Dear Department of Veterans' Affairs,

I seek under FOI copy of the client satisfaction survey (https://www.dva.gov.au/consultation-and-... ) sample selection methodology (a survey it is claimed is carried out biannually).

According to DVA’s website the sample is allegedly chosen ‘randomly’, but previous media reporting (https://www.news.com.au/national/calls-f... ) and previous ANAO commentary affirms is overly weighed towards veterans over 85 years old and war widows, who will have little or no contact with DVA’s liability and compensation areas, and will generally have little regular contact with the Department (their exposure mostly through using their DVA Gold Cards at external medical services).

As the survey, as a human research activity, would have had to have been properly formulated and cleared for use, a formal sample selection methodology as to how selection for the survey is determined must exist.

Also, I would seek any documentation recording or explaining as to why the survey is only carried out via the telephone via CATI (Computer-Assisted Telephone Interviewing) compared to online collection, using Survey Monkey or the other like platform (especially given the cost benefits).

As only a very small number of documents could possibly fall within this specific scope, assessment time would be minimal. The names of private individuals (which is not public servants performing their duties) and external commercial organisations may be redacted from the copy to be provided, should you wish to voluntarily devote time to that.

I seek this information to engage, with the necessary background information, in the public debate as to the reliability and suitability of the sample selection methodology DVA uses, given how it purports what those statistics represent (sample frame error seems to be significant problem based on current data, given sample is overly weighted to those with only peripheral engagement with DVA, and no engagement with DVA’s liability and compensation functions for many years).

Yours faithfully,

Verity Pane

Dear Unnamed officer,

Can you advise the third party/ies to be consulted (private citizens may simply be referred to as Private Citizen A, etc, agencies and corporate bodies need no pseudonyms as privacy doesn’t extend to such incorporated bodies).

Yours sincerely,

Verity Pane

Dear Position Number 62210022 [rather feels like talking to the Borg - 101101 lol],

I acknowledge the release of 3.5 pages from the two documents totalling 53 pages, and your decision that states these are the only two documents in existence (and explicitly only these 3.5 pages) that exist detailing the methodology of an expensive multi-year contracted external consultancy run survey of DVA clients.

Unfortunately it appears you looked part of the scope at a minimum, which also included any document that recorded or explained as to why the survey is only carried out via the telephone via CATI (Computer-Assisted Telephone Interviewing) compared to online collection, using Survey Monkey or the other like platform (especially given the cost benefits).

Can you confirm no such documents exist and that no other document detailing the methodology of this multi-year rather expensive survey exists?

While I didn’t expect volumes, three and a half pages of most generic text seems awfully light for such a large survey study, particularly since the only documents provided are the third party’s and none are DVA’s.

Did DVA simply leave it up to the contractor alone, with no direction given, as to how the survey was to be run? That seems rather against Commonwealth procurement guidelines.

As you’ll probably claim the decision is now functus officio (in error I might add), I seek internal review to ensure a proper search for all relevant documents has occurred for all, and not just part of the scope of the FOI, as it seems the search has been very inefficient indeed.

Yours sincerely,

Verity Pane

Dear Unnamed Officer,

Sorry, that should have been *overlooked* not looked.

Yours sincerely,

Verity Pane

Dear Unnamed Officer,

It seems apparent from the following extract from one of the 3.5 pages released that DVA holds additional documents that fall into the scope of the FOI made:

“In Phase 1 we will work closely with the DVA project team to finalise the CATI sample design in light of the research objectives and likely questionnaire content, to ensure that there is scope in the sample for us to ‘drill down’ into the findings for specific cohorts within the client base to undertake more tailored and sensitive analysis”

So the 3.5 pages of documents released (one page of which is a copy of another page released really) are not the survey methodology details, but rather a preliminary discussion about formulating the survey methodology details, prior to that occurring.

It appears readily apparent that the DVA project team referred to holds the documents that that do actually fall in scope, but for which it appears DVA did not deliberately search.

Internal review is therefore necessary in order for DVA to search the most relevant place, which it artificially excluded in this response.

Disappointing that such games are being playing, contrary to the objectives of the FOI Act.

Yours sincerely,

Verity Pane

Attn Unnamed DVA Information Law Officer,

Yet again another last minute, poorly drafted and opaque decision, from the corrupt and unethical DVA.

Yet again, your decsion notice is invalid as it fails to identify who issued it.

Recently published here on Right to Know was an OAIC document and decision that specified that s 26(1)(b) and OAIC FOI guideline 3.181 work in tandem to require that any FOI decision that relates to a document of an agency, must disclose in the FOI decision notice, their identity.

The OAIC stated in its 8 June 2018 ICON circular to agencies that:

Where the decision relates to a document of an agency, the decision notice needs to include the name and designation of the person making the decision, including the decision maker’s first name, surname and title, to clearly explain their authority to make the decision [FOI Guidelines 3.181]

The decision notice I received today from DVA is non-compliant with that and in breach of s 26(1)(b) and Guideline 3.181, in that a pseudonym instead of the actual name of the delegate has been used.

