Consultations relating to Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016
Verity Pane made this Freedom of Information request to Minister for Veterans’ Affairs
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Minister for Veterans’ Affairs,
The Project TV reported on changes proposed by the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, namely the power for the Secretary of the Commonwealth Department of Veterans' Affairs (DVA) to "leak" (as Deputy Prime Minister Barnaby Joyce stated in his interview with The Project TV) otherwise protected personal information about a veteran or veterans who complain about DVA's regular abuses of power and unethical behaviour. A copy of that segment and interview are here https://tenplay.com.au/channel-ten/the-p...
The amendments in Schedule 2 of the Bill give essentially wide discretion to the Secretary of DVA to disclose otherwise protected personal information about a veterans or veterans, to anyone the Secretary chooses, that would otherwise be unlawful under the Privacy Act and, potentially, defamation law. All that is required is for the Secretary to claim that doing so is in the "public interest", with no real safety net - the Secretary of DVA has no real objective test to meet in relation to what is the "public interest" - it is whatever he or she claims it to be.
In a statement provided by you, the Minister of Veterans' Affairs, Dan Tehan, to The Project TV (copy to be found here https://tenplay.com.au/channel-ten/the-p... ), you said:
"This Bill passed the House with bipartisan support after three months of public exposure, which included the scrutiny of two Senate committees, a public hearing and submissions, cross-party consultation, consultation with the Privacy Commissioner and the Commonwealth Ombudsman and consultation with the ex-service community. The government took on board all suggestions and recommendations throughout this process. The Bill has also undergone a privacy impact assessment. We have consulted extensively and nothing will happen without the support of Parliament."
I request copy of all notes, records, minutes, and any and all other documents and records in the Office of the Minister of Veterans' Affairs, and the personal office of Dan Tehan MP, possession and/or control that can be legally obtained via FOI, that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which you, as Minister, claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Minister for DVA or any staff member of his offices).
As this matter is being publicly reported and debated in the media, and has generated considerable controversy, this is a matter of public importance and interest, and given these "consultations" are fairly recent events (the subject of Hot Issues Briefs and Question Time Briefs, etc), these records will be well known to you and your staff and immediately to hand. I therefore argue that it would contrary to the objects and objectives of the Freedom of Information Act to seek to levy charges for access.
Furthermore, I do not consent to the redaction or obfuscation of the names of Commonwealth officials and elected representatives, in any records that fall within the scope of this FOI request.
The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia [see The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) for formally legislated example].
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. Such information may often also be publicly available, such as on an agency website.
Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual.
It would not be reasonable for officers to contend that their names when associated with their work is exempt, unless that person already has a protected status due to DVO, covert duties, etc (that is, present a substantive and objective increase in endangerment of the life or physical safety of the person concerned).
As Justice Mahoney held "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs... Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information... That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."
Similarly Justice Kirby stated "It cannot properly be said that the disclosure of the names of... [public sector] employees involved in the preparation of reports... can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."
See also:
'HJ' and Australian Federal Police [2015] AICmr 71 (6 November 2015)
Stephen Waller and Department of Environment [2014] AICmr 133
However I have no objection to the redaction of irrevalant information such as the telephone numbers or other contact details of Commonwealth officials or elected officials in any such record that falls within the scope of this FOI request.
Yours faithfully,
Verity Pane
Dear Ms Pane,
Freedom of Information Request: FOI 14365
I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act). Your request is in the following terms:
I request copy of all notes, records, minutes, and any and all other documents and records in the Office of the Minister of Veterans' Affairs, and the personal office of Dan Tehan MP, possession and/or control that can be legally obtained via FOI, that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which you, as Minister, claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Minister for DVA or any staff member of his offices).
We received your request on 4 March 2017 and the 30 day statutory period for processing your request commenced from the day after that date. You should therefore expect a decision by 3 April 2017. The period of 30 days may be extended if we need to consult third parties, impose a charge or for other reasons. We will advise you if this happens.
