Business case for the Points Based Activation System
Justin Warren made this Freedom of Information request to Department of Employment and Workplace Relations
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Department of Education, Skills and Employment,
If possible, please treat this as an informal or administrative request. Otherwise, please treat this as a formal request for documents under the Freedom of Information Act 1982.
I request copies of the following:
- The business case document(s) (or equivalent) for the Points Based Activation System (https://www.dese.gov.au/new-employment-s...), including any attachments. I request only the final version of the document(s) that were submitted for approval of the proposal.
- Documents constituting a risk register or equivalent documentation describing the risks from the proposal, risk ratings, proposed treatments and mitigations, etc. Where multiple versions of such documents exist (such as drafts) I only request two versions (if they are different):
1. the version current when the proposal was submitted for approval, and
2. the version current on 27 May 2022 at 9am Australia/Melbourne time.
- Documents, including emails, containing the submission of the proposal for consideration and approval.
- Meeting minutes or equivalent that document approval of the proposal.
I request that all documents be provided in electronic form.
I further request that all charges in relation to this request be waived on public interest grounds. The scope and scale of employment support services affects a large proportion of the Australian populace at any one time. The efficient and effective use of public resources to provide employment support services is a matter that should be open to public scrutiny, discussion, command, and review.
Release of these documents will help to reassure the Australian public that the system will not end up being a repeat of the #robodebt debacle. Release will also promote effective oversight of public expenditure by reassuring the public that the process for approving the initiative was conducted with appropriate rigour and diligence.
Yours faithfully,
Justin Warren
You have contacted the Freedom of Information Team at the Commonwealth
Department of Education, Skills and Employment (the department). If your
email relates to an Freedom of Information (FOI) application made under
the Freedom of Information Act 1982 (Cth) (FOI Act), the department will
respond as soon as possible.
This email address is only for applications for access to documents under
the FOI Act. The department is unable to respond to non-FOI related
enquiries sent to this email address, and accordingly, emails sent to this
email address that are not FOI related will not be responded to or
forwarded. If you have a non-FOI related enquiry for the department, you
can contact the department by using the online enquiry forms at
[1]https://www.dese.gov.au/about-us/contact...
or
[2]https://www.dese.gov.au/about-us/contact....
Regards,
Freedom of Information Team
Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/about-us/contact...
2. https://www.dese.gov.au/about-us/contact...
Dear Justin
I refer to your request, received by the Department of Education, Skills
and Employment (department) on 28 May 2022, for access under the Freedom
of Information Act 1982 (FOI Act) to the following:
- The business case document(s) (or equivalent) for the Points Based Activation
System
([1]https://www.dese.gov.au/new-employment-s...),
including any attachments. I request only the final version of the document(s)
that were submitted for approval of the proposal.
- Documents constituting a risk register or equivalent documentation describing
the risks from the proposal, risk ratings, proposed treatments and mitigations,
etc. Where multiple versions of such documents exist (such as drafts) I only
request two versions (if they are different):
1. the version current when the proposal was submitted for approval, and 2. the
version current on 27 May 2022 at 9am Australia/Melbourne time.
- Documents, including emails, containing the submission of the proposal for
consideration and approval.
- Meeting minutes or equivalent that document approval of the proposal.
Your request was received by the department on 28 May 2022 and the 30 day
statutory period for processing your request commenced from the day after
that date. The period of 30 days may be extended if we need to consult
third parties or for other reasons permitted under the FOI Act. We will
advise you if this happens.
Interpretation of request
The department has understood your request to be for:
o “The business case document(s) (or equivalent) for the Points Based
Activation System
([2]https://www.dese.gov.au/new-employment-s...),
including any attachments. I request only the final version of the
document(s) that were submitted for approval of the proposal”. We have
interpreted this as referring to the final version of the document(s),
including any attachments, that the department submitted for the final
approval of the Points Based Activation System as part of the New
Employment Services Model.
o “Documents constituting a risk register or equivalent documentation
describing the risks from the proposal, risk ratings, proposed
treatments and mitigations, etc. Where multiple versions of such
documents exist (such as drafts) I only request two versions (if they
are different): the version current when the proposal was submitted
for approval, and 2. the version current on 27 May 2022 at 9am
Australia/Melbourne time”.
o “Documents, including emails, containing the submission of the
proposal for consideration and approval”. We have interpreted this as
referring to documents, including emails, containing the submission of
the final proposal for approval of the Points Based Activation System
as part of the New Employment Services Model.
o “Meeting minutes or equivalent that document approval of the
proposal”. We have interpreted this as referring to meeting minutes
(or equivalent documents) that document the approval of the
department’s final proposal to proceed with the Points Based
Activation System as part of the New Employment Services Model.