I will seek internal review of this decision, on this and other grounds

Mrs Pane

From: Verity Pane
Sent: Tuesday, October 16, 2018 12:23 am
To: [email address]
Subject: s 54L(3) IC Review of DVA Internal Review Decision 24470 (Of DVA FOI 23543) - Access Refusal

To the OAIC,

While you will do your usual best efforts to ignore, delay and stall this IC Review application, the process still has to be followed.

IC Review:
Applicant - Verity Pane
Where notices can be sent: This email address
Respondent Agency - Department of Veterans’ affairs
DVA Reference - Internal Review Decision 24470 (of DVA FOI 23543)
Decision - https://www.righttoknow.org.au/request/c...
Type of Decision - Access Refusal Decision (a decision giving access to a document, but not all the documents, to which the request relates; and decision purporting to give access to all documents to which a request relates, but not actually giving that access)

s 55D(1) of the FOI Act states that the agency orhas the onus of establishing that the decision is justified or that the Information Commissioner should give a decision adverse to the IC review applicant. The grounds raised therefore are required to assessed in that context - it is not the job of the applicant toprove the decision is flawed, but if a relevant ground is raised by the Applicant, the OAIC then needs to raise that with agency and test the response they receive. If insufficient evidence is provided to displace the complaint raised, then the onus has not been met.

Review by the Information Commissioner is a merit review process. The Commissioner does not simply review the reasons given by the agency or minister, but determines the correct or preferable decision in the circumstances. The Commissioner can access all relevant material, including material that the agency or minister claims is exempt.

The Information Commissioner may obtain any information from any person and make any inquiries that the Commissioner considers appropriate (s 55(2)(d)). For example, the Commissioner may request information about the agency’s decision early in the review process. Those inquiries may help the Commissioner in forming a preliminary view about the issues to be addressed or the merit of a decision. The Commissioner also has a specific power to make preliminary inquiries in order to determine whether to undertake a review (discussed below at [10.80]) and the power to compel agencies to participate in a number of information gathering processes (discussed at [10.89]–[10.97]). The Commissioner could also seek expert assistance from agency staff or another party where documents involve complex or technical issues.

Grounds of complaint

1) Both the original FOI decision and the Internal Review decision notices were invalid, not meeting the requirements of s 26(1)(b) and FOI Guideline 3.181, as neither included the required information to identify the decision maker, which as per the OAIC ICON circular of 8 June 2018 (which was circulated to agencies including DVA), states “where the decision relates to a document of an agency, the decision notice needs to include the name and designation of the person making the decision, including the decision maker’s first name, surname and title, to clearly explain their authority to make the decision”.

This required information is not merely incidental to an FOI decision but integral - it is provided so the receiver knows who to contact about the decision, and to determine whether the person who issued it is in fact authorised to do so (such as by independently checking the agency’s FOI delegations/authorisations list). It is simply not enough to assert that the agency knows who issued the decision, or is confident they are authorised to do so - it is not a question for the agency alone to determine.

Because the original decision and the subsequent Internal Review decision are invalid due to failure to satisfy s 26(1)(b) and Guideline 3.181, they must be reissued, so that decision notices include the required information and become valid.

It needs to be said, that it is entirely up to DVA who it uses for FOI decision notices. If it does not wish to disclose the identity of junior staff (not that the DVA Information Law FOI delegate’s are junior, with them at APS6/EL1 level or higher) , it is entirely within its powers to make its senior officers its FOI delegates, such that it never has to give its junior officer’s names out.

Similarly, claims that the release of this information will lead to calamity and prejudice to DVA’s operations is untenable. DVA is the only agency to my knowledge using pseudonyms instead of names in its FOI decisions (even Centrelink-DHS, although partially non-compliant, doesn’t use pseudonyms in its FOI decision notices, despite having large numbers of generally unhappy, sometimes violent, clients). The incidence of any prejudice is extremely low, and DVA has numerous policy, administrative and legal tools available to it to manage such incidences to quickly and rapidly resolve such isolated issues (such as establishing and enforcing SPOC, blocking emails and calls at the email server and PABX from an offending person, etc). There is no real potential for ongoing prejudice to operations, and more to the point s 26(1)(b) and Guideline 3.181 require the information to be provided.

2) Inadequate search (inference is intentionally inadequate)

The FOI Act provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act. Therefore, agencies must be able to demonstrate that they have searched sufficiently for the documents so that compliance with with this part of the FOI Act can be achieved.

The FOI Act is silent about what an agency must do in terms of searching for documents that may be relevant to a request but Agencies must undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's environment. In Chu v Telstra Corporation Limited (2005) 89 ALD 39 at 35, Finn J determined that ‘Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes' (such as poor record keeping or turnover of staff).