You will be notified of any charges in relation to your request as soon as possible, before we process any requested documents or impose a final charge.
We will contact you using the email address you have provided. Please advise if you would prefer us to use an alternative means of contact.
If you have any questions, please contact me using the following details:
Post: GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6337
Email: [Minister for Veterans’ Affairs request email]
Yours sincerely
Shihara Caner
Information Access Officer
Information Law
Legal Services, Assurance & Deregulation
7 March 2017
-----Original Message-----
From: Verity Pane [mailto:[FOI #3187 email]]
Sent: Saturday, 4 March 2017 2:14 AM
To: FOI <[email address]>
Subject: Freedom of Information request - Consultations relating to Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [TO BE CLASSIFIED]
Dear Minister for Veterans’ Affairs,
The Project TV reported on changes proposed by the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, namely the power for the Secretary of the Commonwealth Department of Veterans' Affairs (DVA) to "leak" (as Deputy Prime Minister Barnaby Joyce stated in his interview with The Project TV) otherwise protected personal information about a veteran or veterans who complain about DVA's regular abuses of power and unethical behaviour. A copy of that segment and interview are here https://tenplay.com.au/channel-ten/the-p...
The amendments in Schedule 2 of the Bill give essentially wide discretion to the Secretary of DVA to disclose otherwise protected personal information about a veterans or veterans, to anyone the Secretary chooses, that would otherwise be unlawful under the Privacy Act and, potentially, defamation law. All that is required is for the Secretary to claim that doing so is in the "public interest", with no real safety net - the Secretary of DVA has no real objective test to meet in relation to what is the "public interest" - it is whatever he or she claims it to be.
In a statement provided by you, the Minister of Veterans' Affairs, Dan Tehan, to The Project TV (copy to be found here https://tenplay.com.au/channel-ten/the-p... ), you said:
"This Bill passed the House with bipartisan support after three months of public exposure, which included the scrutiny of two Senate committees, a public hearing and submissions, cross-party consultation, consultation with the Privacy Commissioner and the Commonwealth Ombudsman and consultation with the ex-service community. The government took on board all suggestions and recommendations throughout this process. The Bill has also undergone a privacy impact assessment. We have consulted extensively and nothing will happen without the support of Parliament."
I request copy of all notes, records, minutes, and any and all other documents and records in the Office of the Minister of Veterans' Affairs, and the personal office of Dan Tehan MP, possession and/or control that can be legally obtained via FOI, that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which you, as Minister, claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Minister for DVA or any staff member of his offices).
As this matter is being publicly reported and debated in the media, and has generated considerable controversy, this is a matter of public importance and interest, and given these "consultations" are fairly recent events (the subject of Hot Issues Briefs and Question Time Briefs, etc), these records will be well known to you and your staff and immediately to hand. I therefore argue that it would contrary to the objects and objectives of the Freedom of Information Act to seek to levy charges for access.
Furthermore, I do not consent to the redaction or obfuscation of the names of Commonwealth officials and elected representatives, in any records that fall within the scope of this FOI request.
The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia [see The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) for formally legislated example].
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. Such information may often also be publicly available, such as on an agency website.
Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual.
It would not be reasonable for officers to contend that their names when associated with their work is exempt, unless that person already has a protected status due to DVO, covert duties, etc (that is, present a substantive and objective increase in endangerment of the life or physical safety of the person concerned).
As Justice Mahoney held "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs... Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information... That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."
Similarly Justice Kirby stated "It cannot properly be said that the disclosure of the names of... [public sector] employees involved in the preparation of reports... can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."
See also:
'HJ' and Australian Federal Police [2015] AICmr 71 (6 November 2015) Stephen Waller and Department of Environment [2014] AICmr 133
However I have no objection to the redaction of irrevalant information such as the telephone numbers or other contact details of Commonwealth officials or elected officials in any such record that falls within the scope of this FOI request.