If we have misinterpreted your request, please let us know by 14 June
2022. If we do not hear otherwise from you by that date, we will proceed
on the basis that we have correctly interpreted your request.
Charges
The department will advise you if a charge is payable to process your
request and the amount of any such charge as soon as practicable. No
charge is payable for providing a person with their own personal
information.
Your address
The FOI Act requires that you provide us with an address that we can send
notices to. You have advised your electronic address is
[3][FOI #8955 email]. Unless you tell us
otherwise, we will send all notices and correspondence to this address.
Disclosure log
Information released under the FOI Act may be published on a disclosure
log on our website, subject to certain exceptions. These exceptions
include where publication of personal, business, professional or
commercial information would be unreasonable.
Exclusion of employee details
To the extent the department has documents in its possession that fall
within the scope of your request, we will treat the names, signatures,
position titles, staff identification numbers and direct contact details
of Commonwealth employees as irrelevant in accordance with section 22 of
the FOI Act, unless you tell us otherwise by 14 June 2022.
Further assistance
If you have any questions about your request, please email
[4][email address].
Yours sincerely
Freedom of Information Team
Australian Government Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/new-employment-s...
2. https://www.dese.gov.au/new-employment-s...
3. mailto:[FOI #8955 email]
4. mailto:[email address]
Dear DESE - FOI,
This is not a valid consultation notice.
s 24AB(2)(c) requires that the name of the contact person is provided for the purposes of consultation or the notice does not satisfy the requirements of s 24AB(2) of the FOI Act (see: Justin Warren and Department of Human Services [2019] AICmr 22).
It is perplexing that the department is seemingly unable to comprehend this most basic and well-travelled portion of the FOI Act. Until I receive further evidence, I shall choose to believe that it is an attempt at levity by an otherwise competent and well-trained member of the FOI staff rather than an indication of incompetence or reflexive secrecy. While I do enjoy a joke, I have heard this one rather too many times and no longer find it as amusing as I once did, alas.
I do not accept that employee details are irrelevant to my request. I direct your attention to the FOI Guidelines at [3.54] which relevantly provides:
"There have been instances of agencies using s 22 to delete the names of government officials below the Senior Executive Service (SES) rank on the basis that those names are irrelevant to the scope of an FOI request. There is no apparent logical basis for treating the names of SES officials as being within the scope of a request, but other officials as being irrelevant to the request. Without further explanation as to why the names of government officials are irrelevant to the scope of an applicant’s request, it is unlikely that the application of s 22 is appropriately justified."
If the department wishes to claim that disclosure of employee details are exempt from disclosure, it bears the onus of proof that such an exemption is justified.
The scope you have identified appears to be accurate based on the information that is publicly available about what the PBAS program is called.
Yours sincerely,
Justin Warren
You have contacted the Freedom of Information Team at the Commonwealth
Department of Education, Skills and Employment (the department). If your
email relates to an Freedom of Information (FOI) application made under
the Freedom of Information Act 1982 (Cth) (FOI Act), the department will
respond as soon as possible.
This email address is only for applications for access to documents under
the FOI Act. The department is unable to respond to non-FOI related
enquiries sent to this email address, and accordingly, emails sent to this
email address that are not FOI related will not be responded to or
forwarded. If you have a non-FOI related enquiry for the department, you
can contact the department by using the online enquiry forms at
[1]https://www.dese.gov.au/about-us/contact...
or
[2]https://www.dese.gov.au/about-us/contact....
Regards,
Freedom of Information Team
Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/about-us/contact...
2. https://www.dese.gov.au/about-us/contact...
Dear Justin Warren
Please see the attached correspondence in relation to your FOI request.
Yours sincerely
Damon
Freedom of Information Team
Australian Government Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Dear DESE - FOI,
I have already requested that all charges in relation to this request be waived on public interest grounds. The scope and scale of employment support services affects a large proportion of the Australian populace at any one time. The efficient and effective use of public resources to provide employment support services is a matter that should be open to public scrutiny, discussion, comment, and review.