At a minimum, the Information Commissioner has stated that an agency should take comprehensive steps to locate a document.

The Information Commissioner has stated that, as a minimum, an agency should conduct a search by using existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents.

Section 24A requires an agency to take ‘all reasonable steps’ to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

One difficulty with IC reviews on inadequate searches is that the OAIC does not search for documents itself to confirm whether relevant documents do exist and have been unlawfully excluded, but relies exclusively on the agency to confirm if adequate searches have taken place. The agency itself has a vested interest to uphold its decision, so in the past there have been incidents of the OAIC taking an agency’s claims at face value, which have subsequently proved to be untrue in later discovery proceedings. The history of the Information Commissioner’s enquiries about whether adequate searches have been conducted demonstrate a perfunctory reliance solely on the honesty of the agency staff involved, which has proven to be often found wanting. It is far to easy for an agency to send a few emails purporting steps it has undertaken, without actually having carried out those steps, as they are aware the OAIC won’t confirm the veracity of anything said or claimed.

I am aware of at least one prior DVA matter that the Information Commissioner investigated, where documents relevant to the Information Commissioner’s investigation were withheld from the Commissioner, but subsequently were identified in later proceedings as having been withheld by DVA.

Therefore to determine whether a proper identification of all documents within scope of the FOI request were is identified in the document schedule, reference must be made to that which the DVA has already disclosed.

It is a matter of public record that DVA contracted Orima Research Pty Ltd in May 2018 to deliver the 2018 Client Satisfaction Survey, at the cost of $260,000 (therefore a significant contract). DVA disclosed in its original FOI decision, in the 3.5 pages (of which one page was in reality a copy of the other) it released out of the 54 pages (across the two documents it partially released), that the documents were:
* Firstly, not documents of DVA’s creation, but were both documents created by Orima Research Pty Ltd, and were essentially tender proposal documents, which were deliberative in nature and not actual research design records (not even a human research ethics committee record). This means that for a quarter of a million dollar project, DVA alleges it never created any document itself that came within scope, and that no document it has control of, exists in addition to these just 54 pages. That is untenable. [It should also be noted that DVA contracts Orima Research Pty Ltd for a wide range of activities and contracts them each year in excess of $2m per year]

* Secondly, Page 9 of the second document released refers to ‘the DVA project team...’ for the 2018 Client Satisfaction Survey, and that further consultations will take place with the DVA project team about finalising the methodology of the survey. It is untenable that, given DVA had an internal project team with responsibility for finalising the survey methodology, never put anything down in writing on Commonwealth record. Similarly, it is untenable that a human research project like the Departmental Client Satisifaction Survey was never considered by the DVA Human Research Ethics Committee (such surveys are reviewed by HRECs).

* Thirdly, a contact I have in the Department has confirmed that DVA is not being honest here, and that there was DVA Project Team for the 2018 Client Satisfaction Survey in Assistant Secretary Dr Paul Nicolarakis‘s Data, Informatics & Research area of DVA. The information obtained was that they do indeed have documents within scope given the descriptions of the activities they were involved in.

Given DVA has previously mislead the OAIC, the OAIC should not just take at face value the claims of DVA’s Information Law area or the Legal Services & Assurance area. The OAIC should actually confirm for itself that DVA’s TRIM Content Manager contains no such records (it’s not that difficult given that the OAIC office is only 1.7km from DVA’s Sydney Office), by doing a site visit and asking DVA to search TRIM in their presence.

3) The statement of reasons, in setting out the Internal Reviewer’s reasons is perfunctory and opaque. Statements such as ‘I am satisfied the Department has undertaken additional searches and have been unable to identify any further documents’ but does not state what additional searches have been carried out in any way, nor provides any detail to support this claim in any way (the lack of any reasoning and detail, when required, infers inadequete or no search took place). The cut and paste from considerations listed in the Guidelines is not evidence that additional searches were conducted and or that all relevant documents were captured.

Similarly, the internal reviewer uses the same self referential perfunctory and opaque conclusion as to the appropriateness of the redactions made by the original decision maker, simply cite the decision of the original reviewer, without any actual evidence of consideration. Simply pointing to the evaluation made by the original decision maker and saying I agree is not the role of an Internal Reviewer, who must consider the decision de novo. The role of the internal review officer is to bring a fresh, independent and impartial mind to the review, not to simply repeat the original decision.

It is not irrelevant that this internal review decision was provided at nearly 9pm on the last day of the internal review period, and clearly was done hastily and without due care, in a perfunctory and shallow manner. It is clear that the required independent analysis an internal reviewer should bring to bear did not occur in this instance.

While the history of OAIC Information Commissioner Reviews are, of themselves, perfunctory and shallow, marked by extensive delays and outrageous leeway to agencies given, even this Internal Review decision notice might struggle to get the usual whitewash, given how much it departs from the FOI Act requirements.

Ms Verity Pane