Yours faithfully,
Verity Pane
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #3187 email]
Is [Minister for Veterans’ Affairs request email] the wrong address for Freedom of Information requests to Minister for Veterans’ Affairs? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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Dear Ms Pane,
Freedom of Information Request: FOI 14365
I refer to your request under the Freedom of Information Act 1982.
We received your request on 4 March 2017 and the 30 day statutory period for processing your request commenced from the day after that date. However, section 15(6) of the FOI Act allows for an additional 30 days to process the request if the Department needs to consult with third parties about documents that contain business information about those third parties.
The scope of your request covers documents containing the personal information of a third party. The Department considers it necessary to consult with this third party under section 27A of the FOI Act. As a result, section 15(6) of the FOI Act allows for an additional 30 days to process your request. You should now expect a decision by 3 May 2017.
We will contact you using the email address you have provided. Please advise if you would prefer us to use an alternative means of contact.
If you have any questions, please contact me using the following details:
Post: GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6316
Email: [Minister for Veterans’ Affairs request email]
I apologise for the delay in providing you with notification of this extension.
Yours sincerely
Frank White
Assistant Director
Information Law
Legal Services & Assurance
-----Original Message-----
From: Verity Pane [mailto:[FOI #3187 email]]
Sent: Saturday, 4 March 2017 2:14 AM
To: FOI <[email address]>
Subject: Freedom of Information request - Consultations relating to Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 [TO BE CLASSIFIED]
Dear Minister for Veterans’ Affairs,
The Project TV reported on changes proposed by the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, namely the power for the Secretary of the Commonwealth Department of Veterans' Affairs (DVA) to "leak" (as Deputy Prime Minister Barnaby Joyce stated in his interview with The Project TV) otherwise protected personal information about a veteran or veterans who complain about DVA's regular abuses of power and unethical behaviour. A copy of that segment and interview are here https://tenplay.com.au/channel-ten/the-p...
The amendments in Schedule 2 of the Bill give essentially wide discretion to the Secretary of DVA to disclose otherwise protected personal information about a veterans or veterans, to anyone the Secretary chooses, that would otherwise be unlawful under the Privacy Act and, potentially, defamation law. All that is required is for the Secretary to claim that doing so is in the "public interest", with no real safety net - the Secretary of DVA has no real objective test to meet in relation to what is the "public interest" - it is whatever he or she claims it to be.
In a statement provided by you, the Minister of Veterans' Affairs, Dan Tehan, to The Project TV (copy to be found here https://tenplay.com.au/channel-ten/the-p... ), you said:
"This Bill passed the House with bipartisan support after three months of public exposure, which included the scrutiny of two Senate committees, a public hearing and submissions, cross-party consultation, consultation with the Privacy Commissioner and the Commonwealth Ombudsman and consultation with the ex-service community. The government took on board all suggestions and recommendations throughout this process. The Bill has also undergone a privacy impact assessment. We have consulted extensively and nothing will happen without the support of Parliament."
I request copy of all notes, records, minutes, and any and all other documents and records in the Office of the Minister of Veterans' Affairs, and the personal office of Dan Tehan MP, possession and/or control that can be legally obtained via FOI, that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which you, as Minister, claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Minister for DVA or any staff member of his offices).
As this matter is being publicly reported and debated in the media, and has generated considerable controversy, this is a matter of public importance and interest, and given these "consultations" are fairly recent events (the subject of Hot Issues Briefs and Question Time Briefs, etc), these records will be well known to you and your staff and immediately to hand. I therefore argue that it would contrary to the objects and objectives of the Freedom of Information Act to seek to levy charges for access.
Furthermore, I do not consent to the redaction or obfuscation of the names of Commonwealth officials and elected representatives, in any records that fall within the scope of this FOI request.
The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia [see The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) for formally legislated example].
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. Such information may often also be publicly available, such as on an agency website.
Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual.
It would not be reasonable for officers to contend that their names when associated with their work is exempt, unless that person already has a protected status due to DVO, covert duties, etc (that is, present a substantive and objective increase in endangerment of the life or physical safety of the person concerned).