Access to the business case justifying the PBAS system is clearly in the general public interest. The issue has received substantial coverage in the national media, including:
- https://www.abc.net.au/news/2022-06-09/w...
- https://www.abc.net.au/news/2022-06-10/c...
- https://www.abc.net.au/news/2022-06-19/f...
The program will also affect a substantial section of the public, and it is therefore in their interest that they are able to scrutinise, discuss, comment, and review the business case used to justify the system that will directly affect them.
In order to keep things moving, I am willing to pay the deposit so that processing of my request can continue while the decision to impose a charge is reviewed (see, e.g.: Justin Warren and Department of Human Services (Freedom of information) [2018] AICmr 16, https://www.austlii.edu.au/cgi-bin/viewd...). However, I am uncomfortable with the department's data handling practices that require a scanned document containing my credit card information to be stored in their email system as well as any intervening email systems that process the message.
It is disappointing that in the year 2022 the department does not have an online payment system in place for such charges, as many other government departments do. Indeed, even Services Australia managed to stop asking people for posted money orders and moved to an online payments system some years ago.
In 'ND' and Department of Human Services (Freedom of information) [2017] AICmr 119, then Australian Information Commissioner, Timothy Pilgrim, found, at [25]:
"Where a charge is justified, it would be in keeping with the objects of the FOI Act to ensure that the method of payment should also facilitate prompt access to the documents."
I will contact you separately to provide a secure document sharing link to a completed form that doesn't place my personal information at quite so substantial risk of a data breach.
Yours sincerely,
Justin Warren
You have contacted the Freedom of Information Team at the Commonwealth
Department of Education, Skills and Employment (the department). If your
email relates to an Freedom of Information (FOI) application made under
the Freedom of Information Act 1982 (Cth) (FOI Act), the department will
respond as soon as possible.
This email address is only for applications for access to documents under
the FOI Act. The department is unable to respond to non-FOI related
enquiries sent to this email address, and accordingly, emails sent to this
email address that are not FOI related will not be responded to or
forwarded. If you have a non-FOI related enquiry for the department, you
can contact the department by using the online enquiry forms at
[1]https://www.dese.gov.au/about-us/contact...
or
[2]https://www.dese.gov.au/about-us/contact....
Regards,
Freedom of Information Team
Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/about-us/contact...
2. https://www.dese.gov.au/about-us/contact...
Dear Justin
Thank you for your email to the Department of Education, Skills and
Employment (the department) regarding your freedom of information (FOI)
request.
Review of preliminary assessment of charge
On 16 June 2022, the department advised you of the preliminary assessment
of the processing charge for your request.
In your email below, you note that you wish to seek internal review of the
department’s decision to impose a charge for your request. Further, in
your email of 28 May 2022 which contained the text of your FOI request
made to the department, you requested that all charges in relation to your
request be waived on public interest grounds.
As noted at paragraph 4.57 of the FOI Guidelines (Guidelines):
The preliminary assessment notice [of charge] is not itself a reviewable
decision. To contest the preliminary costs assessment an applicant must,
within 30 days, apply in writing to the agency or minister for the change
to be corrected, reduced or not imposed ((s 29(1)(f)(ii))…the agency or
minister must consider the applicant’s views and notify the applicant
about its final decision on the amount of charge payable within 30 days
Further, paragraph 4.58 the Guidelines state:
if an agency decides not to exercise its discretion to reduce or not
impose a charge (an access refusal decision under s 53A(e) of the FOI
Act), the applicant may seek review of the decision (but only after
disputing a preliminary estimate of a charge issued under s 29(1) of the
FOI Act) by applying for…internal review by the agency or minister (s 54)
The department’s preliminary assessment of charge is not a reviewable
decision and is therefore not subject to internal review. However, given
that you have sought waiver of the charge for your request on public
interest grounds, we have taken your email below to be contesting the
department’s preliminary costs assessment of $370.00 in relation to your
request sent to you on 16 June 2022. As such, the department will send its
charge decision to you within the 30 day timeframe. If we do not hear
otherwise from you by COB 23 June 2022 the department will proceed on the
basis that you are contesting the department’s preliminary assessment to
impose a charge for your request in accordance with section 29(1)(f)(ii)
of the Freedom of Information Act 1982 (Cth) (FOI Act).
