application was to the AER and I seek clarification on whether the AER has possession of documents in its own right.

The ACCC Chairperson makes available ACCC staff and consultants to assist the AER to perform its (AER) functions. The OAIC Guidelines provide:

2.31 A ‘document of an agency’ is defined in s 4(1) as:
• a document in the agency’s possession, whether created or received in the agency, or
• a document in relation to which an agency has taken contractual measures under s 6C in order to ensure that it receives the document from a contractor or sub-contractor providing services to the public on the agency’s behalf (see [2.33]–[2.37] below)

2.32 ‘Possession’ of a document is not limited to actual or physical possession, but can include constructive possession where an agency has the right and power to deal with a document, regardless of where and by whom it is stored. .....................................

As you state, FOI decisions are required, under s23 of the FOI Act, to be made by the principal officer of an agency or by an officer in accordance with arrangements authorised by the principal officer. Clearly the ACCC has the right and power to deal with all records held within the records of the ACCC including documents pertaining to the AER and the National Competition Council. The principal officer of the ACCC has authorised persons under S23 as detailed in the document you released and the ACCC is in a position to respond to FOI applications made to it.

The AER is an agency subject to the FOI Act - it says so itself or at least that assertion is made in a number of publications. It seems the AER has not issued an instrument of authorisation under section 23. There is nothing on the AER and ACCC websites that explains how the AER meets its FOI obligations to respond to applications made to it or how the ACCC authorisation fulfils the AER’s FOI obligations.

In the absence of a clear explanation I may well assume the AER is not meeting its FOI obligations.

Rind regards

JS

Dear FOI,

The ACCC states that ‘the AER is a separate legal entity, it does not hold separate records in its own right and is staffed by the ACCC. Therefore, FOI requests for AER documents are processed by ACCC’s FOI section.’

If it be the case that the AER does not hold separate records in its own right (that is, the AER is not in possession of documents for the purposes of the FOI Act) then that fact is not disclosed in any of the documents published by the ACCC or the AER. It is not disclosed on any of the ACCC or AER websites. It is disclosed only after an FOI application is made to the AER but responded to by the ACCC.

It is not disclosed on or in any ACCC or AER website or document that the AER does not respond to FOI applications received by the AER despite it being an agency subject to the FOI Act. It is not disclosed that FOI applications to the AER are passed on to the ACCC and reclassified by the ACCCC as FOI applications to the ACCC.

Yours sincerely,

JS