As Justice Mahoney held "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs... Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information... That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."
Similarly Justice Kirby stated "It cannot properly be said that the disclosure of the names of... [public sector] employees involved in the preparation of reports... can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."
See also:
'HJ' and Australian Federal Police [2015] AICmr 71 (6 November 2015) Stephen Waller and Department of Environment [2014] AICmr 133
However I have no objection to the redaction of irrevalant information such as the telephone numbers or other contact details of Commonwealth officials or elected officials in any such record that falls within the scope of this FOI request.
Yours faithfully,
Verity Pane
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #3187 email]
Is [Minister for Veterans’ Affairs request email] the wrong address for Freedom of Information requests to Minister for Veterans’ Affairs? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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Dear Frank,
To cease this unethical stalling, and given I did not request the personal information of any party (and the names of public servants and other Commonwealth officials carrying out their official duties is not personal information as per the legal decisions referred to earlier), I consent to any "personal information" as defined by the Privacy Act and court rulings being redacted (just note which documents within scope that this applies to, specifically), rather than you hold hostage the bulk of the documents in scope.
Given this consent, DVA no longer has any basis to continue to refuse to meet the statutory deadline it was always required to.
Yours sincerely,
Verity Pane
Dear Frank,
As you have continued to unlawfully withhold this FOI decision, even with consent given to redact any PI you claim is the basis for further delay, said consent is revoked (given you clearly are acting in bad faith).
Yours sincerely,
Verity Pane
Dear Ms Pane
Freedom of Information Requests: FOI 14364, 14365 and 14536
I refer to your recent requests under the Freedom of Information Act 1982.
Please find attached the Statement of Reasons and documents released to
you.
If you have trouble viewing the documents, please don’t hesitate to
contact us.
Kind regards,
Nadia Vittoria
Legal Officer
Information Law
Legal Services & Assurance
3 May 2017
--------------------------------------------------------------------------
IMPORTANT
1. Before opening any attachments, please check for viruses.
2. This e-mail (including any attachments) may contain confidential
information
for the intended recipient. If you are not the intended recipient,
please contact the sender and delete all copies of this email.
3. Any views expressed in this e-mail are those of the sender and are not
a statement of Australian Government Policy unless otherwise stated.
4. Electronic addresses published in this email are not conspicuous
publications and DVA does not consent to the receipt of commercial
electronic messages.
5. To unsubscribe from emails from the Department of Veterans' Affairs
(DVA) please go to
http://www.dva.gov.au/contact_us/Pages/f...
, and advise which mailing list you would like to unsubscribe from.
6. Finally, please do not remove this notice.
Dear Ms Pane
Freedom of Information Requests: FOI 14364, 14365 and 14536
I refer to your recent requests under the Freedom of Information Act 1982.
Please find attached the Statement of Reasons and documents released to
you.
If you have trouble viewing the documents, please don’t hesitate to
contact us.
Kind regards,
Nadia Vittoria
Legal Officer
Information Law
Legal Services & Assurance
3 May 2017
--------------------------------------------------------------------------
IMPORTANT
1. Before opening any attachments, please check for viruses.
2. This e-mail (including any attachments) may contain confidential
information
for the intended recipient. If you are not the intended recipient,
please contact the sender and delete all copies of this email.
3. Any views expressed in this e-mail are those of the sender and are not
a statement of Australian Government Policy unless otherwise stated.
4. Electronic addresses published in this email are not conspicuous
publications and DVA does not consent to the receipt of commercial
electronic messages.
5. To unsubscribe from emails from the Department of Veterans' Affairs
(DVA) please go to
http://www.dva.gov.au/contact_us/Pages/f...
, and advise which mailing list you would like to unsubscribe from.
6. Finally, please do not remove this notice.
Dear Minister for Veterans’ Affairs,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Minister for Veterans’ Affairs's handling of my FOI request 'Consultations relating to Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...
Yours faithfully,
Verity Pane