Payment of FOI charge/deposit
From your email below, it appears you intend to pay the charge deposit.
Rather than submitting a completed credit card authorisation form through
the Right to Know website, you can email the completed form to
[1][email address]. Alternatively, you can send a cheque or money order
made out to the Collector of Public Monies — Education, Skills and
Employment to:
Department of Education, Skills and Employment
GPO Box 9880
Canberra ACT 2601
Australia
Extension of time
In accordance with the FOI Act, the decision on your request is currently
due 11 days after the date you pay the deposit or charge for your request.
To date, the department has undertaken significant work in progressing
your request, including consultation with relevant departmental officers,
search and retrieval of documents, confirming the scope of your request
with you, examining each page captured by the scope of your request and
considering the exemptions (if any) applicable to the documents within
scope of your request. However, the department is required to consult
another Commonwealth Government agency about documents which concern it,
undertake further consultation with relevant departmental officers on
access and prepare a decision on access, which will, for example, involve
further review of the documents and the scheduling of these documents.
Further, key staff in the department relevant to your FOI request are
currently engaged in implementing major machinery of government changes
affecting the department that were announced recently.
Accordingly, if you elect to pay the processing charge or charge deposit,
we are seeking your agreement to a 30 day extension of time to process
your request in accordance with section 15AA of the FOI Act. However, we
will endeavour to provide you with a decision on your request as soon as
possible within the extended timeframe.
If you agree to an extension of time, we will notify the Office of the
Australian Information Commissioner (OAIC) of the extension in accordance
with section 15AA(b) of the FOI Act and will provide your contact details
to the OAIC. If you do not agree to the extension of time, we will seek an
extension directly from the OAIC in accordance with section 15AB of the
FOI Act.
We would appreciate your response to this request by COB 23 June 2022. If
we have not heard from you by this time, we will proceed with approaching
OAIC for an extension.
Please do not hesitate to contact us at [2][email address] if you have any
questions.
Yours sincerely
Freedom of Information Team
Department of Education, Skills and Employment
Dear DESE - FOI,
I'm not sure where you got the idea that I was requesting an internal review of the charge. I was, as you have surmised, contesting the charge in writing, as per the requirements of s 29(1)(f)(ii) of the FOI Act.
I am also proposing to pay the deposit, as per [4.10] of the FOI Guidelines which states, in part:
"An applicant may also object to the estimated charge and pay the deposit or full estimated charge to progress a decision on the FOI request while the charge is disputed."
Did you actually read my last correspondence regarding the payment methods the department is using and the information security risks of emailing people's credit card numbers around unencrypted? You may like to refer to PCI DSS v4.0 requirement 4 "Protect Cardholder Data with Strong Cryptography During Transmission Over Open, Public Networks". You may also like to reread the section about money orders in the 21st century and facilitating prompt access to documents.
I agree to the extension of time you have requested. However, I do not expect the full 30 days will be required.
Yours sincerely,
Justin Warren
You have contacted the Freedom of Information Team at the Commonwealth
Department of Education, Skills and Employment (the department). If your
email relates to an Freedom of Information (FOI) application made under
the Freedom of Information Act 1982 (Cth) (FOI Act), the department will
respond as soon as possible.
This email address is only for applications for access to documents under
the FOI Act. The department is unable to respond to non-FOI related
enquiries sent to this email address, and accordingly, emails sent to this
email address that are not FOI related will not be responded to or
forwarded. If you have a non-FOI related enquiry for the department, you
can contact the department by using the online enquiry forms at
[1]https://www.dese.gov.au/about-us/contact...
or
[2]https://www.dese.gov.au/about-us/contact....
Regards,
Freedom of Information Team
Department of Education, Skills and Employment
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/about-us/contact...
2. https://www.dese.gov.au/about-us/contact...
Dear Justin
I refer to your correspondence received by the Department of Education,
Skills and Employment on 28 May 2022, in which you requested access under
the Freedom of Information Act 1982 (FOI Act) to:
The business case document(s) (or equivalent) for the Points Based
Activation System
([1]https://www.dese.gov.au/new-employment-s...),
including any attachments.
Documents constituting a risk register or equivalent documentation
describing the risks from the proposal, risk ratings, proposed treatments
and mitigations, etc.
Section 16(1)(b) of the FOI Act provides:
(1) Where a request is made to an agency for access to a document and:
…
(b) the subject‑matter of the document is more closely connected with the
functions of another agency than with those of the agency to which the
request is made;
the agency to which the request is made may, with the agreement of the
other agency, transfer the request to the other agency.
Following recently announced machinery of government changes, as of 1 July
2022 the Department of Education, Skills and Employment has become the
Department of Education and the Skills and Employment portfolios have
shifted to the newly created Department of Employment and Workplace
Relations (DEWR).
The subject matter of your request is more closely connected with the
functions of DEWR. Accordingly, I am writing to inform you that your
request has been transferred to DEWR in accordance with section 16 of the
FOI Act. DEWR has agreed to accept the transfer and will contact you in
relation to this matter.
Should you have any further queries about this matter, please email
[2][email address].
Yours sincerely
Freedom of Information Team
Australian Government Department of Education
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.dese.gov.au/new-employment-s...
2. mailto:[email address]
Justin Warren left an annotation ()
I was charged the deposit fee on 4 July 2022.
This means the decision is due 11 + 30 days (extension) from that date, which I calculate as being 14 August 2022.
Dear Mr Warren
Please find attached correspondence in relation to your freedom of
information request.
Kind regards
Freedom of Information Team
Department of Employment and Workplace Relations
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Justin Warren left an annotation ()
The decision to charge is not well argued so I'll appeal it to OAIC. Still waiting for the actual documents.
Dear Mr Warren
I refer to your FOI request and attach a copy of the department’s
decision.
Yours sincerely
Claudia
Freedom of Information Team
Australian Government Department of Employment and Workplace Relation
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Justin Warren left an annotation ()
I'll do the payment dance again and get the rest of the docs in this form.
I still maintain that the charges should be waived in the public interest.
I will also be asking for internal review because the decision hasn't properly applied the FOI Act. And we'll probably end up at OAIC again, but ah well.
Dear Mr Warren
We refer to your FOI request concerning the Points Based Activation System
and the department’s recent decision dated 11 August 2022. Please now find
attached the remainder of the documents being released to you under the
Freedom of Information Act 1982.
On 19 July, the department notified you of its decision (attached) to
affirm the charges in full, however, in your email dated 14 August 2022,
you state that the charges should be waived on public interest grounds.
Could you please clarify whether you wish to seek an internal review of
the department’s decision to impose charges?
Yours sincerely
Claudia
Freedom of Information Team
Australian Government Department of Employment and Workplace Relations
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Dear Department of Employment and Workplace Relations,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Employment and Workplace Relations's decision to impose charges for processing my FOI request 'Business case for the Points Based Activation System'.
I believe the decision maker’s decision to affirm the preliminary charges is flawed and does not follow the requirements of the FOI Act or the relevant case law.
The decision accepts that “there is a broad public interest in the material within the scope of your request, including that the documents relate to a decision by the department that has been a topic of public interest or discussion, and disclosure of the documents would inform the public as to why or how the decision was made.”
I draw your attention to the FOI Guidelines at [4.100] which states, in part:
"If an agency or minister accepts that disclosure of a document will be in the general public interest or that there will be financial hardship to the applicant, it may be difficult for it to justify why a charge has been reduced instead of not imposed."
The decision maker then went on to conduct a balancing exercise, with the public interest on the one hand, and other “countervailing factors” on the other.
One factor identified was that some of the documents contain Cabinet-related material. The decision-maker did not cite s 34 of the FOI Act here, which provides an exception from disclosure due to the public interest in maintaining Cabinet confidentiality. It is not clear to me what the relevance is to the imposition of changes.
The decision maker then cited a second factor, namely the resource implications for the department in processing my request.
The FOI Guidelines relevantly state, at [4.20]:
"The overall impact of charges in recovering costs to government does not, of itself, justify imposing a charge for an individual request."
The decision maker stated that “Any reduction in the charge due to the public interest in the documents is mitigated by the resource implications for the department in making a decision on access in relation to the additional seven documents (totalling 103 pages).” This seems to suggest that the motivation for imposing a charge is recovering costs to government. No additional reasoning was provided by the decision maker as to why the imposition of the charge was appropriate.
I draw your attention to the FOI Guidelines from [4.109] to [4.113]. At [4.111] states:
"The AAT decision of MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) explains that an agency should compare the number of documents within the scope of an FOI request and the cost of processing against the subject matter of the request when deciding whether to exercise its discretion to waive a charge on public interest grounds."
In MacTiernan the charge assessed was $2,491.36, substantially more than both the $370 charge that has been affirmed, and the $513 processing charge that was alleged. My FOI request relates to a government program that is a key part of Workforce Australia (previously called the New Employment Services Model). While I am unable to find budget figures specific to the PBAS program, p78 of the Portfolio Budget Statements 2022–23 Budget Related Paper No. 1.4 states that the administered expenses for 2022-23 for Workforce Australia is over $1.3 billion.
I put it to you that the assessed charges are a pittance compared to the cost of the PBAS program and the impact on the budget if it is not well managed.
Given the agreed public interest in the document requested, and the tiny cost of providing access to them, I suggest that any justification for why the charges should not be waived on public interest grounds had better be phenomenally good. Otherwise it may appear that the decision maker has either not engaged with the materials with appropriate skill and diligence, or is deliberately using charges to discourage access to information, contrary to the objects of the FOI Act. That would be most unfortunate.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/b...
Yours faithfully,
Justin Warren
Dear Department of Employment and Workplace Relations,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Employment and Workplace Relations' decision in my FOI request 'Business case for the Points Based Activation System'. This request for internal review is separate from my request to review the charges decision. It deals with the substance of the decision to release information or not.
Dates of documents
I note that the document date is missing from the Schedule of Documents for documents 5 and 6.
It also appears that document 5 in fact consists of multiple documents: a ministerial submission, correspondence to the Prime Minister, and 3 attachments. Each of these documents should be considered separately.
It is surprising that document 6, in particular, remains undated given that it was allegedly a New Policy Proposal that was submitted to Cabinet. Similarly, it seems unusual that the date of creation of a Ministerial submission (document 5) or correspondence to the Prime Minister (also document 5 somehow) would be unknown. The date of a document’s creation and when it was submitted to Cabinet are important facts, particular given the department’s use of s 34 to claim information is exempt from disclosure.
Missing documents
I asked for two versions of the Risk Management Plan:
1. the version current when the proposal was submitted for approval, and
2. the version current on 27 May 2022 at 9am Australia/Melbourne time.
Only a single document, document 4 “New Employment Services Trial Risk Management Plan 2019-2022” was found, dated 28 June 2021 in the Schedule of Documents, yet the document itself appears to have been created some time before 31/07/2020 which is listed as the Next Review Date on page 1 of document 4.
Please clarify if no other versions of this document exist. It would be surprising to learn that a document that had not been updated since some time before 31 July 2020 was still the most current risk management plan on 27 May 2022.
s 22
The decision maker has used s 22 to “delete exempt material” from a number of documents. However, the schedule of documents, and the edited documents themselves, specifically refer to s 22(1)(a)(ii) which is a claim that “to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access”.
The decision maker provides no explanation as to why the information that has been deleted would reasonably be regarded as irrelevant to the request for access.
In document 4, these redactions appear to be parts of the Treatments sections for various risks. Given that my request specifically asked for “Documents constituting a risk register or equivalent documentation describing the risks from the proposal, risk ratings, proposed treatments and mitigations, etc.” it is not clear on what basis the decision maker believes it was reasonable to assume that I would regard this information as irrelevant. Indeed, I do not.
In documents 13-17 (Employment Steering Committee meeting minutes (ESC minutes)) it seems that some redactions may be for agenda items unrelated to the PBAS program that is the subject of my request and may be reasonable. However, I note that the majority of the content of item 6 titled “PBAS – labour marker credits [in Fortress]” in the ESC minutes dated 5 August 2021 have been redacted under s 22(1)(a)(ii). Given the title of this item, it is difficult to see how this information would reasonably be regarded as irrelevant to my request for access.
s 22(1)(d) states that “it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.”
If the agency wishes to use s 22 to claim that some information is irrelevant to my request, it should consult with me to confirm that its assumptions are correct. To date, the agency has been extremely wrong in its beliefs about what I consider to be irrelevant. It should also clearly identify the basis on which each s 22 redaction has been made, either by further annotating each redaction or providing a more fulsome explanation in the Schedule of Documents for each type of redaction.
s 47C exemptions
I find it difficult to accept that information in a risk management plan can be considered deliberative material. The purpose of a risk management plan is to state facts and the outcome of deliberations. The FOI Guidelines at [6.66] helpfully notes that “the decision or conclusion reached at the end of the deliberative process” is not deliberative matter.
The onus is on the department to justify why disclosure would be contrary to the public interest. Its attempts to do so are glib and superficial, and provide no detail as to why any harm to the public interest would occur in the circumstances specific to this case.
The department claims that some of the s 47C conditionally exempt material “is closely connected to the Cabinet submission”. The FOI Act specifically provides for exempting material related to Cabinet submissions under s 34. If the material is not covered by s 34 it is difficult to see how the public interest will be harmed by its disclosure.
The “frankness and candour” argument against disclosure has been dealt with on numerous occasions in the case law and is specifically referred to in the FOI Guidelines at [6.79]-[6.85]. The decision maker provides no evidence that lessening of frank and candid advice would occur.
The purpose of a risk management plan is to ensure that the department has appropriately identified and mitigated risks and vulnerabilities that could be deliberately exploited. If it has failed to do so, it is in the public interest that this is revealed so that we can identify why risks have not been identified or managed appropriately. This is very much in line with the objects of the FOI Act as described in s 3(2).
s 47E(d) exemptions
The purpose of a risk management plan is to ensure that the department has appropriately identified and mitigated risks and vulnerabilities that could be deliberately exploited. If it has failed to do so, it is in the public interest that this is revealed so that we can identify why risks have not been identified or managed appropriately. This is very much in line with the objects of the FOI Act as described in s 3(2).
If the department is aware of certain risks identified in the risk management plan, dated 28 June 2021, that are still substantial enough in August of 2022 to be vulnerable to targeted exploitation, this raises questions about the department’s competence at managing such risks. It is in the public interest to know how vulnerable important government systems may be so that we can ensure that appropriate resources and attention are brought to bear to fix the situation.
Regarding the names and contact details of departmental employees, the FOI Guidelines helpfully provide at [6.153]:
“Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties.”
Also, at [6.101] the FOI Guidelines explain: “For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably expected to occur. […]There must be more than merely an assumption or allegation that damage may occur if the document were to be released.”
Reasonably expected means that “[t]here must be ‘real’ and ‘substantial’ grounds for expecting the damage to occur which can be supported by evidence or reasoning. A mere allegation or possibility of damage is insufficient to meet the ‘reasonable expectation’ test.” (FOI Guidelines at [5.27])
The decision maker has failed to meet the required evidentiary threshold for s 47E(d) to apply.
s 34 exemptions
s 34(4) states:
“A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.”
Please review the decision to use s 34 to exempt attachments, paying particular attention to s 34(4) and s 34(6) of the FOI Act.
s 34(2) exemptions
The decision maker appears to have incorrectly applied s 34(2) to exempt material in documents 5 and 7-11.
The decision states: “The material in question consists of extracts of documents which were submitted to the Cabinet for its consideration.”
s 34(2) states: “A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.”
Please confirm that the material in question is extracts of documents to which s 34(1) applies, as distinct from extracts of documents that were submitted to Cabinet. Documents are not exempt merely because they have been submitted to Cabinet, nor is an extract of such documents.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/b...
Yours faithfully,
Justin Warren
Dear Mr Warren
The department acknowledges receipt of your email dated 19 August 2022
seeking internal review of the charges decision relating to your FOI
request.
Yours sincerely
Freedom of Information Team
Australian Government Department of Employment and Workplace Relations
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Dear Mr Warren
The department acknowledges receipt of your email dated 20 August 2022
seeking internal review of the department’s decision relating to your FOI
request.
Yours sincerely
Freedom of Information Team
Australian Government Department of Employment and Workplace Relations
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Dear Mr Warren
Please find attached correspondence from the Department of Employment and Workplace Relations regarding your below request for internal review.
Yours sincerely
Freedom of Information Team
Australian Government Department of Employment and Workplace Relations
Dear Mr Warren
Please find attached correspondence from the Department of Employment and Workplace Relations regarding your below request for internal review.
Yours sincerely
Freedom of Information Team
Australian Government Department of Employment and Workplace Relations
Justin Warren left an annotation ()
I emailed DESE with a link to a completed credit card charge form. I'll disable the link once they've got it, or after 7 days at the most.
I almost can't believe they're requiring people to email them a PDF with credit card details including CVV here in 2022 but welcome to government IT I guess.